Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

NEW SECTIONS
Debate resumed on amendment No. 97da:
In page 34, between lines 10 and 11, to insert the following:
“53. No statement under this Part shall provide for the interviewing of any applicant who is a serving judge in the Superior Courts in respect of any application to the Commission by him or her in respect of any vacancy in a judicial office in any of those courts.”.
(Senator Michael McDowell)
Amendment put:
The Committee divided: Tá, 10; Níl, 17.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • Norris, David.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Conway-Walsh, Rose.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • McFadden, Gabrielle.
  • Ó Donnghaile, Niall.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
Tellers: Tá, Deputies Michael McDowell and David Norris; Níl, Deputies Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I wish to call for a walk-through vote.

It is too late for that. The Cathaoirleach announced the result of the vote.

In that case, I call for a waltz-through vote.

I move amendment No. 97db:

In page 34, between lines 10 and 11, to insert the following:

“53. Any statement made or published under this Part shall state that no applicant for judicial office may be questioned, interviewed or required in any way so as to express any opinion as to how any particular issue of law or matter of legal controversy (including matters of constitutional interpretation or amendment) should be decided or should have been decided by the courts.”.

The amendment proposes the insertion of a new section 53 in the Bill. The reference to "Any statement made or published under this Part" refers to a statement proposed by the procedures committee, approved by the commission and published by it under this part of the Bill. The amendment proposes that each such statement "shall state that no applicant for judicial office may be questioned, interviewed or required in any way so as to express any opinion as to how any particular issue of law or matter of legal controversy (including matters of constitutional interpretation or amendment) should be decided or should have been decided by the courts". It would apply to the commission questioning applicants in the course of an interview, interviewing them, asking them to fill out a questionnaire or anything of the kind in which they would be invited to express opinions as to how a particular issue of law or matter of legal controversy, including a constitutional interpretation or amendment, should be decided or should have been decided by the courts. In other words, applicants should not be asked about what should happen or asked to comment on past decisions of the courts as part of the interview process. Curiously, the Senate judiciary committee in the United States of America has such a convention, in that any person whose nomination is being considered by the committee on foot of a nomination by the President of the United States cannot be asked to express his or her views on matters of legal controversy or on how he or she would decide particular legal issues.

It seems to me that in the debate on the previous amendment there was a remarkable paucity of suggestions from Government Senators in attendance or, indeed, the Minister as to precisely how one would, in the case of a judge, for example, interview him or her and what questions would be put to a judge one way or the other. It is fair to say that the suggestion was eventually made that a judge might wish to emphasise some aspect of his or her curriculum vitae and draw it to the attention of the interviewing panel, but that is not a very clear reason judges should be interviewed. Given that the Minister set his face against amendment No. 97da, which provided for the interviewing of serving judges in the superior courts in respect of applications to vacancies in those courts, the necessity for this amendment becomes all the clearer. In effect, if a sitting member of the Judiciary could legitimately be asked to comment on legal matters such as a legal controversy or a particular issue of law, including matters of constitutional interpretation or amendment, the interviewing panel of the commission would be seeking to elicit the attitude of a serving judge to what may be live legal issues or issues of legal controversy. If such a line of questioning were legitimate, one would have a situation whereby the judicial appointments commission or some of its members conducting an interview would be in a position to differentiate between applicants for judicial office by reference to their outlook on matters of judicial controversy, decided case law, how cases should be decided or how the law should be amended and so on. To have serving judges exposed to such questioning would radically subvert their independence. To do so in the context of evaluating whether they should be recommended for appointment would be absolutely-----

I hesitate to interrupt Senator McDowell's oratorical flow, but I wish to be reassured that the Senate is quorate.

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

Senator McDowell can go ahead. We have a quorum.

I was saying that nothing could be more subversive of the independence of the serving Judiciary than to have them interviewed by people on matters of legal controversy in the context of making a recommendation to the Government as to their appointment. No such thing happens now.

Not that we are aware of.

I can only speak from personal experience but I have never heard it suggested that anybody was appointed to the Bench on foot of any discussion with the Executive as to how they would decide any particular case. If that is the case for the Executive, it must be doubly so for a group which is not the Executive and is not politically accountable for the appointments that are made.

This amendment is designed to make it absolutely clear that applicants, particularly serving judges but also persons who are not serving judges because it does not differentiate between the two, should in no sense feel that when they apply to the Judicial Appointments Commission with a view to being recommended to the Government for appointment, any answer they would give on any particular issue of law or matter of legal controversy, including constitutional interpretation or amendment, would in any sense be asked of them or appear even potentially to influence the outcome of the commission's deliberations. I commend this amendment to the House.

I always listen to my distinguished colleague, Senator McDowell, with the greatest of respect, especially since he was the Minster for Justice, Attorney General, a distinguished senior counsel and all the rest of it. That said, I wait to be persuaded of this amendment and I am not 100% sure which way I am going to vote. I look forward to Senator McDowell's further contributions to elucidate this because what other questions is the commission going to ask? What else could it ask? It would be interesting to know how somebody would decide on a constitutional matter of interpretation or amendment because, as Senator McDowell said, the Government might want to put somebody on the Bench who was of a conservative or liberal point of view. This would be one way of finding out.

It is none of the commission's business whether a candidate is conservative or liberal.

I remind Senators to speak through the Chair. I will allow Senator McDowell back in shortly.

I do not think the commission has any business at all. I have a difficulty because I think that, in deciding how a judge should be appointed or whether he or she should be appointed, his or her views on potential constitutional amendments or constitutional cases would be of some interest, and I put it no higher than that.

I would like Senator McDowell to respond to the following issue. The amendment, as phrased, might well lead to the interpretation that a candidate could be questioned not about what decision he or she might make but about the methodology by which the decision was arrived at. That is a perfectly reasonable and legitimate thing which does not call for any conclusions.

I would also like to draw the Minister's attention to a letter in The Irish Times.

Please speak through the Chair.

I would like to draw the House's attention to the letter.

I have read it. It was written by another illustrious former colleague of the Senator.

And a very fine legislator.

The Senator should name him.

I will. Will the Chair note that the Minister has invited me to name somebody in the House, which is a very bad thing to do? This is Mr. Alan Shatter, a former Minister for Justice, who sat in the very place that the current Minister is sitting now.

Discussion should be relevant to the section.

Senator Norris was referring to an illustrious former colleague of his.

I will read the first two paragraphs of the letter: "The ongoing farce that is the never-ending debate on the deeply flawed Judicial Appointments Bill resumes today in the Seanad."

"The Bill is simply genuflection in the direction of political bombast-----"

"-----and a symbol of the political impotence of a minority Government-----"

Senator Norris is disrespecting the Chair.

"-----dependent on the support of the self-styled Independent Alliance." I beg the Chair's pardon?

Senator Norris is disrespecting the Chair.

Senator Norris is disrespecting the Chair.

I am not doing so intentionally.

Maybe he is not doing so intentionally.

He does it every day.

Do I hear a frog croaking in the bog?

He is doing it again.

This is not relevant to the section we are dealing with.

The points I was making earlier are very relevant.

Yes, but the letter is not so I am asking the Senator to discontinue reading it.

That is why I only read two paragraphs and the Minister said he had read it already, so that is splendid.

I am glad that the former Minister, Mr. Shatter, has such a wide readership.

This is not relevant to the section.

I have already pointed that out.

I beg the Leader's pardon? I am in a slight confusion. Is the Chair chairing the debate or is Senator Buttimer?

I see. I shall obey the Chair's instructions in that case and ignore the interruptions from Senator Buttimer. I am happy to yield to my colleague, Senator McDowell, who I am sure is going to enlighten us further.

Does Senator Boyhan want to come in first?

I have not had much discussion on this Bill in recent weeks but-----

We are only dealing with amendment No. 97db now.

My contribution will be relevant to the section and the matters Senators have been speaking about.

This legislation has become a farce. I will not dwell too much other than to say that I contacted the Courts Service today. There have been 45 appointments in the various categories of judges, including the Chief Justice, two in the Supreme Court, five in the Court of Appeal, 15 in the High Court, ten in the Circuit Court, and 13 in the District Court. The Minister knows that. All of those appointments have happened under this Administration and they are good, legitimate appointments of high-standing judges. I take exception to the commentary I have heard about judges in this country, people who have served us well. That is important.

I will not drift on to the topic of the letter in The Irish Times but I penned a letter to that newspaper today about this matter which I hope will be published in the next few days. We have a system that has worked exceptionally well, despite everything that has been said. The Minister and Government have confirmed and recommended these appointments as judges, as is right and fit. I do not know where we are going on all of this. We have a system that works well.

Senator Boyhan does not often speak about this Bill so I let him in even though his contribution was not particularly relevant to the section.

It was relevant to things that have been said on that section.

I do not doubt that it was a useful piece of information but it was not especially relevant to the amendment in question. Senator McDowell might respond to Senator Norris' questions.

First, what Senator Boyhan has said is of some tangential relevance to the amendment. A total of 45 appointments have been made, many of them to the superior courts, and none of those applicants, to my knowledge, has ever been asked a question by a member of the Executive as to their attitude to a particular issue, how they would decide it, or what they make of a particular decision made by the Supreme Court six months ago, or three years ago, or five years ago. They have never been asked about their views on constitutional interpretation. There have been 45 appointments, more than half in the superior courts, and none of the appointees has ever been asked such a question.

That being the case, I want to make absolutely clear that this Bill will not authorise the judicial appointments commission to evaluate applicants for the Judiciary by reference to their potential decisions in future. That is none of the commission's business. It concerns me that I do not see any signal of acceptance of this proposition by the Minister but I would be glad to hear his views on the matter. Does the Minister believe it would be legitimate for either a serving judge or an applicant for a position in the superior courts to be asked for his or her views on legal issues or on particular issues of law or legal controversy?

This raises a point to which Senator Norris adverted. What else should they be asked about? In turn, this goes back to my plea on the previous amendment. Why should they be interviewed at all? This goes back to the debate when I challenged Government party Senators to come up with a single relevant question that one would put to a judge to determine whether he or she was suitable for recommendation. The best answer I got was from Senator Noone. In an extreme stretch of the imagination she said that perhaps candidates could be asked whether there was anything about themselves that they would like to draw to the attention of the commission and that they had not managed to say in their curriculum vitae or application form. That was the best she could do. In fairness, she was being utterly honest and decent in saying that was the best question or topic she could think of in respect of a question that might be asked of candidates.

We are now in a situation where I want to make it absolutely clear that the decision on whether someone is conservative or liberal and should or should not be appointed on that ground is one for the Government alone. It is not a matter for the ex officio members, including the Chief Justice or a President of any of the courts or the Attorney General, although the Attorney General is free to advise the Government on these matters. It is certainly not a matter for laypeople. It is certainly not a matter for the two professional body representatives or a representative of the Irish Human Rights and Equality Commission to start fishing for the attitude of the candidate to human rights issues. That is not the function of an external commission. Even to allow the members of the commission for a minute to think that would be a permissible territory of interview of applicants is to reinforce the notion that it is they who are making the substantive decision on who gets on the Bench rather than the Executive.

This speaks to the fundamental constitutional falsity of this Bill. It is intended to create the impression that, to use the words of the Minister for Transport, Tourism and Sport, Deputy Ross, politicians should have no real function in determining who should be on the Bench. That is what this Bill was intended to do. The Minister, Deputy Ross, has stated the intent was to end what he called political cronyism. I do not believe there is political cronyism. Happily, Senator Boyhan did not enlighten us on who the particular people were on the list he got from the Courts Service today, but there are many fine people on the list. I do not believe for one minute that this Government has appointed any one of them on the basis of political affiliation or cronyism. They have all been merit-based appointments as far as I can see. Insofar as I can divine, they cross any political allegiance held in the past by any of them. I notice there is a considerable degree of cross-party appointment, to use that phrase, although I regard it as unfortunate. That was the case when Rory Brady and I functioned as Attorney General from 2002 to 2007. I do not believe there is cronyism.

The one thing I do not want as the price of appeasing the Minister for Transport, Tourism and Sport, Deputy Ross, and his desire to pretend absolutely falsely that politicians will have no further function in the appointment of judges is to create for a moment the idea among the public that those who go into what will necessarily be a confidential interview process will be asked whether they are liberal on the subject of gay rights or the right to life or where they stand on such issues or how they would approach a given category of case with the view to creating in the minds of the public the notion that the commission effectively vets people on their outlook and complies a shortlist based on interrogation of candidates with a view to working out whether they are on the liberal-conservative spectrum, the human rights-legislative rights spectrum or the Irish independence-European integrationist spectrum and so on. Candidates should not be asked such questions in private. Worse still, I do not want applicants for judicial office ever to think that if they went into an interview of this kind, whether they were sitting judges or would-be appointees to the Bench, that they would be viewed by the judicial appointments commission as meritorious based on their evinced attitude to such issues. Otherwise we will have political correctness gone mad. We will have people going in there saying they know the background of the five people on the interview panel or the representative from the human rights commission and will make the right noises and in consequence secure judicial office. That would be a complete subversion of the truth and of the right of the Executive to make its discretionary decisions on those issues without regard to what the Chief Justice thinks of those issues or whatever else.

It represents a form of cronyism too.

I really believe that this is a point of central importance. If there is one thing we can do to improve this Bill, it is to make absolutely clear that the function of looking at the philosophical outlook of the applicant, in terms of liberal-conservative and the rest of it, is exclusively a matter for the Executive and cannot be delegated to a group of judges, practising barristers and solicitors, laypeople or human rights commission people. It cannot be delegated to them and they should have no function when they are composing their shortlist in taking those considerations into account.

Unless I get satisfaction from the Minister that he agrees with me on this issue, and unless he agrees that it is not the function of these people to do their shortlist by reference to liberalism or conservatism of a legal kind, then I get the impression that the hope is that this commission will take those kinds of matters into account and will, by doing so, usurp the Government's prerogative in this matter. It is the attitude of the Government that matters not of unelected people on the commission who would not be responsible to the people.

I imagine it is not for the commission to decide on these things, but rather it is for the commission to establish the facts of the matter. I have two questions. One is for Senator McDowell and one is for the Minister. I wish to ask Senator McDowell a question through the Chair. Taking into account that there is no facility whatever in this legislation, as I understand it, for the Government to question any judicial candidate, how would the Executive find out the views of the person unless these kinds of questions were asked by someone at some stage?

Second, will the Minister confirm that the subject and content of the interview will remain private? My assumption is that this information will not be made public.

I thank the Minister.

This is not the first occasion on which we have been entertained with the concept of a judge being interviewed on his or her ideological stance, preferences or disposition. Senator McDowell knows well that in no place does the Bill provide for the type of question that may be asked in an interview, if there is an interview at all. I do not accept that the concept of interviewing judges is as repugnant as the Senator leads us to believe. I have listened to his comments on the amendment which I do not propose to accept in its current form. However, without agreeing with the substance of the Senator's argument, I acknowledge that there may be some merit in introducing a safeguard to ensure there cannot be the type of scenario envisaged by him cannot. As I said, there is no reference anywhere in the Bill to permitting the line of questioning evidenced by him. However, in advance of Report Stage, I will consider including a safeguard to ensure there will not be the line of questioning referred to by him.

I urge Senators to consider the situation in other common law jurisdictions. I agree with what Senator Boyhan said about appointments. It is not necessary for me to say, once again, that, as far as I am concerned, appointments by the Government are being made strictly on a meritorious basis, as has been acknowledged in the House. However, there is a need for reform along the lines set out in the Bill. It is almost 25 years since the current system was inaugurated and it would benefit from the reform envisaged in the Bill. I do not accept that an interview of a District Court judge for a fundamentally altered position, namely, that of a High Court judge, should be out of bounds, as Senator McDowell wishes us to accept. I see every reason an interview could, in some circumstances, be of assistance to the board in conducting an assessment of legal knowledge, skills and competence. It would be a weakness in the Bill if we were to enact it without reference to the facility to hold an interview. Looking at the situation in Scotland, for instance, it is common practice for an interview to take place to fill a vacancy the appointments board may wish to fill for a sheriff or an equivalent judge at district level. The Bill should make provision for such an interview process to take place where the board deems it to be appropriate. If, for example, it is interviewing a senior judge for another senior position, it might be appropriate for the interview to be conducted by the legal members of the commission, or for the panel to include judicial representation. As I said, I will not accept the amendment in its current form, but I am happy to look at the Senator's proposal further and consider what safeguard might be introduced.

Regarding the idea that the testing element of the process be derived from the published statement and the skills and attributes identified within it, I see every reason this should be important in the context of the process, rather than what Senator McDowell is proposing, not only this evening but over several months, where the sole basis of the interview would be the ideological disposition of the candidate and where he or she might fit on a spectrum. I do not accept that that will be the case. I expect that there will be a range of issues, as we discussed previously, in the areas of skills and attributes which will, in effect, provide the basis of the interview in terms of questions, queries, observations or otherwise.

I was asked last week by Senator McDowell to get back to him on the question of whether the Government opposed the particular amendment on Committee Stage in the Dáil which sought to insert a provision whereby candidates would be ranked in order of preference. I agree with the Senator that this is an important issue. I confirm that my recollection of proceedings was correct, namely, that I did oppose the amendment on Committee Stage in February last year. However, because the Government did not hold a majority, the amendment was carried. In fact, two related amendments, Nos. 133 and 149, both in the name of Deputy Clare Daly, were also carried on that occasion, introducing the principle that the commission would be able to rank its selected candidates in order of preference. The introduction of this new element of ranking was considered to be of importance, having regard to the issues of concern covered in the advice of the Attorney General, issues that had been aired previously during pre-legislative scrutiny. I considered the matter very carefully, in consultation with the Attorney General, and looked at options that might be employed in dealing with the amendments on Report Stage in the Dáil. That consideration ultimately resulted in the tabling of several amendments on Report Stage designed to make it clear that any order of preference would not limit the advice the Government might give to the President under the Constitution.

The Dáil readily agreed to two such amendments to insert such provisions, which might be regarded as savers, in what are now section 40(3) and section 41(4). The record of the Dáil of 31 May last year sets out the rationale behind those amendments and the need to maintain the constitutional role of Government, and to ensure that, under no circumstances, will that constitutional role be adversely interfered with, much less undermined. It is important that appropriate savers are evidenced in the Bill when enacted, having regard to the constitutional difficulties that might arise.

As far as more general savers are concerned, I intend to table an amendment on Report Stage with a view to inserting a more general saver that will be applicable to the Bill as a whole. This would state clearly and unambiguously that nothing in the Bill may undermine the constitutional prerogative of Government to advise the President on the matter of appointments made to judicial office. I have said this before but it is worth saying it again, particularly having regard to issues raised repeatedly by Senator Boyhan and others. In addition to specific safeguards and savers, a general statement may well be important in the context of the need for a broad safeguard in respect of the constitutional function and the duty of Government to exercise its broad discretion in advising the President as to appointments to judicial office.

I am grateful to the Minister for clearing that up because when I discovered that Deputy Clare Daly had tabled the amendments requiring the commission to express its views on the shortlist submitted by means of ranking candidates in order of the commission's preference, it occurred to me that this was designed to put pressure on the Government to follow the views of the commission. One of the points we have not yet reached in this debate, although we have touched upon it tangentially, is the question of whether it was the intention of the drafters of Deputy Daly's amendment that someone who was ranked first on the shortlist by the commission would be informed of that. Would they be told that they were the commission's number one choice? Such a candidate may find that, despite being the number one choice on a number of occasions, he or she was constantly passed over the Executive. I am conscious of the potential for mischief if such a ranking was put in place without consequence.

I had not appreciated that section 40(3), which refers to section 40(2), and which provides that "Nothing in subsection (2) shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge" was an antidote, so to speak, thought up by the Minister to undo the effect of the ranking amendment tabled by Deputy Clare Daly. I am glad the Minister now agrees that, in addition to the references in the final subsection of both sections 40 and 41, there must be a general acknowledgement. I believe Senator Norris will agree with me on this. There must be a general honest acknowledgement in this Bill that the Government will always be free to go outside the commission's recommendations and to select from eligible people it may propose to appoint.

There must be such an acknowledgement first because it is only honest - under the Constitution it cannot be otherwise - and, second, because it will strip away the false impression that has been created by the champion of this legislation, the Minister, Deputy Ross, that he is somehow taking these decisions away from elected politicians and handing them to an expert commission. He cannot do so constitutionally, but he can support legislation that makes it look as if that is what is going on. I welcome the Minister, Deputy Flanagan's, announcement that he proposes to make it clear, in a general way by means of an omnibus amendment of some kind, that nothing in the Act as a whole attempts or purports to trespass on that overall discretion of the Government.

Once that is understood, a number of things follow from it. Why are we establishing this expensive quango instead of an advisory board? Why are we providing for full-time directors and for buildings for it to inhabit? Why are we providing a budget of between €500,000 and €1 million per annum for this process when the 45 appointments to which Senator Boyhan referred stand out, in my respectful opinion, as clear proof that it is entirely possible to make appointments on merit without any hint of cronyism and for the Government to discharge its constitutional function without any of the expensive elaborate apparatus we are being asked to put in place? The Minister has estimated on previous occasions that if ever this Bill is enacted it could be another 18 months to two years before it would have any effect. When something is not broken, why on earth would one set out to mend it?

The information Senator Boyhan obtained from the Courts Service is stark in its content. It shows that, first, the Minister, Deputy Ross, has been a member of a Government that has made very good appointments-----

And so many of them.

-----and many of them without any controversy while nobody has accused him of cronyism-----

I meant nobody has accused him in respect of these appointments. Nobody has accused any member of the Government of cronyism in this regard. Let us be very clear. If one looks at the people involved, who are fine men and women - and I will not trespass on their dignity or on parliamentary practice by adverting to any of their names - some 45 people have been appointed to the Bench and to senior offices in the Judiciary by this Government. In those circumstances, on what basis could it possibly be argued that we need to establish a commission to do what we are doing perfectly well at the moment without any of this stuff? It is worse than that - and I am slightly straying away from the text of the amendment - because the process envisaged in this legislation will deter people from applying to be judges.

They do not want to be rejected, or go to an interview panel where they are evaluated by people, the majority of whom probably will have no legal training at all. I am also interested in the Minister's mention of a potential proposal that a majority of the interview panel could be judicial people. That is interesting but I do not think that is something with which the Minister, Deputy Ross, would be very happy. The interviews would be carried out by judges and the laypeople would get a report from them afterwards as to who was good and who was bad. I do not think the Minister, Deputy Ross, would be very happy with that idea at all. I think he would be very unhappy with it and if his minions are listening in to this debate now, they are already scratching out their strong objections to such a proposal.

The Senator is being entirely mischievous.

I am not. The Minister himself said that the majority of the interview panel could be judges. I do not think Deputy Ross had that in mind at all. The Minister says this could be justified because it might be appropriate to interview a District Court judge who was seeking appointment to the superior courts. Amendment No. 97da, which we have just voted down, states "No statement under this Part shall provide for the interviewing of any applicant who is a serving judge in the Superior Courts in respect of any application to the Commission by him or her in respect of any vacancy in a judicial office in any of those courts." I was not talking about District Court judges or even Circuit Court judges, but about High Court judges, Court of Appeal judges, and Supreme Court judges. I cannot see why they should be interviewed for appointment to vacancies for posts in which they were already ex officio qualified to serve.

On the amendment we are now discussing, the Minister said he might consider some amendment on Report Stage along the lines of what has been proposed here, to limit the interviewing of would-be appointees to the bench, or serving judges who are would-be appointees to other positions on the bench, in matters of law or legal controversy including constitutional interpretation. It continually reopens the question, which I ask the Minister to bear in mind, of what they are going to be interviewed about. Will they be asked if they play golf, are in the local GAA club or if they have ever been in the Society of St. Vincent de Paul? What questions could they be asked which would be pertinent to whether they should be appointed or whether, for example, a Court of Appeal judge should be made an ordinary judge of the Supreme Court? I cannot imagine what questions could be asked of them at an interview. I am not keen on the idea of a majority of the interview panel being judges but even if that were the case, I cannot imagine what questions they could ask which would be of much assistance. Would they ask them how they get on with their fellow judges, or if they would be a team player in the Supreme Court? What answers would they expect? They would hardly say that they are not team players, or that they are difficult and very independent. I do not see how those kinds of questions would yield any useful fruit. I ask the Minister to completely reconsider the process of interviewing superior court judges at all.

On my second point, I may have unduly narrowed the scope of this amendment, which I did not intend to do. Amendment No. 97db proposes a new section, section 53, which would apply to both serving judges and new applicants. That is important to emphasise, because it would be wrong to ask even practicing solicitors or barristers, who are not judges, questions which would require them to disclose their attitudes on judicial issues in advance. It is wrong from a number of points of view. It would send a signal that the recommendation of the committee depended on the way in which they responded to such issues, and if, for instance, an applicant was of a conservative disposition, it would encourage them to portray themselves as more liberal than they were for fear of offending interviewers who they suspected of having more liberal views than their own. That is why this amendment is hugely important, and cannot be diluted in any significant way. The group of people being applied to do not have discretion on issues such as liberalism or conservatism, and no interview process should allow for examination of applicants on those issues. Even if they were disregarded by the commission in the end, the impression would be given to applicants that they were being grilled on their political and legal outlook in advance, and that the shortlist would be composed based on how they performed on such issues. This is an important amendment and I will have to push it to a vote.

Sometimes I am baffled by the contributions in the House. I understand where Senators McDowell, Boyhan, and others are coming from but what is the principal intent or import of what we are doing here?

The Courts Service has advertised positions, and the headline of this article from the Law Society Gazette reads "Judgeship vacancy applications thrown open". The article states:

Vacancies for judgeships have been announced by the Court Service. Applications are invited from practising barristers and solicitors, under the Courts and Court Officers Acts 1995-2002, for appointment to the following roles.

It then provides a list of roles from the Supreme Court down to the District Court. It further states:

Those eligible for appointment and who wish to be considered should apply in writing to the Secretary, Judicial Appointments Advisory Board ... Fully completed applications will then be considered for vacancies that arise in the Supreme Court, Court of Appeal, High Court, Circuit Court and District Court during 2019. ... These applications will only remain valid pending enactment of any new legislation in relation to Judicial Appointments which is expected in 2019, the Courts Service has said.

It also says that more information is available on the website www.jaab.ie, and that the Standards in Public Office Commission, SIPO, is involved.

I was watching "Nationwide" last night, which was broadcast from Listowel where John B. Keane's son was being interviewed about the town's Tidy Towns committee. I often wonder if John B. Keane were alive today and he wrote a letter to a Minister or a Deputy about appointment as a judge, what would he have said? Senator McDowell had the privilege of being a member of the Government as an Attorney General, a Minister, and as Tánaiste. The Minister before us, Deputy Flanagan, has also had that privilege. I fully accept that we have been well served by the vast majority of our Judiciary, and we do not go down the lines of the USA, with liberal judges versus conservative judges. Imagine that John B. Keane wrote a letter to the Minister, stating that he had been a member of the cumann since 19 nought splash, had been a diligent and loyal servant of the party, had graduated with an honours degree, had a budding practice, and would now love to be a judge.

Suppose he said that he was looking to a Minister, Deputy, Senator or councillor to help him on the way. He might draw the Minister's attention to his relation, Margaret, a first cousin of the Minister's wife or a second cousin of his sister. Perhaps the relation is a member of the Bar Council of Ireland, with influence the Government could use in his appointment to the advertised position. I am not referring to Senator McDowell, in case he thinks I am. I am making a general point. Let us suppose that John B. Keane went on to note that he had canvassed in by-elections in north Donegal, west Kerry, north Cork and across the country, carrying the flag of the party with distinction. He might write that it was time for him to be honoured and accepted by the Government of which he had been a proud supporter. Suppose he wrote that he could be a wonderful judge in accordance with the party's great distinction of serving the country. Such things are in the gift of the Minister and his colleagues in Government, the comrades with whom he or she serves. The letter might seek the Minister's support. The letter might conclude: "Yours sincerely, Michael John Murphy, practicing solicitor, Main Street". The Minister might bring the letter to his colleague in Cabinet.

MJ wants to be a judge.

The Minister might reply, acknowledging the application. Suppose the Minister wrote that he understood the applicant's qualifications for the job and looked forward to a conversation with him. A further exchange of correspondence might follow.

John B. Keane is right in saying that in the world inhabited by some people in his books, letters and correspondence, appointments were made on a wink and a nod. I have never been in Government, so I do not know, but I have read John B. Keane's letter to a TD.

I was a member of a school community that changed its appointment process. Was Senator Gallagher a teacher at the time?

Gabh mo leithscéal, he was not. We had a major dispute when the decision was taken that we would no longer appoint people to positions of responsibility on the basis of seniority. Instead there was to be an interview process and a scorecard reflecting experience, qualification and the interview itself. The motto of the Honorable Society of King's Inns is nolumus mutari, "We shall not be changed". However, I have to ask why we are afraid of change. I have no vested interest in this whatever. If we simply accepted the world that exists, we would never change anything. Marriage equality would never have happened. We would never have changed how we do our business in other referendums. We would live in the past. We would never have changed how we do business in this House of the Oireachtas.

What is wrong with having a conversation about the best skills and attributes for a judge to bring to the role? Why should we not have an interview? What are we afraid of? It is not a litmus test of whether someone is liberal or conservative or for or against something. What is wrong with interviewing members of the Judiciary to see if they are up to the job? Why are we running away from that? I am not condemning in any sense of the word. I have listened to the debate with incredulity. I have read all the articles on it, including the articles and letters in today's newspaper. Are we going to say that the cosy cartel can continue, that those who live in the Law Library can say to those of us who do not and are not in any kind of club that this is beyond change? We all change in life. We have made gargantuan changes in how business is done across many parts of society. Why is it that in this case we are not bringing change? Why are we afraid of it? I appreciate that we must have an independent Judiciary. I am all for that. I am not advocating against it. Why should its members not be interviewed? Why are we saying that an applicant responding to the advertisements I read out should not have an interview? If I am missing something, I will be happy to admit it. Let us be honest about this. A vested interest is opposed to this Bill - hook, line and sinker. No matter what the Minister or the Government introduces, that vested interest will not change its mind.

Reference was made to the Minister for Transport, Tourism and Sport, Deputy Shane Ross, and the Government. If the Government did not appoint judges, the Opposition would come in here every day, highlighting the appointments that were not made and asking why. Members of this House have highlighted vacancies and asked why they are not being filled.

Those are very interesting views. I hope to address each of them while trying to be relevant to the section.

As interesting as the theatrical twists and artistic references made here may be, can we stick to the point a bit more?

In fairness, Senator McDowell has had a lot of latitude.

I am just dealing with the points that have been raised. Questions have been put to me. I have been accused of being some kind of conservative, opposed to any change-----

On a point of order, I did not accuse the Senator of anything whatever.

Senator McDowell is incorrect.

What did I say about conservatives and liberals? I said we have not gone down the American route of asking whether judges are liberal or conservative. I never mentioned Senator McDowell.

Senator Buttimer is forgetting what he actually did say. He talked about vested interests who are opposed to any change.

There are such interests.

Sorry, but who are they? If the Senator is not talking about me, who is he talking about?

If the Senator does not know who they are-----

Does the Senator mean the Judiciary, which has condemned this Bill? Is he talking about it as a vested interest?

Senator McDowell should reflect on who is against the Bill.

Senator Buttimer can respond. Is he suggesting that the Council of Europe-----

Senator McDowell must address his remarks through the Chair, as he knows.

Is Senator Buttimer suggesting that the Council of Europe, which has condemned this Bill, is a vested interest? Is the Senator suggesting that the European Commission, which condemned this Bill, is a vested interest? Is he ignoring the fact, as I think he is, that a memorandum from the Department of Justice and Equality was recently released under the Freedom of Information Act, which stated that the language used by the European Commission in condemning the Bill was much more reserved than its private criticisms of it? Is he suggesting that the editors of The Irish Times, who called on the Government to withdraw this Bill and face Deputy Ross down even if it required his resignation, are the vested interest? Are the editors of The Sunday Times, who have condemned this Bill, a vested interest? Are we going to get better judges from this or not? Senator Buttimer seems to have suffered from amnesia. He threw out the phrase, "cosy cartel".

I knew the Senator would pick up on that.

Who is in this cosy cartel?

The Senator knows.

Are the 45 people appointed to judicial office by this Government while Deputy Ross sat at the Cabinet table members of some cosy cartel? No, they are not.

I have another question. Is the Leader seriously suggesting that in recent times there has not been a remarkably good set of appointments to the Bench of good women and men, without any hint or allegation of cronyism? Is he forgetful of the fact that time after time the newspapers have reported Deputy Ross saying he would put his foot down and allow no more appointments until this Bill has passed?

Has he forgotten all of that or is he so amnesiac that he has forgotten what has actually happened? Does his amnesia extend to agreeing a two-hour debate and then suggesting a seven-hour debate the following day? What is the process that leads to that?

On a point of order, and just to correct Senator McDowell, the Senator and his colleague, Senator Boyhan, will know that it is the prerogative of the House to approve or not to approve the Order of Business of the day. It is my prerogative, as Leader, to propose an amendment to the Order of Business.

Absolutely. That is fully accepted.

There is no amnesia on my part.

No, but the Leader is suffering from amnesia about what made him change between last Wednesday and Thursday when he went from two hours to seven hours. We then read in the newspapers that we were going to be sitting until after midnight, until this House said it would not be bullied in this way. The Leader will not get away with this kind of tactic. Do I have a problem with an applicant for judicial office being interviewed by a board? No, I have no problem with it whatsoever. The Judicial Appointments Advisory Board has the power to interview people if it considers it necessary. I have a major problem, however, with serving members of the High Court, the Court of Appeal and the Supreme Court being interviewed by a body which will not make the ultimate decision about them, being ranked in order of preference and being put on a little shortlist which is sent to the Government to create the impression that whoever is appointed to the Bench is the creature of the commission, rather than being the person recommended by the Executive to the President.

These amendments are about saving members of the serving Judiciary and other applicants from being asked to divulge their political outlook and their views on likely upcoming issues to be determined in the courts. I believe this is very important. It is important for any applicant but it is doubly important for a serving judge of the High Court who, according to the Bill as it stands, will no longer be able to do what he or she is allowed to do at the moment, that is, to write to the Secretary General of the Government to say he or she is available for appointment to the vacancy in the Court of Appeal or the Supreme Court, leave it at that and let the Government make up its mind. Such a judge will be required to apply to a commission which will interview him or her. What form could such an interview take? There is no point in repeating the discussion we have had about the notion contained in the Bill that appointments should be made on merit. Nobody will determine what merit is because issues such as whether one is conservative or liberal are points of merit in the mind of an appointing government. If a person believes that a judge who has been excessively generous with damages is the person to be appointed as the President of the Court of Appeal, that would be naive and that person would not do that. If somebody believes a certain judge, who is on the lenient end of the spectrum in terms of sentencing policy, is the one that person wants to appoint as President of the Court of Appeal or a senior judge on the criminal side of things, who will decide questions of the inadequacy or otherwise of sentences, of course he or she will make decisions like that, but those are decisions for the Executive and not for a quango. These decisions are not ones on which the views of a quango are of any assistance whatsoever and, on my reading of the Bill, the commission is not permitted to carry out its evaluation of candidates in this way.

It has been asked whether it is acceptable for an applicant for judicial office to be questioned, interviewed or required in any way to disclose his or her opinion on how any particular issue of law or matter of legal controversy, including matters of constitutional interpretation or amendment, should be decided, or should have been decided, by the courts. It is a very simple proposition. Are interviews to cover that territory or not? The Minister says he sees some merit in some consideration of these points, which is a movement forward, but he is not willing to accept this amendment in its present form. I do not see why it is not acceptable in its present form and I have not heard any coherent explanation as to what is wrong with it in its present form. It is relevant to the discussion on amendment No. 97db so I will put the amendment to a vote of the House.

I ask Senator to withdraw the word "bullying" in respect of the proposition for the Order of Business.

I was not suggesting that the Leader bullied anybody.

He used the phrase and implied as much.

I did not say the Leader bullied anybody.

The Senator knows well that we operate by consensus, in the main. If the Senator analysed the give and take in this House, he would say that the Leader lost more than he has won.

Why did I read in the newspapers on Friday and Saturday that we were going to sit until midnight?

It was not I who briefed journalists in the canteen or around these Houses, or who apprised them of the situation. I do not suggest it was Senator McDowell either. When a journalist phones me to say he or she has been told something by a Member of the House, I wonder how that journalist has found out.

Perhaps the Leader would explain why I read in the newspapers on Friday and Saturday that we were going to be sitting until 1 a.m.

Senator McDowell is not allowed to interrupt in this way. Please stick to the amendment.

There are two simple answers to Senator McDowell's question. First, the said journalist who wrote the piece read the schedule which stated "published by the Houses of the Oireachtas". Second, she was apprised of the situation by a Member of the House. I can assure the Senator that I did not speak to any journalist about the sitting arrangements of the House until I got a phone call.

I certainly did not either.

The phone call told me about the article which was published after that. I received phone calls from journalists, to which I responded, after which I was informed of what they had been told by Members of the House.

Senator Buttimer, this is not the forum for such a discussion.

It seems that the motto of Senator McDowell is, "We shall not be changed". I have a very simple view.

When we changed how posts of responsibility in education were rewarded, we moved away from the old network of experience and the longevity of a person's service, the old club, to one where there was an interview and where the skill sets and a person's attributes, experience and qualifications were what mattered for him or her to be appointed to a position. Why are we afraid of that? Are we saying that some people are immune from being assessed for suitability for appointment to a position? We can all quote articles from journals but we either want to see profound change or we do not. That is the fundamental thing.

Does the Minister wish to speak?

I think we should put the amendment.

I read the newspapers and when I heard that we are going to be sitting until 1 a.m., it could only have come from one direction.

The Senator is wrong.

Senator Buttimer may not come in on this point.

This is important. The schedule of the Houses of the Oireachtas is published and I want Senators to understand my bona fides in this matter.

I received a phonecall from a journalist who had been speaking to Members of the House and I responded to his request. I did not phone the journalist. I did not brief any journalist. I would never brief---

I want to put this on the record.

I get the Senator's point. I think everyone does. I am not entertaining any more discussion on the issue of speaking to journalists or not.

I ask that the question be put. It is only a row. Again. I have sat here quietly for the last 40 minutes.

Senator McDowell, briefly, and then I will put the question.

It is a phoney row.

I do not care about journalists. Just know one thing. What was agreed last Wednesday was two hours. Within 12 hours it was changed to seven hours. That was done I believe at the instance of the Minister, Deputy Ross, stamping his little foot somewhere and the change took place that way. That is what I believe happened. I will live what that view of the matter.

That business was done and done legitimately.

I do not believe it was done at the request of this Minister. I am pressing the amendment.

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, 6; Níl, 17.

  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • McDowell, Michael.
  • Norris, David.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Reilly, James.
Tellers: Tá, Deputies David Norris and Michael McDowell; Níl, Deputies Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 97dc:

In page 34, between lines 10 and 11, to insert the following:

"53. A statement published under this Part shall state that no applicant for judicial appointment shall be questioned, interviewed or required in any way so as to disclose his or her political, religious or ideological beliefs or sexual orientation.".

These matters should be off limits. Clearly one's party political outlook is irrelevant to one's appointment to the Bench. One's religious views have now become irrelevant to an appointment. There was a time, when I was a young barrister, that a person of a religious minority was appointed to the various superior courts. There was a convention that no court in this country would be entirely composed of catholics.

Jobs for the prods.

And other minorities. Things changed and we now have got to the point where if there were to be quotas of that kind it would probably be to support the members of the majority religion in this country. As to ideological beliefs, I do not think people should be asked questions about whether they were or were not a student Marxist or something of that kind, or whether they believe in capitalism, socialism or whatever they should be asked about.

Lastly we come to the question of sexual orientation.

Quite clearly matters have moved significantly in that direction. If one is going to be asked questions about those matters it can only be because it is relevant or irrelevant to the question of whether one is going to be recommended. I cannot imagine why a person should be asked questions which are irrelevant to the decision to appoint him or her to judicial office. We have arrived at the view that we are willing to take people as they stand and on their merits without considering those kinds of matters, at least as far as the judicial appointments commission is concerned. However, it might well be that a Government might say that somebody who had publicly expressed very strong views of a religiously intolerant, homophobic or ideological kind would not be suitable for appointment to the Supreme Court. Who could second guess a decision of that kind? In the past, the stance taken on social issues by some people who were in the minds of others in the running for appointment to senior judicial positions did weigh in the mind of Government as to whether or not they really did want a Supreme Court with one or two people of that persuasion, or whether they had any choice.

It seems the Minister has, in respect of the last amendment, indicated a willingness to make some concessions.

Progress reported; Committee to sit again.

When is it proposed to sit again?

Ar 10.30 maidin amárach.

The Seanad adjourned at 8.27 p.m. until 10.30 a.m. on Wednesday, 19 June 2019.