Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 50
Question proposed: "That section 50 stand part of the Bill."

I welcome the Minister back to the House. On the last occasion progress was reported on section 50, but no Senator had contributed on the section. I am happy to hear contributions by Senators on it.

The section is not agreed to.

The note I have tells me that no Senator had contributed on the section. Is any Senator offering to speak to it or is the Minister offering to do so?

I wish to speak to the section.

Is the Senator offering?

Yes. Why not? First, I thank the Minister for his constant attendance in the Seanad because it has been quite a long period and he has made-----

That is not relevant to the section.

With respect, Senator, I will decide that matter. Please, Senator Norris.

It is worthwhile complimenting the Minister on making such an effort to be here for the debate.

As the Senator knows, we are on Committee Stage.

I understand he has come here today from Cork to be with us, which is very much appreciated.

Amendments Nos. 97a to 97c, inclusive, would have inserted the most obvious requirement - experience - and I am sorry that they have not been accepted by the Minister. I do not know how he can suggest experience is not a necessary attribute a candidate for judicial office must hold.

Of course, if the Minister, Deputy Ross, had his way, who should hold judicial office would be decided by a public ballot or readership poll in the Sunday Independent. The absence of experience as a criterion is symbolic of the overriding objective of the Bill - to cleanse the judicial appointments process of any semblance of achieving quality among the Judiciary. The Bill is driven by a petty desire, based on raw emotion, to corrosively damage an institution that most of the country believes has served the State well. The Minister has, in fact, said the judges who have been appointed under the system are all decent and well regarded. What defence can he possibly have in refusing these minuscule amendments which seek to ensure that, at the very least, there would be trinkets of light and that experience would actually matter when it came to deciding who should serve in what is arguably the most important position in the State? That is the only comment I want to make on the section.

I must correct myself slightly. I am advised that we were on amendment No. 97c, amendments Nos. 97a and 97b having been disposed of.

We have not yet got to section 50.

Amendment No. 97c is to section 50.

May I make the same speech again?

The Senator may not, but I thank him for offering.

What if I made it in Irish?

No, the Senator will not be allowed to make it again in any language. I might not understand him, but that is neither here nor there.

The Leas-Chathaoirleach has difficulty in understanding me in English.

Is Senator McDowell pressing the amendment?

I believe the amendment is lost.

I am now advised that the amendment was decided previously and declared lost.

Can we call a walk-through vote?

No, there will be no further proceedings on it.

Question put:
The Committee divided: Tá, 18; Níl, 5.

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Ó Donnghaile, Niall.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.

Níl

  • Bacik, Ivana.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Norris, David.
Tellers: Tá, Deputies Gabrielle McFadden and John O'Mahony; Níl, Deputies Michael McDowell and David Norris.
Question declared carried.
NEW SECTIONS

Order, please. Senators should leave the Chamber quietly.

I move amendment No. 97ca:

In page 33, between lines 20 and 21, to insert the following:

51. (1) The Minister may, in respect of any vacancy in the District Court, the Circuit Court and the High Court, at the time of making a request to the Commission in accordance with section 40, direct the Commission to have regard to a specified class of business in a court to which it is reasonably anticipated that an appointee to a particular vacancy would deal with.

(2) The Commission shall have regard to any direction made by the Minister under this section in discharging its functions in respect of any appointment in respect of which the direction applies.

(3) The Minister may from time to time consult with the Presidents of the Court of Appeal, the High Court, the Circuit Court and the District Court in relation to the making of directions under this section.

(4) Where more than one vacancy is to be considered by the Commission in accordance with section 41, the Minister’s direction under this section may apply to one or more of such vacancies as the Minister may direct.”.

This amendment is to insert a new section before section 51 on page 33, between lines 20 and 21. The text of the proposed amendment is as follows:

(1) The Minister may, in respect of any vacancy in the District Court, the Circuit Court and the High Court, at the time of making a request to the Commission in accordance with section 40, direct the Commission to have regard to a specified class of business in a court to which it is reasonably anticipated that an appointee to a particular vacancy would deal with.

It should be "with which".

Yes, it should be "with which".

One should never end with a preposition.

Subsection (2) states: "The Commission shall have regard to any direction made by the Minister under this section in discharging its functions in respect of any appointment in respect of which the direction applies." Subsection (3) states: "The Minister may from time to time consult with the Presidents of the Court of Appeal, the High Court, the Circuit Court and the District Court in relation to the making of directions under this section." and subsection (4) states: "Where more than one vacancy is to be considered by the Commission in accordance with section 41, the Minister's direction under this section may apply to one or more of such vacancies as the Minister may direct."

The reason the amendment is being proposed is as follows. If, for instance, it is determined that we want to appoint two more family law judges, let us say at District Court or Circuit Court level, the present scheme of the Bill does not allow the Government, which is going to take advice from the commission, to tell it that the president of the court is looking for a person most likely to have specialised in family law. It is for the Government to decide that rather than simply the president of the court himself or herself. Likewise, if the Government wants more criminal judges, let us say in the Circuit Court, there is no point in having a competition where people who would be family law judges spend hours and hours preparing applications for a particular appointment and behind the scenes it has already been decided at Government level that it is hunting for two extra criminal law judges. Therefore, what Senators Boyhan and Craughwell and I believe is essential in these circumstances is that the process of advertising a vacancy and interviewing people should not proceed as though replicating the navigation of a submarine without a periscope. If the name of the game is to get two extra family law judges, why advertise the position to people who would not be interested in being appointed to that particular aspect of the court's business, and vice versa, if it is in relation to crime? If the Government is seeking extra criminal judges, why would people who have no interest whatsoever in criminal law and no record in criminal law feel that they should apply on the basis that this could be a family law vacancy, a civil law vacancy or a refugee law vacancy when the Government is not looking to appoint somebody to such a position?

A deficiency with the Bill at present is that the procedures permit the commission to differentiate between different classes of business to which a judge is likely to be appointed. It does not allow the Government to say that it is interested in two extra judges, whether criminal, family or bankruptcy judges. It does not permit the commission, in its advertisements, to say that it is hunting for family law judges so if one does not want to spend one's life doing family law, that person should not apply for this position because he or she will be disappointed because he or she will be sent to do family law work in County Kerry or Limerick. It seems to me to be common sense that the policy in this regard should be determined by the Government. The president of a court will frequently say that he or she needs more family law judges and will communicate that to the Minister, saying that the court is sorely pressed in the family law area. It is for the Government to decide that it is willing to make such extra appointments. If the Government is so minded, there should be a mechanism to direct the appointments commission to do two things. It should make it clearly apparent to the would-be applicants what kind of appointment is likely to be made and what kind of specialism is likely to be the subject of the appointment. It should concentrate its own efforts on getting such a person, which this amendment proposes.

I support Senator McDowell in this amendment. He seems to me to be following the same line of argument that he did in the previous amendments. That is essentially that, when looking at the principle for appointment to these courts, one needs expertise in the business of those particular courts. As he rightly says, if there is a vacancy or need for extra judges in the family courts, there is not much point in appointing somebody whose experience is in property and conveyancing, because that person would not have the relevant experience. I do not anticipate that the Minister will accept this because if he did not accept the amendments which dealt with the question of experience, he is hardly likely to accept this amendment. Although it does not mention experience, the principle is quite clear that people should be appointed on the basis of the experience that they have in the court so that we get appropriate appointments and not inappropriate ones.

On a point of order, Senator Norris pointed out that in the fourth line of the amendment, the word "to" should be "with". I ask the House's leave to amend the amendment to make it grammatical.

Yes. It is completely wrong to end a sentence with a preposition.

Whatever about a preposition, Senator Norris's premonition about the Minister's disposition is correct.

I can read the Minister like a book.

Senator Norris should not have been anticipating it.

I will not accept the amendment for two reasons. I will not do anything, nor would I encourage anybody to do anything, that might in any way encroach upon the independence of the commission. If there are issues of merit in the submission made by Senator McDowell in support of this amendment, they would be properly dealt with by the commission. Having regard to its independence, I am reluctant to build in any ministerial direction. Under the legislation as drafted, we have participation on the commission by representatives of all the courts so that the issues referred to by Senator McDowell can be dealt with by dint of the independence of the commission and having regard to the attendance at the commission of the presidents of all the courts.

The Minister makes a fair point that there are judges on this. One would assume that they would raise these issues but I am not convinced by his argument about independence. I do not see that laying down the framework for the commission and the principles by which it operates limits its independence. One sets out these things first of all and after that is done, of course it is independent, and nobody will interfere with it.

The knee-jerk reaction of the Minister is regrettable. It is nothing to do with the independence of a body that it should receive a direction which it should take into account. The phraseology of the amendment does not trench on the independence of the commission at all. If we go back to the section that we have just approved, section 50, considering that we have been told that experience is not to feature, states:

The power to prepare a statement of requisite skills and attributes under this Part includes a power to prepare different statements of requisite skills and attributes by reference to—

(a) different judicial offices, or

That is fair enough. It continues: "(b) in the case of judicial offices in the same court, different classes of business in that court that it is reasonably anticipated a particular appointee to such office would deal with." The principle is already there.

It got the preposition wrong too.

No, it states: "that it is reasonably anticipated a particular appointee to such office would deal with."

It still ends with a preposition.

That is a different matter. I was taking up the phraseology of the draftsman, who I will not criticise in this respect. It is already part of the Minister's scheme that a particular appointee will be appointed or recommended for appointment on the basis that he or she may be carrying out a different class of business in the court to which he or she is appointed. That is already there. It is the Minister's policy. If the Government wants more family law judges, it is the Minister's and the Government's responsibility to tell the commission that. It is not trenching on their independence. It is not their function to determine that there should be a particular balance of judges of one class or another. It is for the Government of the day to say that it wants more criminal judges and not more family judges, since that court is well enough manned, if I can use that phrase, as things stand. When setting out a statement of requisite skills and attributes, if one accepts the proposition that the likelihood that a particular appointment will go to a particular division of a particular court, the obvious thing to do before the commission embarks on that task is for the Government to say that it wants the commission to have regard to the fact that we are seeking an extra appointment to deal with family law rather than criminal law.

That would especially take place in the context of what the Minister is doing with expanding the Court of Appeal by a significant number of judges. If all of the newly-appointed judges under his proposed statutory amendment were on the criminal side, it might be a good thing or it might be a bad thing. At least, the Government is entitled, especially when increasing the resources of a court, to direct those resources towards a particular end of the courts’ variety of categories of business.

It is regrettable that it should be stated that this somehow trenches on the independence of the commission. The commission itself, under section 50(2), has to consider a situation in which it is reasonably anticipated that a particular appointee would be dealing with a particular class of business. If the Oireachtas decides to appoint five extra judges to the District Court to strengthen its family law side, if that is the purpose of expanding the number of judges in the District Court under legislation, the Government should be entitled to send a totally transparent direction to the commission stating it is appointing these five extra judges and making provision for them in statute on the basis it wants to expand the family law capacity of the District Court. If that is the Government’s intention, it is no imposition on the commission’s independence that it should have regard to a direction along those lines given by the Minister. The Government is not telling the commission who it has to appoint. It is merely to say that it is interested in family law appointees and that is why it is creating these extra positions. Could anything be more innocent than that? Could anything be more reasonable than that? Could anything be less likely to cause trouble?

I will give the Minister another example. Supposing it was felt by the Government – this is not a matter for the Judiciary – that we needed an extra expert in intellectual copyright, trademark or intellectual property law? Why should the Government not be in a position to give a direction to the commission to advertise a position on the basis that it wants someone appointed capable of dealing with this area of business? When one is interviewing them, there is no point in talking to them about their experience in the District Court doing TV licence cases. This person is going to be a different person altogether. That is why this amendment is being proposed.

On making such a direction, the amendment proposes that there would be consultation with the members of the various courts involved. On occasions, the Government may need one trademark or intellectual property judge but, as there is only need for one, will it make it clear in its advertisement? This will ensure intellectual property lawyers will see one slot go to an intellectual property lawyer and they might as well apply for it. Otherwise, we will play this ridiculous blind man’s buff arrangement that people are putting in applications not knowing what is going on in the minds of the people making the appointment.

Since the principle is already established in section 50(2) that there will be people appointed who in all likelihood will be sent to do particular aspects of the law in a court, I cannot see any argument against this amendment. The one offered by the Minister that it would trench on the independence of the commission is hardly stateable. What would be wrong with saying we are creating two extra vacancies and we want one of them to be an intellectual property lawyer who can deal with patent, trademark and copyright cases? If there is nothing wrong with that, why not state so in the advertisement which the commission puts out? It can state it received a direction from the Minister that it is its intention to appoint an intellectual property lawyer. That means that all intellectual property lawyers - solicitors and barristers who specialise in this area - will see this is to what the commission will be addressing its minds. If there was only one such position coming up and such a direction was given, people, who as Senator Norris said, spent their lives doing some different and obtuse area of law, would consider themselves not suitable.

I think the Senator meant obscure.

The law could never be obtuse.

I did not attend Senator Norris’s lectures. I was one of those who was left outside trying to get in because of the crowds.

It was because of the enormous crowds.

The Senator did well anyway.

No interruptions.

Going back to the question of independence, in section 51(b), the Minister already directs that we should take into account skills, competences, personal attributes and characteristics. God alone knows what personal attributes are. Must someone have a beard or red hair? Is it a case about when one made one’s first holy communion? It is completely all over the place.

The Minister could argue that when he introduced the questions of skills and competencies, it could be translated to include experience in an area. I cannot for the life of me see why there should not be an advertisement which refers to the particular area of law. Senator McDowell referred to the question of intellectual property, copyright and so forth. This is an immensely complex area. I have been dealing with it in other legislation. We have had meetings with civil servants in the Department. The intricacies are beyond anything most of us imagined. It is a technical area and it would be quite wrong to put somebody in that position who does not have expertise in this area. I do not see any reason we should not refer to it in an advertisement. Otherwise, one would be getting all kinds of people with different experiences. It would be absurd to appoint some of them.

Section 50(2)(b) states:

The power to prepare a statement of requisite skills and attributes under this Part [which is a power for the commission’s procedures committee to do some drafting on] includes a power to prepare different statements of requisite skills and attributes by reference to—

b) in the case of judicial offices in the same court, different classes of business in that court that it is reasonably anticipated a particular appointee to such office would deal with.

Another sentence ending with a preposition.

Ignoring that for a second, who reasonably anticipates this? How are the appointees for that job going to know when they apply for a vacancy in the High Court, say, that it is looking for an intellectual property lawyer rather than somebody to preside over murder trials in the Central Criminal Court? How is this to be determined? This is a genuine lacuna. It is a mistake in the Bill that there is no provision for the Government to make it clear that it wants an intellectual property lawyer and not to put out advertisements to which every specialist in criminal law will spend hours preparing himself or herself to attend.

Since the requisite skills and attributes can vary from class of business within a court, why can the advertisement not vary in that way? If the advertisement is to vary in that way, and someone must make the decision as to whether it will, for example, whether the next appointee will be a criminal lawyer or an intellectual property lawyer, I believe it is the function of the Executive to make that decision, for example, that it wants an intellectual property lawyer. It is perfectly reasonable to say to the commission that it should not waste its time or the time of innocent lawyers and legal academics asking them to apply for this job without telling them that the Government wants an intellectual property lawyer and does not want another family lawyer or another criminal lawyer. It simply does not make sense. I appeal to the Minister to recognise the sense of this amendment. It certainly does not trench on the commission's independence to say that when it is making an appointment it should have regard to the Government's underlining purpose, which is to appoint an intellectual property lawyer rather than a criminal lawyer.

This goes back to the fundamental lack of honesty in the philosophy behind this Bill and, in saying that, I am not making a personal comment. It is for the Executive to choose whether we get an intellectual property lawyer. It is not for an independent body to determine we want an intellectual property lawyer. It is for the Executive to choose, for example, that we want two more criminal judges rather than for an independent body with a majority of lay people on it to determine that issue. The Executive makes its decision on these matters under the Constitution. Therefore, it is not correct to say that would trench on the independence of what is an advisory commission. Although the word "advise" has been carefully taken out to keep the Minister, Deputy Ross, happy, it still remains an advisory body. If the Government is asking for advice as to who it should appoint to a vacancy, it should at least be in a position to tell the body, from which it is seeking advice, that it intends to make a particular type of appointment. What could be more simple, honest or transparent than that? What could be more ridiculous than to say that should not happen, that the Government should not tell the body in question what kind of activity it has in mind for this person because to do so would be to trench on its independence? That is asking the body to draw up a shortlist without regard to what the Government is minded to do. That is absurd. It defies belief that this is regarded as a measure that would trench on the body's independence. It is utterly unfair, for instance, to the category of would-be family law judges that they are not told the day they apply that the vacancies, for which they are applying, are family law vacancies. It is utterly unfair to say to criminal lawyers they might as well apply but we will not tell them until afterwards that they did not succeed because the Government did not want to appoint criminal lawyers.

Since the principle is already conceded in section 50(2), it can be reasonably anticipated that a particular appointee to a vacancy in a court will be carrying out a particular class of business. Therefore, why should the commission not take guidance from the Government as to what the Government is looking for? I do not believe that even the Minister, Deputy Ross, in his wildest imagination could consider such an amendment as that prepared by myself and my colleagues to be cronyism or to tie the hands of the commission in the advice it gives. It is merely saying we are interested in a particular type of judge, please tell the applicants that is what we are doing and when conducting the interviews, to have regard to the fact that this is what we intend to do. There is nothing more sensible than that. Under section 50(2) they are already entitled to put in place different statements of procedures for different classes of business. Why can it not be that they are directed in a particular direction?

Section 50(2) states that the power to provide "a statement of requisite skills and attributes under this Part includes a power to prepare different statements of requisite skills and attributes by reference to ... in the case of judicial offices in the same court, different classes of business in that court that it is reasonably anticipated a particular appointee to such office would deal with". The principle is already conceded that there will be a different statement of attributes for an intellectual property judicial appointment but what we are saying is that if that is conceded, take the next logical step and put into the Bill some method whereby the Government can tell the commission that it wants to be advised, by means of a shortlist, of four people in that category and that it does not want to waste everybody else’s time applying futilely for something for which they are obviously unsuited.

I ask the Minister to reconsider what I have said is a knee-jerk reaction to this proposal. It is designed to be constructive, to make the system work and not waste practitioners’ time applying for positions they will never get by warning them in advance of the category of appointment that is likely to be made on foot of the shortlist. I can see nothing unfair about that or nothing that is trenching on the commission's independence. It makes plain, simple common sense to me and it should not be rejected.

From the point of view of grammar, section 50(2)(b) should read “in the case of judicial offices in the same court, different classes of business in that court with which it is reasonably anticipated a particular appointee to such office would deal" – ending with the verb. I am horrified by Senator McDowell’s reference to criminal lawyers and innocent lawyers and criminal judges. I would be devastated to think that judges were criminals. That is a horrifying thought. I do not think that is being contemplated even by the Minister, Deputy Ross.

Criminal law practitioners.

Or judges in the criminal courts. Criminal judges is a horrifying prospect.

I listened carefully to what both Senators had to say and the more I listen to Senator McDowell, the more I believe the points he makes in support of his amendment are already catered for under section 50, which has already been debated and passed.

The only other point I would make is that there is a representative of all the courts on the commission in any event. It will be the job of the commission to make a recommendation, having regard to the various submissions, discourse and debate that will take place at a commission hearing. I would assume that the representatives who were present for and on behalf of the courts would be minded to include such references as made by the Senator in their recommendation to Government. We debated earlier, for example, the role profile. That role profile would include the attributes, skills, qualities, expertise and experience, which Senator McDowell said had been deliberately omitted from the Bill. Not at all. That will be included, and a provision has been made for such.

How will applicants know what is going on?

Allow the Minister to proceed without interruption.

Ultimately, the allocation of particular judges to a particular division of the courts will be for the President, in consultation with the appropriate members of the commission or whatever.

The President of Ireland?

The general thrust of the Bill is that the commission will make the recommendation to Government. Government will act on that in accordance with its constitutional requirement and appointment will be made. There is, of course, the role for the President of Ireland and then it will be for the president of the court to make the allocation in accordance with the needs and requirements of the court at the behest or otherwise of the President.

I do not wish in any way to unduly interfere with the independence of the commission by a series of directions but even if I were minded to so do, there is sufficient information to allow for the points being made by Senator McDowell under section 50.

The problem with that-----

It is not that I am entirely opposed to the letter and spirit of the amendment; it is already covered. I do not wish to go as far as Senator McDowell.

Advertisement is not covered.

There are two problems with that. First, it is for the Government and the Oireachtas to decide how many judges there are in the High Court. We are told the Minister will bring in a Bill to increase the size of the Court of Appeal by a further six judges in the near future. In that court, that is a matter for the Government. However, I can well imagine that at some stage in the next few years, a decision will be made by the Cabinet and the Oireachtas to increase the size of, for example, the Circuit Court, to deal with family law cases. If they then, on foot of creating the six additional vacancies, for example, in family law under legislation for the Circuit Court, advertise those vacancies, surely those who apply for them are entitled to be informed by the commission by public advertisement that the Government is looking for family law lawyers. There must be some mechanism whereby the Government's policy on this matter, given that it has a licence from the Oireachtas to appoint additional judges, is conveyed not merely to the commission via the Attorney General at a private meeting but also to would-be applicants so that they know what is going on. Senator Norris mockingly accuses me of using the term "lawyers". It is only fair to tell criminal law practitioners that it is anticipated that the three vacancies that are under advertisement are likely to be assigned to family law. If that were not the case, why would the phrase appear in section 50 that "in the case of judicial offices in the same court, different classes of business in that court that it is reasonably anticipated a particular appointee [that is a named person] ..." will be assigned? One of these three persons on the shortlist will be assigned to that business. Why not tell those who are applying for that vacancy that this is one which one believes will be for intellectual property, criminal law, family law or whatever? If one accepts that principle, I cannot see what is wrong with telling the applicants that such is the case. The Minister has not provided for it in the Bill.

He has not provided that advertisements of vacancies can specify different areas of business in a court. He has also not provided for who would make that decision. He has further not provided for whether it is the Government's decision or that of the president of the relevant court's in the last analysis. If it was always simply the president of the court who assigned people, he or she would be in a weak position seeking additional appointments from the Government for the purpose of family law if in the end the commission decides that it is not particularly interested in extra family law judges and it believes the following three legal academics with expertise in civil law are the best qualified for the upcoming vacancies. It is the Government's decision to make a choice in this area as regards whether a particular judicial vacancy should be filled towards a particular end, and that is what the Attorney General is there to advise the Government on.

That is the other point. It is the function of the Attorney General to say that we need another intellectual property lawyer and for the Government then to say that is a good idea and then tell the commission to go and look for an intellectual property lawyer and not put a silly advertisement in the newspapers looking merely for another judge in the High Court and have many lawyers apply for it without telling them that in private it has been decided that the name of the game is to appoint an intellectual property lawyer.

I cannot see anything wrong with this principle. I can see every reason it should be incorporated in the Bill. It has nothing to do with the independence of the commission because if the commission published an advertisement that the Government had directed it to seek a person who would in all likelihood specialise in intellectual property law and receives a number of applications in that context, it independently makes up its mind as to who is to be on the shortlist and in what order they are to be recommended to the Government. There is no trenching on their independence by asking them to be transparent in what they are doing and in what the Government is likely to do.

I completely accept Senator McDowell's argument about the advertisement but I see nothing in his amendment about advertisement. If there is not time to table another amendment dealing with the question of advertisement, I recommend that the Senator tables it for Report Stage because it is a very important point.

I will get it in for later on Committee Stage.

I have made my position clear. The only other point I would make is that a judge is appointed ultimately having regard to consideration on the part of the commission and on the part of the Government and then back for an allocation in the normal way by the president of the court to which the appointment is appropriate. If we followed the Senator's logic, we could have a situation where a judge might be unfairly pigeonholed or unfairly labelled as a specialist in a particular area without reference to other important general or specialist skills of a different nature that might be appropriate in the context of the wider career of that judge, and that would be a concern.

Returning to what I said initially, I am happy that the Bill, under section 50, incorporates the appropriate reference to skill set, attributes, etc., that I would leave the commission engage in the type of deliberation that would be appropriate to allow it make a positive recommendation to Government and that, as we stated all along in this Bill, Government must act in accordance with the constitutional requirement.

If there is provision in this legislation for separate selection procedure statements of requisite skills and attributes to be proposed by the commission and published, which there is because that is what section 50 states, and if that is to be done on the basis that "it is reasonably anticipated a particular appointee" will deal with this kind of business, which the Bill acknowledges, surely somebody applying for the job is entitled to be told whether he or she is applying for a position on the Bench in respect of which an appointment will be made on one basis rather than another.

I have done very little family law in my career as a barrister, and I do not believe I would make a great family law judge. I admire their patience and so on and spending all day listening to the kinds of cases with which I have dealt on those very few occasions would not be my forte. However, surely I should know if a vacancy appears in the High Court, by reference to which statement of skills and attributes the position is going to be filled. Surely before I even start and waste my money on the stamp, I should be warned by the commission that it is likely that the person appointed and those shortlisted by the Government will be working in the area of family law. Surely that makes sense. I cannot see any reason that does not make sense. It seems to be ridiculous that I would be allowed to believe that I had a chance to become a judge in the High Court dealing with criminal law cases and to put in an application outlining all my experience in that area, only to find that the Government and the president of the relevant court were hunting for a different type of person and that I was wasting my time making the application. I cannot see any reason that reality cannot be taken into account.

If there are to be separate statements of requisite skills and attributes for different kinds of court business in any particular court to which it is reasonably anticipated that a particular appointee will deal with, why not tell applicants for that position that that is the case? They should know that they will be judged by reference to the intellectual property lawyer's statement of skills and attributes and not by the family law statement, or vice versa.

I believe the argument has been exhausted on that question.

Amendment put.

Will the Senators claiming a division please rise?

Senators Ivana Bacik, Gerard P. Craughwell and Michael McDowell rose.

As fewer than five Members have risen I declare the amendment lost. In accordance with Standing Order 61 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Amendment declared lost.

I move amendment No. 97cb:

In page 33, between lines 20 and 21, to insert the following:

"51. (1) The Commission shall, before publishing any statement under this Part, submit to the Minister a draft of such statement for consideration and approval by the Government.

(2) The Government shall consider any draft statement submitted to the Minister under this section and may approve of such statement as submitted or as modified by the Government.

(3) The powers of the Commission to publish a statement under this Part shall be subject to the approval of the statement by the Government.".

It seems to me that if the criteria and attributes of the judicial candidate for appointment are to be determined in accordance with Part 8 of this Bill, if a statement is to be published describing requisite skills and attributes, and if the independent commission is to be given the function of drawing up such a statement, there should also be a stage at which the Government to which the independent commission is acting as an advisory body is given the opportunity to comment on the attributes that the independent commission believes should apply to the appointment of judges.

The purpose of this amendment is to acknowledge that the advisory body is purely advisory. The commission is an advisory body under our Constitution and, because it is and because it is laying down the attributes, competencies, skills and characteristics required for appointment, the body to which advice is to be given should have some input into the criteria by reference to which selections are made. If, as I believe, it is the constitutional function of the Executive to make judicial appointments and if it is the case, as I believe, that a commission of this kind can only be purely advisory in nature, it seems strange that if the advisory body is going to advise the Government by way of shortlists on appointment by reference to statements of selection procedures and requisite skills and attributes, the body receiving the advice should have no input whatsoever in formulating the criteria by which the independent commission will draw up a shortlist and make recommendations. Surely the Executive, if it is going to receive advice, is entitled, under a statutory scheme, to signal to the advisory body at the very least its satisfaction or dissatisfaction with the fundamental criteria by which that body is operating.

This is designed, of course, to ensure harmony between the commission and the Government so the Government does not find itself looking at people selected by reference to published statements that it is not keen on, or does not find itself not really liking the content of the statements published but yet receiving the shortlist. It may find itself in the position of saying that if the body continues to submit recommended shortlists on the basis of the published criteria, it will simply exercise its constitutional function and simply appoint people off its own bat based on different criteria. Surely there should be some consultative process whereby, if criteria are being drawn up and the system is to work harmoniously, there is a process of approval for the draft statements to be formulated and published under this Part.

I presume the Minister will say this is an interference with the independence of the commission but the commission is not independent. The Constitution vests the function of choosing judges in the Executive, and it is the Executive that advises the President. The commission is not wholly independent in determining the criteria that will govern the drawing up of the shortlist, nor should it be, but it does not trench upon its independence to ask it to send to the Government in draft form the criteria it proposes should apply and for the Government to say that it does not agree with points A, B and C in the criteria, that it wants the commission to vary them, and that it wants to be advised by reference to the commission's draft criteria, as amended by it, the Government.

We want to be advised by reference to the Minister's draft criteria, as amended by us. That process would be entirely transparent. If the Government of the day was abusing it in any way, it would be accountable to Parliament and accountable to the court of public opinion. If the criteria the Government wished to have varied in some way or another were in any way repugnant, that would be a matter of public knowledge. I do not believe a Government would act unreasonably. If an independent commission proposes A, B and C, a Government is unlikely to arbitrarily, maliciously or vindictively say it does not agree with the commission's particular statement of attributes, skills and so on.

I would prefer if the Bill acknowledged honestly that, in the last analysis, a role profile, such as section 50(1)(b) refers to, should be a matter publicly debated and the Government of the day should have something to say about it, not to be simply presented with a fait accompli from which shortlists are thereafter drawn up, when the Government is unhappy with the original criteria in the first place. That is the essence of this amendment.

I have said on a number of occasions in this House that I have been involved during a period when people were being employed in various posts and I have also made the point that I have some concerns as to the ability of the commission to drive home its three nominees, or one of the nominees. To bring this back to an area I am comfortable with and familiar with, that is, the selection of teachers, "teacher" is a title but there are many different types of teachers. We engage with the staff in the location to find out what vacancies need to be filled in the same way that I would expect the commission to engage with the Executive as to what precisely it was looking for in drafting its terms of reference or its terms for the selection process. I would expect that process to start before the position is advertised and that there would be ongoing engagement with the Minister.

I agree with my colleague that the commission cannot be independent of Government. It is there to advise Government and that is all it is doing - advising the Government. However, it must also take the concerns of Government on board. If we are going to pursue this legislation, the amendment that has been put forward by Senators McDowell and Boyhan and myself makes perfect sense. It clears the air and takes some of the questionable areas out of it.

I have significant difficulty with this Bill in any case. At the end of the day, we can go through all of this process but a very assertive Taoiseach or Minister for Justice and Equality can turn around and say, "That is all grand and dandy but I do not accept any of the three, and we are going to go off and appoint somebody else." Who can stop them? Who can say "No"? We do not know anything about the three people or how they were selected, based on the way the Bill is put together. There has to be engagement all the way through - engagement before the advertisement and engagement after the advertisement, followed by a report that goes to the Executive before the Executive then makes its choice, or not, as the case may be. This amendment gives clarity to that.

Before the Minister comes in, there was another point I wished to make. I want to draw the attention of the House to the provisions of section 51, which states: "Without prejudice to section 53(2), the Procedures Committee may, as it considers appropriate for the purpose of assisting the Committee in the performance of its functions under this Part, consult with the President of each court (save a President who is a member of that Committee)." As I understand it, that last part in brackets would have to come out in any event. Section 51 continues: "The Procedures Committee may request submissions or observations, within such period as is specified in the request, from any person that it considers appropriate for the purpose of assisting the Committee in the performance of its functions under this Part." Those functions include drawing up these statements.

What about the Government? The commission is given the right to consult anybody it likes, as it sees fit. The one body that does not feature in this consultative process is the Government itself. I cannot see, since the Attorney General is on this commission, why he or she cannot bring the drafts to Government and ask what it makes of this and express a view one way or another about some of the proposed criteria. I cannot see any reason that should not be done. It is strange there is a discretion to consult with the presidents of each court, and a discretion to seek comments from other persons, but there is no obligation to go to the one organ of State entitled to make the ultimate decision to see what it makes of the proposed statements.

However, section 51(1) ends with a bracketed phrase, "(save a President who is a member of that Committee)." As I understand it, Dáil Éireann amended the Bill to include every president of every court as an ex officio member of the committee, so this section 51 is a bit of a remnant of an older version of this Bill. That apart, I make the point that the entitlement under section 51(2) of the Minister's text to consult with other persons lies very strangely with there being no obligation to consult with the Government in regard to the criteria.

The interesting thing is that section 51(3) states: "The Procedures Committee shall, in the performance of the function to which the consultation referred to in subsection (1), or the submissions or observations referred to in subsection (2) relate, consider the outcome of such consultations and such submissions or observations as are received within the period specified in the request referred to in subsection (2)." Perhaps the Minister will confirm that it is now his intention to delete section 51(2) since all the presidents are now ex officio members of this commission. If there is a duty to consider the submissions it has received, surely there should be an obligation to consult the Government and to get its observations.

Following on from what Senator McDowell said, can anyone imagine a private organisation appointing a chief financial officer and consulting all the chief financial officers in town, but not the board of directors of the company or anybody on the management side? Here we have a situation where anybody can be consulted other than those who ultimately pay the judge, and that is the Government. What we are trying to do here is to drive a wedge between the powers of the State and, in doing so, we are excluding the very people who want to appoint the judge in question.

We take no advice whatsoever from it and we go ahead and we come back with three names that Government ultimately may find do not fit the criteria it had in mind. I find it very strange.

I mentioned subsection 2. I really meant to say I presume it is the Minister's intention to delete subsection 1 and to amend section 51(3) in any event. We are dealing with my amendment and that of Senator Craughwell. I cannot see why the Government, particularly now with the Attorney General as a member of the commission, should not be consulted as of right about the criteria before they are published.

I have listened to the level of detail offered by all the Senators which can be condensed in short to a mandatory requirement in respect of consultation. I point out to them that the approval of statements by the commission under section 54, which covers everything that Senator McDowell has said. As far as consultation is concerned, section 54(3) clearly states: "The Commission shall consult with the Minister before exercising any of the powers under subsection (1)(a) to (c)."

I do not believe that what Senator McDowell is proposing in amendment No. 97cb is necessary because I contend they are covered under section 54, which has not been mentioned by any Senator.

I do not accept that logic applies at all. Section 54 states:

(1) The Commission shall consider each of the statements submitted to it under section 53(1) [section 53(1) is submitted by the procedures committee] and may, subject to subsection (3)

(a) approve each of the statements,

(b) make such modifications to either of them as it considers appropriate and approve them as so modified, or

(c) refuse to approve them.

(2) If the Commission refuses to approve the statements, the Procedures Committee shall prepare new statements of the kind referred to in paragraphs (a) and (b) of subsection(1) of section 53, and that subsection shall otherwise apply in those circumstances(together with the other provisions of that section).

It then states:

(3) The Commission shall consult with the Minister before exercising any of the powers under subsection (1)(a) to (c).

The Minister is only consulted by the commission after the procedures committee has already devised a statement, circulated it for comment and the like. Finally there is consultation with the Minister. Unlike in our amendment, there is no provision as to what happens if the Minister is seriously unhappy with what he sees. I do not see how that establishes the authority of the Government appropriately or at all.

We will shortly come to the Minister's text for section 51. Now that each president of each court is an ex officio member of the commission, I ask him to confirm that section 51(1) is redundant and therefore should be deleted, and that section 51(3) will need to be amended to reflect that deletion.

I would be prepared to look at that. On the substance of the amendment, the point being raised seems to whether there is sufficient oversight regarding the publication of the statements. I say there is. I hear what the Senators have said. I am not prepared to accept the amendment at this point but I will be happy to reflect on the points made. I believe we have sufficient oversight and sufficient and appropriate consultation. However, I will reflect on what the Senators have said.

I am somewhat concerned about the use of the word "oversight". I do not necessarily subscribe to the notion that consultation means oversight. Consultation is exactly what it says on the tin, which is that the Government or the Minister for Justice and Equality may want to have particular criteria taken into account. We are not asking for the Minister to be able to veto anything. We are asking that it would consult with the Minister and take the Government's views into account as it drafts up its terms and procedures.

Oversight is a different thing. Oversight would suggest that the Minister would have some sort of veto over its deliberations. Ultimately we all accept that there is a veto there anyway. If the Government does not like the three names, it can go ahead and appoint whomsoever it wants. Oversight is too strong for my liking.

That is not because of the Bill; it is because of the Constitution.

Exactly. Therefore why have the Bill at all?

Does the Minister wish to come back in?

No. I think the Senator is burning oil. I think the amendment should be put.

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, 5; Níl, 14.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Marshall, Ian.
  • McDowell, Michael.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Reilly, Joe.
  • Richmond, Neale.
Tellers: Tá, Deputies Gerard P. Craughwell and Michael McDowell; Níl, Deputies Gabrielle McFadden and Michelle Mulherin.
Amendment declared lost.
SECTION 51

I ask that Members who are taking their seats do so and those who are having conversations take them outside. Amendment No. 97 cc is in the names of Senators McDowell, Boyhan and Craughwell. Amendments Nos. 97cc and 97cd are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 97cc:

97cc. In page 33, line 22, to delete “may” and substitute “shall”.

The amendment refers to page 33, line 22 of the Bill as received from the Dáil which reads:

Without prejudice to section 50(2), the Procedures Committee may, as it considers appropriate for the purpose of assisting the Committee in the performance of its functions under this Part, consult with the President of each court (save a President who is a member of that Committee).

The amendment removes the word "may" and substitutes the word "shall". Its purpose is to make it obligatory on the procedures committee to consult if it is drawing up procedures relating, say, to the High Court, to make it obligatory for the procedures committee, prior to drafting a statement for the commission's approval or while it is doing so, to consult with the President of the High Court. Every president will be a member of the commission but not every president will be a member of the procedures committee. I can see that it the case. However, it seems to me that if one is drawing up procedures relative to the District Court, Circuit Court, or High Court or the Court of Appeal regarding appointments to those courts, there should be an obligation at least to consult the president of the court in question.

I hope that the Minister, given his flexible and generous approach, will agree that court presidents should be consulted, at the very least, in so far as they are not members of the committee, bar the procedures committee, before they draw up the text. I cannot think of any reason that would not happen, but on the other hand, it seems to me that the President should be entitled, as of right, to be consulted, given that he or she is a member of the commission. Before the procedures committee embarks on its task and goes too far, it should consult the President of the relevant court, for the purpose of assisting it in the performance of its duties rather than presenting the President with a fait accompli at the end of some procedures committee process. I move the amendment in that spirit and will come back later to discuss the second amendment in this group, No. 97cd.

I have listened carefully to Senator McDowell and would refer him to my earlier submission prior to the previous vote when I spoke about the existence of the President. I will go further now and speak about the importance of the President and, in that context, I am prepared to accept the amendment.

That is great progress. I thank the Minister for his generous response.

Amendments Nos. 97cc and 97cd are being discussed together, so there will not be an opportunity to return to them later. The Senator had better make all of his good points now.

Yes, indeed. Amendment No. 97cd-----

It is admirable that the Minister accepted the amendment.

Yes, but the problem is that I must speak on both amendments in the group because I will not be allowed to say anything if-----

That is correct. I will be very strict.

The second amendment in the group is No. 97cd which proposes to insert the word "other" after the word "any" in line 27. The Bill would read: "The Procedures Committee may request submissions or observations, within such period as is specified in the request, from any other person that it considers appropriate". If the amendment that the Minister has just accepted to subsection (1) is made, the idea----

I can anticipate what Senator McDowell is going to say. He is going to say that it would be logical to accept this as a consequence of the acceptance of the other amendment and I am prepared to so do.

I am obliged to the Minister.

The Minister is accepting both amendments. Is that correct?

I commend the Minister on accepting those amendments, in the spirit of making constructive changes to this Bill, with which many of us who have been opposing it have so many difficulties. I commend the Minister on his constructive approach in accepting these two minor but important and significant amendments from Senator McDowell.

Again, I express my gratitude to the Minister. This proves that we are not just wasting our time in this House on this. We are making slow but steady progress with this legislation. I take it we will now be moving on to discuss the section.

We must dispose of the amendments formally first.

Amendment agreed to.

I move amendment No. 97cd:

In page 33, line 27, after “any” to insert “other”.

Amendment agreed to.
Question proposed: "That section 51, as amended, stand part of the Bill."

On the section itself, it occurs to me that even though the two amendments have been made, about which I am happy, the procedures committee is, regrettably, still effectively going to go through its entire process without consulting the Government in any shape or form. The Government is entitled to be consulted at a preliminary stage for the reasons I explained earlier. I am not happy that what the Minister pointed out about the obligation to consult him under section 54(3) is sufficient. The Government, under the Constitution, has the sole prerogative of advising the President as to who should or should not be made a judge. In those circumstances, it is strange indeed that while section 51 envisages other people being consulted at a preliminary stage in the drawing up of selection procedure statements and statements of requisite skills and attributes, the one body that the Minister has rejected as being entitled to be consulted is the Government itself.

The Attorney General is not a member of the procedures committee, ex officio, even though he or she is now, ex officio, a member of the commission itself. Therefore, the Government is kept in the dark under these procedures until such time as the consultation takes place under section 54(3). Even then, the language of that subsection is merely to impose upon the commission an obligation to "consult with the Minister". There is no obligation whatsoever to take on board any view of the Minister or the Government. By that stage, of course, the procedures statement will have been circulated for comment to outside bodies and the Government, apparently, will be the last to hear about it. That is not correct. The Government should be one of the first to hear of the proposed content of these statements rather than just being presented with them on a take it or leave it basis. Indeed, it is not even on a take it or leave it basis. It is on a take it basis at the end because the commission can just ignore the Minister or just consult him or her at the very end of the process when, effectively, a lot of things will have happened which will have committed the commission to a particular approach to the statements in question. I would much prefer if the proposed obligation to consult the Minister under section 54(3) was reconsidered and brought back to a much earlier stage, namely, the section 51 stage. At that point, the Government as a whole could consider the issues being considered by the procedures committee rather than waiting for that committee to come up with a draft which would be presented to the Government, under section 54, by a simple consultative process.

There is an argument to be made for the Attorney General to be, ex officio, a member of the procedures committee. However, because of the way this Bill developed, the Attorney General's presence on the commission at all was only an afterthought in the deliberations of the other House.

It occurs to me that the involvement of the Attorney General should not simply be a minimal paper involvement. The Attorney General, as adviser to the Government, should be involved in the procedures committee because this is a matter of vital interest to the Government. Bearing in mind the time that is in it, I will report progress.

Progress reported; Committee to sit again.