Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

NEW SECTION
Debate resumed on 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.”.
(Senator Michael McDowell)

We were considering an amendment which was going to make it part of any statement published under the relevant part of the Bill that no applicant for judicial office shall be questioned, interviewed or required in any way so as to disclose his or her political, religious or ideological beliefs or sexual orientation. What I and my colleagues are intent on achieving by this amendment is the principle that on those issues, the judicial appointments commission when carrying out its function under the legislation should approach it on the basis that those are irrelevant considerations and that the interview process should be entirely blind as to them. I commend the amendment to the House.

It is a pleasure to welcome the Minister, Deputy Flanagan, back to the House, and a great relief. I saw former Senator Ross's nose peeping out from behind the Public Gallery and I thought he was going to extend his arrogance and take charge of a Bill for which he has direct personal responsibility but no political responsibility. I draw the attention of the Minister, Deputy Flanagan, to a report in the Irish Independent which congratulated this House on extending the debate on this matter and indicated that a majority of Fine Gael Senators oppose the Bill. That is a very interesting-----

I still cannot hear it. There we are. With regard to this amendment, I will, of course, support my distinguished colleague, Senator McDowell, on it. However, I wonder a little bit about it. The statement is 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". Whatever about the political side, I would think it quite significant to know something about their religious background, although not which church they belong to, whether they believe in God or anything like that. I look to the case, for example, of the late Mr. Justice Rory O'Hanlon, who stated quite openly that he felt he was implementing the law of God. So much for the laws of the State. He was a very conservative judge. I wonder if it is not appropriate for the Government to find out if these are the kinds of ideas that somebody who is up for judicial appointment might have. I certainly think it should bar people from the highest court of the land if they believe they are implementing the law of God or interpreting the mind of God. These are people who are highly dangerous because of their beliefs.

I will leave ideological beliefs to one side; I am not bothered. However, I do think Senator McDowell has made the case very cogently that the Government should have the right to balance the court the way it has been balanced by the ghastly Trump in America. He has mucked things up for decades to come by appointing a series of conservative judges. Senator McDowell made very strong arguments that the Government has a right to select somebody because of his or her ideological beliefs to balance it, conservative as opposed to liberal or whatever. Finally we come to sexual orientation. Frankly, I do not give a toss what the person on the Bench does with his or her gonads. I do not care about it at all as long I do not have to witness it. We hear all this palaver about diversity and so on. How are we going to know how diverse it is and what if we want to appoint a gay judge? Personally I think it is nonsense; it does not matter a damn to me what they are. However, if we want diversity and all this stuff, then knowledge of sexual orientation is quite appropriate.

I would be interested in both the Minister’s response to these two points and Senator McDowell’s response, to which I look forward with great interest.

Does Senator McDowell wish to respond before I call the Minister?

I should examine the points made by Senator Norris carefully and respond to each of them. First, the arguments I have made that the Government can and should have regard to somebody’s ideology or outlook, whether such a person is liberal or conservative, apply to the Government. The whole purpose of what I said about that is that this is a choice for the Government alone. If the Government wants a conservative person, so be it. If it wants a liberal person, so be it but the Government cannot delegate that discretion to a group of people who are not in government and who are not responsible to the people.

I would make the general point that if this measure or provision, is not either implicitly or explicitly part of the interview process, the members of the commission may believe it is their entitlement to explore with candidates their moral outlook on one question or another or their attitude to social controversial issues in one way or another. By way of general preface to my remarks in response to Senator Norris, my point is that this is a governmental decision alone. It cannot be delegated to a group of people - judges, barristers, solicitors or a majority of so-called lay people chosen by the Public Appointments Commission.

I want to state also, in respect of that lay majority, I do not know who will be putting their names forward if this Bill ever becomes law. I wonder why someone would want to be on such a commission. Would they have an agenda? Would they say, "I want to liberalise Ireland" or "I want to make Ireland more conservative"? Would they have an agenda on a series of issues? Would they have an agenda that they want to influence the way in which, for instance, the courts in the future interpret the Constitution conservatively, liberally, creatively or whatever? My point is simply put this way, those are issues for the Government.

The Minister, Deputy Ross, has on a number of occasions indicated he wants to take away from elected politicians the function of choosing our judges. That is his broad philosophical position. He accuses elected politicians of engaging in cronyism.

I would not dignify that with the word "philosophical".

He has made the argument on a number of occasions that unless this Bill is brought through, the culture of cronyism will continue. I was grateful to Senator Boyhan for making an inquiry of the Courts Service as to how many appointments have been made while the Minister, Deputy Ross, was sitting at the Cabinet table. It appears it amounts to 45 at all levels of the Judiciary from the Supreme Court down to the District Court. I have made the point repeatedly that none of the appointments made while the Minister, Deputy Ross, has been at the Cabinet table has attracted any controversy. None of them has been tainted with any publicly uttered charge of cronyism or political discrimination of any kind. The appointments that have been made by this Government, notwithstanding the presence of the Minister, Deputy Ross, at the Cabinet table, have been of a high quality and, generally, have been accepted.

(Interruptions).

The Government has functioned very well in this respect. If the Minister, Deputy Ross, has any views about the candidates proposed at Cabinet, he has had an opportunity within the Cabinet room to express his views and doubtless they have been listened to very carefully.

I am not being mischievous in the slightest. I am pointing out what the constitutional order is, and I am making the point that the man who claims that this Bill is necessary to end cronyism-----

He knows a bit about cronyism himself.

-----was party to a process which has produced excellent appointments at every level of the Irish Judiciary. There have been 45 such appointments since he took office, and there has been no controversy whatsoever in regard to any of them. Unless the Minister, Deputy Ross, is suggesting that he is personally keeping Fine Gael right on these issues by his influence at the Cabinet table, which I regard as a ludicrous proposition, the only logical conclusion is that his charge of cronyism is wholly false and baseless.

What relevance has this issue to the debate on the Bill?

It is very relevant. Senator Conway should sit down and stop talking.

I am as entitled as Senator Norris is to talk, even though he is the father of the House.

Senator Conway should be aware that we are discussing an amendment which would prevent the commission from inquiring into the political, ideological, philosophical or religious views, or the sexual orientation, of candidates. Of course the charge of political cronyism is relevant in that context. Those issues could well inform a Government in its choice of an appointee. Cabinet members might well say, in total good faith - indeed, they ought to say it, if it is their view - that a candidate's ideological views are so extreme on some proposition that he or should not be appointed to the Supreme Court, in particular, or to the other levels of the Judiciary. On the other hand, they might say that a good, card-carrying former member of the Communist Party would make a very good District Court or Circuit Court judge because his or her ideological views are likely to have little or no impact on his or her work as a judge.

The point I wish to emphasise is that I cannot imagine that it could ever be proper to ask a candidate, whether a sitting member of the Judiciary or a person aspiring to be appointed for the first time to judicial office, about his or her political views. I cannot imagine any circumstance in which it would be appropriate. That is so self-evidently the case that it can hardly be gainsaid. Therefore, it should be clearly understood that no such inquiry can or should be made by the commission in its interview process and that this criterion should be completely outside its evaluation of applicants for recommendation.

The same applies to candidates' religious views. There was a time when the Government of this State deliberately appointed members of the so-called minority religion, that is, the Protestant religion, to judicial office as a matter of policy. The idea was that there should always be a mix of Catholics, Protestants and, later, Jews in the High Court and Supreme Court. That was a policy to which Governments adhered because it was necessary to indicate, at a time when sectarianism in Ireland was casual and rife, that justice was administered in courts where there was no sense that any religious minority was excluded. As I wrote in a recent article, I remember as a child and teenager seeing advertisements for a grocer's assistant with the letters "RC" or "CoI" alongside the word "required" in brackets. That was a regular thing in the jobs vacant columns.

Surely not "CoI"?

Sectarianism was so rife and so deeply ingrained in this country that people used to specify the religion of grocer's assistants, housemaids and even people coming to lodge in their property. We know this from the decision of the High Court in the case of Schlegel v. Corcoran and Gross in regard to anti-Semitism, a most unfortunate decision of the late Mr. Justice Gavan Duffy in the pre-war years.

What was the decision?

He ruled that a landlord with anti-Semitic outlooks could not be held to be unreasonable in refusing to allow a Jewish dentist to use the ground-floor rooms of her home in Harrington Street in Dublin because, as the judge put it, such prejudice was so notorious and ingrained that it could not be regarded as unreasonable. That is how the world was then, but it is not the same now.

The third concern is a person's ideological belief. I know of former elected members of the Workers Party who must, at one stage, have been of Stalinist orientation who were, nevertheless, selected for the Circuit Court. It seems to me that it clearly cannot be any of the commission's business to inquire into candidates' ideological viewpoint, to ask whether they are a liberal capitalist, a social democrat, a strong socialist, a nationalist or a strong something else. Surely it must be an absolute cornerstone of a fair, merit-based recommendation by a non-governmental body that the latter does not take those issues into account?

The final consideration relates to sexual orientation. We now have members of the gay and lesbian community on the Bench, but that has occurred naturally and is not a matter of public announcement one way or the other. It would be very strange indeed if any person could be asked for his or her sexual orientation or related questions when presenting for interview, filling out questionnaires or being evaluated by experts hired on a contractual basis. Information of that kind must be irrelevant to the question of whether the candidate should be short-listed for the consideration of the Government. Whatever the members of Cabinet make of the person after the short-listing is a matter for them, but it cannot be that a statutory body would have regard to such matters.

When Senator Norris says that the considerations to which I referred could or could not be relevant to the appointment of a person as a judge, I agree wholeheartedly that they could be. However, under our Constitution, the people who are entitled to pass that judgment are the members of the Cabinet and nobody else. That is my point.

It is not a very good one.

It is a good one. If the Senator thinks for one minute of the contrary position, that an applicant, man or woman, solicitor or barrister, would go before the commission for interview and be asked questions about his or her homosexuality, membership of a political party, religious views or whether he or she is an atheist or theist, Protestant or Catholic-----

What about Mr. Justice O'Hanlon?

I will come back to him in a second.

A person who was going before a committee and felt that he or she may be asked questions on those issues would be somebody who, strangely, could not be asked those questions for any other position by a would-be employer and could seek redress, curiously, from the Equality Tribunal if asked such questions in an employment context. This appointment being to a judicial office is not employment and it is not subject to the equality Acts. For that reason, this particular measure is designed to warn the commission that it is not judges of these matters and should not make judgments by reference to these matters. Such matters should be purely and exclusively for the Government of the day to consider.

Senator Norris raised the question of the late Judge Rory O'Hanlon. He was, in his early middle age, a remarkably good academic and lecturer in University College Dublin. I do not know if the Minister ever sat at his feet but I did. He was regarded as a clear-minded, liberal, republican, middle-of-the-road lecturer with a great grasp of constitutional law.

What happened to him?

He had a very impressive capacity to communicate constitutional law issues in a very neutral but also really educational way to his students. None of them would have guessed - certainly, I would not have guessed - that he would have ended up espousing the natural law arguments and saying that natural law was superior to man-made law, positive law and the like.

Would it not have been easy to find that out?

No. Senator Norris might reflect on the following point. Anybody who knew about him knew that the views that he laterally expressed, which led to controversy as regards his presidency of the Law Reform Commission and the like, were views that developed after his appointment because he had a particular path of personal development in regard to religious matters and religious organisations, which nobody would have predicted ex ante. The circumstances which led him to the controversy to which Senator Norris refers certainly could not have been anticipated by an interview process at the outset.

I will not detain the House much longer on this subject but I do recall that he advanced the view at a debate at which I was speaking in UCD, at which time he had become more clear in his controversial views, that natural law consisted of one fundamental principle - do good and avoid evil - and that all laws were in fact subsets and workings out of that principle. The problem with that was that when one defines good and evil there are circular definitions because good is that which one should do and evil is that which one should not do. To say that as a law one should do good and avoid evil was merely to engage in a definitional circumlocution. In any event, he believed, absolutely, that natural law came from God and was superior to man-made law. The Supreme Court has very strongly steered our constitutional jurisprudence away from that particular outlook.

I have no doubt that after Judge O'Hanlon espoused those views as President of the Law Reform Commission and a serving judge who was deputed to be President of the Law Reform Commission, the Government of the day, had his name arisen for consideration for appointment to a further position on, say, the Supreme Court, would certainly have taken those matters into account, as it would have been entitled to do. This does not mean that a judicial appointments commission is entitled to ferret out such predispositions as part of a process where men and women who are not judges come before it and seek recommendation for appointment to judicial office.

If the question posed by Senator Norris is whether a judicial appointments commission could not legitimately inquire of the matters which are referred to in this amendment, my response is that it could not do so because it would be trespassing on the discretions given to the Government of the day to whom alone the political judgment as to the suitably of a candidate on these grounds is given. The members of the judicial appointments commission are not constitutionally invested with the function of making those decisions or expressing views on those matters. To bring it down to much more plain and less abstract propositions, if anybody went before the judicial appointments commission and was asked about, for instance, his or her sexual orientation or asked questions which tended to explore that issue, he or she would rightly feel that a group of people who were not elected and were not selected by reference to these matters was attempting to invade the governmental discretion on these issues. I stand over this amendment and its necessity.

I would like to nitpick a little with my distinguished colleague, Senator McDowell. First, when speaking about the Government's appointment of minority candidates the Senator lumped them all together as Protestants. I am an Anglican. I am not a Protestant. I am a high church Anglican. I remember when I was a child fighting with my great friend Michael Moran, who I am glad to say is still alive and friendly with me, about a dinky toy and Michael won by sticking his tongue out and saying, "Yeah, you're not a Catholic." When I went home to my mother in floods of tears she asked, "What's wrong darling?" and I responded "Michael Moran says I'm not a Catholic". She said, "Of course you are darling; don't you say every Sunday in Cathedral, 'I believe in one holy, Catholic and apostolic church'? You're just not part of the Roman error like Michael Moran." That is the way my mother saw the Vatican.

Second, in regard to the dreadful judgment in the anti-Semitism case, where the judge said it was so ingrained as to be reasonable, that is the most half-witted comment I have ever heard, even from a judge.

It is from 80 years ago.

Yes, but 80 years ago is quite relevant. Nazism was ingrained but it did not make it reasonable. I think that statement is absolutely shocking. I was immensely heartened to hear from Senator McDowell that appointment to a senior judicial position is not employment. I always thought they got paid for it. I am delighted to learn that they do it for nothing. I thank the Senator for that wonderful news.

Senator McDowell raised the wonderful notion of questions tending to disclose sexual orientation. I wonder what they could be. Would they be, "Can you sing 'Over the Rainbow'?" and "Are you a fan of Gloria Summers?" Are those the sorts of questions that could be asked? I do not understand.

On the main point that Senator McDowell made, in my opinion the commission is perfectly entitled to ask questions and to establish the position. It is not making a judgment. As Senator McDowell said, it is for the Government alone to make a judgment and to make a decision on the appointment. It still has that discretion. There is no difficulty with that. The Government makes the decision. It is not up to the commission to stand in judgment or to rule out any applicant on these bases. It is a useful function for the commission to ask these questions and ascertain the facts and, acting on those facts, the Government makes its decision.

That seems to me to be quite clear. However, there is a difficulty here with questions of sexual orientation and so on. Senator McDowell's amendment refers to the requirements of any statement made or published under the Part. I have difficulty with the term "publication". If the commission asks questions about private matters such as sexual orientation and so on, that should not be disclosed to the public. That is of no interest to the public. In fact, I do not think the sexual orientation of a judge is of the slightest significance or importance. There are good fairies and bad fairies, the same as in any population group. I have some concern about that.

Another point arises apart from that. The commission may seek information about the position of applicants on various matters. That is reasonable enough. This still leaves the decision-making capacity in respect of the appointment of the judge firmly in the hands of the Government. That is my position, but I would be happy to hear further from Senator McDowell on the matter if there is something I have missed or if I have misinterpreted things. I will make my point again. The commission establishes information. Acting on that information, the Government makes the decision. There is no attempt to take away the decision-making capacity of the Government.

Senator Norris seems to ignore the fact that we are dealing with Part 8 of the Bill, which is concerned with the publication. This is set out from page 33 onwards and we are now at page 34. The purpose of this part is to provide for a statement on selection procedures and requisite skills and attributes. This is to be prepared in draft form by the procedures committee of the commission and approved by the commission having consulted the Minister. Section 53(1) states:

Subject to the provisions of this section, the Procedures Committee shall, as soon as may be after the commencement of this section and from time to time thereafter when required by a subsequent provision of this Part to do so, prepare—

(a) a statement setting out the selection procedures, and

(b) a statement of requisite skills and attributes,

and submit each of those statements to the Commission for its approval under section 54.

Then section 55 permits the commission to publish those statements if it approves them. These are effectively the ground rules for the interview process, which refers to need for selection procedures to comprise comprehensive procedures, including provision for interviews and other selection test approaches and methods in line with the requirement of the vacancy or vacancies proposed to be filled. This is not a scenario where the commission would end up asking a candidate or applicant about his sexual orientation or political outlook with a view to publishing that information. This provides for publishing the ground rules of the interview process. That is what I am concerned with. The ground rules for the interview process should be blind on these issues. That is why the statement made or published should be interpreted in a accordance with the terms of the Bill and in particular with the definition of "published statement" in the section 2, which means a published statement having the meaning assigned to it by section 55 (1).

If an applicant comes before a committee for appointment to any position that is deemed to be employment in an office in the public service, the applicant has a statutory right under equality legislation not to be asked these questions or not to have these questions put to him or her. That applies under the equality legislation that these Houses have enacted. An employer may not conduct an interview process in which he asks questions along those lines. To ask such questions as part of the interview process is deemed to be discriminatory. If an employer asks a candidate whether he or she is a member of the Traveller community as part of the interview process, that immediately gives rise to a statutory right to invalidate the interview process if the candidate does not get the job on the basis that irrelevant considerations were raised for his or her employment.

I accept what Senator Norris says about the requirement for diversity being something that might or might not make it relevant or irrelevant that someone came from the Traveller community or was manifestly of a different racial orientation by skin colour to other candidates or whatever. What I am seeking to establish is the ground rules that the commission is obliged to create under this Part and what the procedures committee is obliged to draft and have approved by the commission subject to consultation with the Minister. Those rules make it clear that, although this is not an employment process and although the equality Acts clearly will not apply here - they could not possibly apply - some of the foundation principles of fair interview and selection equally apply to the processes of the commission.

Senator Norris makes the point that if it is for the Government to decide then the commission is not making that decision and yet the commission will be faced with 12 applicants for a position in the Court of Appeal. The commission will be obliged to cut down the number to three. As the Bill stands, the commission must indicate its order of preference within a shortlist of three. The real issue is if the commission is going to tell people they were not shortlisted but they were asked about their sexual orientation, religion, political or ideological views. If that happened in any other context a case for compensation would immediately arise. We have to be consistent in our approach to these matters. The Government, in making a decision on whether to appoint myself or Senator Norris to judicial appointment, would be free to make the decision between us by reference to whom it considers to merit the position more and by reference to a great many things, including outlook, things we have said in the past or things we are thought likely to believe or whatever. That is perfectly reasonable.

Senator Norris contested the presidency. The people were entitled to take into account what they thought of his outlook and all the rest in an electoral process.

They did not get to hear what I thought. They got what the media said, which was all lies.

That is the point. The point I am making in this context is simple in respect of the interview process. Section 53(5) states:

In the preparation of the statement referred to in subsection (1)(a), the Procedures Committee shall, amongst other matters, have regard to—

(a) the critical importance of the selection procedures, in filling vacancies in judicial office, to the administration of justice,

(b) the need for adherence to recognised best practice standards in recruitment processes for judicial and other related offices,

(c) the objective that the membership of the judiciary should comprise equal numbers of men and women...

The Judiciary should be equally composed of men and women and so on and so forth. I cannot accept the proposition that candidates for selection for recommendation should be asked questions to elicit from them their religious beliefs or non-beliefs, their ideological beliefs in the past or their current ideological beliefs, their sexual orientation or their political affiliations. If this is to be the apolitical process which the Minister, Deputy Ross, speaks about, I cannot imagine how it would possibly be correct to ask a person for his or her political opinions as part of the winnowing process to produce a shortlist.

On Senator Norris's statement that he is not a Protestant, I wonder about that. I think the Senator is putting himself into a very high Anglican little niche.

If one looks, for instance, at the charter of Trinity College, it was established for the advancement of the Protestant religion. I do not think it took a view that Anglicans were outside that particular category.

That was a shrewd thrust, as one would expect from Senator McDowell.

From one university nominee to another.

Absolutely. I think I heard Senator McDowell say that the Equality Act will not apply to this legislation. I note the Senator is nodding. How can that be? Perhaps the Minister will indicate if there is a section in this Bill which excludes it from the operation of the Equality Act because I would think that quite extraordinary. Maybe, it does. I must have overlooked it. Perhaps there is such a provision in the Bill. If the Equality Act did apply we would certainly be in serious danger of judges taking cases for compensation. They are pretty thirsty for their old lucre, those self same judges. I previously said in regard to a proposal to grant off-licence status to supermarkets, shops and so on, which was subsequently done despite the protests of the local community, the Garda and the councils, that I did not know who these judges were, that they must be lunatics and that they certainly did not live in my area. A judge, apparently, took an action for libel against RTÉ, which I did not know at the time. There was only one judge handling licences at that time. I would have defended it and I would have won but I suppose RTÉ found it difficult to find a barrister to go against a judge in court. That would have been a very human situation. I warned them anyway, because I said it twice. I said it once on radio and once on television and of course the bloody old judge took a second case, which was most extraordinary and wrong.

With regard to Judge Rory O'Hanlon, I am afraid I got his name wrong in the first instance because I called him Judge Redmond O'Hanlon, which is an O'Hanlon family name and so it was a natural mistake. Senator McDowell is right that the correct name is Judge Rory O'Hanlon. I did not know that he had a Damascene conversion to fundamental Catholic beliefs and so on. That is one case. It does not mean that there are not other people who come with these beliefs and they could be ferreted out.

Senator McDowell did not really address fundamentally the question that I raised about the fact that the Government still had the power to make the decision about the appointment of judges. The commission establishes the facts. Senator McDowell's point that there could be 12 applicants for a job, which the commission would then whittle down to three, lends substance to his argument but I would still maintain that the Government retains the absolute right to make the appointment.

We are agreed completely on that issue.

Would the Minister like to respond?

Oh dear. I note the Minister does not want to respond and I would not in any sense want to compel him to do so but perhaps he would indicate if there exists in this Bill a section which excludes it from the operation of the Equality Act.

The amendment in the name of Senator McDowell and others duplicates much of the general law and, indeed, the general obligation under employment equality law and good interview practice as well.

Does equality law still operate here?

Senator McDowell was wrong.

After almost an hour of listening to Senators sparring, for the reasons I have outlined I am not minded to accept 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, 10; Níl, 13.

  • Clifford-Lee, Lorraine.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Marshall, Ian.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Norris, David.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.

Níl

  • Burke, Paddy.
  • Buttimer, Jerry.
  • Coffey, Paudie.
  • Conway, Martin.
  • Feighan, Frank.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • Ó Donnghaile, Niall.
  • O'Donnell, Kieran.
  • Reilly, James.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and Frank Feighan.
Amendment declared lost.
SECTION 53

I move amendment No. 97e:

In page 34, line 16, after "requisite" to insert "experience",".

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, 10; Níl, 13.

  • Clifford-Lee, Lorraine.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Marshall, Ian.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Norris, David.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.

Níl

  • Burke, Paddy.
  • Buttimer, Jerry.
  • Coffey, Paudie.
  • Conway, Martin.
  • Feighan, Frank.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • Reilly, James.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and Frank Feighan.
Amendment declared lost.

I move amendment No. 97f:

In page 34, to delete lines 22 to 24.

The purpose of this amendment is to delete section 53(3). The Bill, as drafted, states, "In the preparation of the statements referred to in subsection (1), the Procedures Committee shall consult with the President of each court (save a President who is a member of that Committee)." It goes on to state, "However if none of the judicial offices in a particular court will be the subject of the particular statement concerned, then consultation, under subsection (2) , with the President of that court is not required in relation to that statement’s preparation." That means, for example, that if the particular statement does not apply, say, to the Court of Appeal, the President of the Court of Appeal will not be consulted in respect of a provision relating to appointments to the High Court. I cannot see any reasonable basis for that requirement. It seems it would be far better to leave the section with subsection (4), which states, "In the preparation of the statements referred to in subsection (1) , the Procedures Committee shall avail itself of the advice and expertise of any consultants or advisers appointed under section 11 (7) by the Commission to assist it in the performance of its functions."

It would be better to leave it that way.

I believe we are depriving ourselves of the valuable contribution of a member of the court in question. This provision seems to be a bit odd. It means, for example, that if appointments to the Supreme Court are not considered, the Supreme Court would not have any say in the matter. That is daft. Why should the Supreme Court not have a say? Of course it should. The Supreme Court is, as its title states, the supreme court of the land. In appointing judges I would have thought that the views of members of the Supreme Court would be of interest and of use. I have no difficulty whatever in supporting Senator McDowell's excellent amendment.

If Senators are minded not to press this amendment, I will arrange to consult the parliamentary draftsperson with a view to facilitating any necessary change on Report Stage.

In view of that generous approach, I will not press the amendment any further.

Is Senator McDowell withdrawing the amendment?

Amendment, by leave, withdrawn.

Amendment No. 98a is a physical alternative to amendment No. 98. Amendments Nos. 98 and 98a may be discussed together by agreement.

I would prefer to discuss them separately.

The amendments have been grouped for a reason. Is the Senator making an issue of this?

I want them to be un-grouped for a reason but I will be guided by Senator McDowell.

There was a larger group of amendments but amendments Nos. 98 and 98a were separated out. They are to be discussed together if Senator Norris is agreeable to that.

I still do not like it.

We will press on with the grouping of the amendments.

No, we will not.

I believe the decision is at my discretion. I will hold firm and have amendments Nos. 98 and 98a together.

The rule or procedure is that if it is not agreed, we deal with amendments separately.

Yes, that is the tradition.

In that case, we will deal with amendment No. 98.

I move amendment No. 98:

In page 34, to delete lines 25 to 28.

This amendment proposes to delete lines 25 to 28, which are now comprised in subsection (4). To put this into context, subsection (4) states: "In the preparation of the statements referred to in subsection (1), the Procedures Committee shall avail itself of the advice and expertise of any consultants or advisers appointed under section 11(7) by the Commission to assist it in the performance of its functions." This provision is very obnoxious because it is a mandatory provision which requires the procedures committee, as a matter of obligation, to avail itself of the advice and expertise of any consultants or advisers appointed under section 11(7) by the commission to assist it in the performance of its functions. Section 11(7) provides that:

(7) The Commission may as it considers necessary to assist it in the performance of its functions —

(a) enter into contracts or arrangements with any person, and

(b) with the consent of the Minister, appoint consultants or advisers.

Section 11(8) states:

(8) Any contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (7) may enable the person, consultant or adviser to—

(a) advise and assist the Commission in its consideration of applicants at a preliminary stage in the course of the selection procedures, and

(b) provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures, but shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing (other than a thing which facilitates such performance).

The final line is strange and we have never been able to work out what it means.

It sounds like a pop song.

It is very hard to understand it. It seems there is a mandatory requirement that the procedures committee avail itself of the advice and expertise of any consultants or advisers appointed under section 11(7). The committee would even be obliged to consult persons whose role is to vet District Court applications because they are so many in number. This is in relation to the committee preparing a statement setting out the selection procedures and a statement of requisite skills and attributes, as set out in section 53(1). I do not see why there should be any obligation to consult advisers just because they have been appointed to do a different function, namely, to winnow out clearly unsuitable applications. I do not see why they should be consulted then as a matter of obligation in relation to the preparation of statements for courts. I cannot imagine what significance they might have. Consider an ordinary judge at the Supreme Court for instance. How could it be that under subsection (4), the procedures committee, in establishing procedures for appointment to the Supreme Court, is obliged to "avail itself of the advice and expertise of any consultants or advisers appointed under section 11(7) by the Commission to assist it in the performance of its functions"? I do not know why this obligation is provided for but it seems to be wrong.

This is particularly obnoxious because it uses the word "shall", rather than "may". I would have less objection to it if it provided that the procedures committee "may avail itself of the advice and expertise of any consultants or advisers". Who are these people? They are not members of the commission. They are defined as any "person, consultant or adviser", which could be anybody. It could be any one of the 4 million or 5 million citizens of the State. The final line of subsection (8), which refers to not enabling "the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing (other than a thing which facilitates such performance)", is completely opaque. What in the name of God is that about? Can somebody explain that to me because it is not English? We have heard much recently about legislation being accessible to the public and written in simple, plain, basic English. That is surely not simple, plain, basic English.

Amendment No. 98 is similar to earlier amendments. I already made reference to amendment No. 29 and we discussed these issues and all of the related provisions in respect of section 11, to which the Senators referred. I do not agree with the approach of the Senators on this matter, as I have stated on record. I do not intend to accept the Senator's amendment.

Without trespassing on the next amendment No. 98a, it addresses the "shall" and "may" issue raised by Senator Norris. Will the Minister indicate whether he will accept that amendment?

In fairness, the Senators cannot have it every way. We wanted to discuss these two amendments together for a reason. We will discuss amendment No. 98a when we reach it.

The problem is that-----

The Senators cannot have it every way.

Why not? I would like to have it every way.

I ask the Senators to show a bit of respect for the Chair. I made a ruling.

The Senator did not agree with my ruling and is now trying to discuss the amendment. I would have been happier for him to so do in the first place. This is like a kindergarten.

One of the problems with grouping amendments is that one finds out at the very end whether the Minister will make a particular concession.

That is a fair point and it is another reason amendments are sometimes grouped.

Is the answer "Yes" or "No" in regard to------

I do not wish to be out of order, but the answer is "Yes", I can accept amendment No. 98a.

That is an improvement.

I will accept it on the proviso that it speaks for itself and does not warrant the Senators making a contribution on it. There is no need to speak on it at length.

Amendment put and declared lost.

I move amendment No. 98a:

In page 34, line 26, to delete “shall” and substitute “may”.

Amendment No. 98a has already been discussed, but it has not been discussed in the sense that we separated them.

Does Senator McDowell wish to make a contribution?

No, the Minister indicated that his patience will expire if I so do.

Sorry, I forgot that very relevant point.

The Minister is in very jovial mood this evening. Let the record show that he is smiling-----

We are making progress.

-----like a shark.

Amendment agreed to.

Amendments Nos. 99 and 101 are related and may be discussed together, by agreement. Is that agreed?

No, it is not agreed.

The amendments are grouped for a reason. If Senators are agreeable, we will discuss them together.

No, we will discuss them separately.

Yes, we will discuss them separately.

I move amendment No. 99:

In page 34, line 30, after “shall” to insert “ensure it is compliant with section 7(1) and may”.

This amendment seeks to insert in page 34, line 30, after the word "shall", which has now been changed to "may", the words, "ensure it is compliant with section 7(1) and may". Section 7(1) provides that, "A decision to recommend, under this Act, a person for appointment to judicial office shall be based on merit."

I do not consider the amendment necessary because all recommendations under the Act must be based on merit, having regard to section 7(1). Having regard to what Senator Norris stated earlier regarding ensuring the language is not overly verbose or prescriptive, I do not see the necessity for the amendment and I am not minded to accept it.

The proposal is to insert into section 53(5), which states, "In the preparation of the statement referred to in subsection (1)(a)," which is a statement setting out the selection procedures, "the Procedures Committee shall, amongst other matters, have regard to", a requirement to ensure it is compliant with section 7(1) and may have regard to the critical importance of the matters listed thereafter. The purpose is to restate the dominance of the merit-based appointment over the criteria set out in paragraphs (a) to (i) of section 53(5).

Merit is of critical importance in this section, but it is not mentioned. It seems to me that Senator McDowell has a very good arguable case that it should be mentioned as it is the principal criterion. Section 7(1) states, "A decision to recommend, under this Act, a person for appointment to judicial office shall be based on merit." Merit is the number one consideration, right up at the front. I think it useful for that to be reiterated at this point to make it abundantly clear that these appointments are made primarily on merit.

I have been trying to be brief, but perhaps I should be clear about the reason for the amendment.

The Senator may be clear and as lengthy as he likes.

I can do it reasonably briefly. Section 7 is divided into two subsections, the first of which states that, "A decision to recommend, under this Act, a person for appointment to judicial office shall be based on merit." Subsection (2) states, "Subject to subsection (1), where the function, under this Act, of selecting and recommending persons for appointment to a judicial office falls to be performed, regard shall be had to—(a) the objective that the membership of the judiciary should comprise equal numbers of men and women, (b) the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole," and, (c), the provision relating to the Irish language. Section 53(5) states, "In the preparation of the statement referred to in subsection (1)(a), the Procedures Committee shall, amongst other matters, have regard to— (a) the critical importance of the selection procedures, in filling vacancies in judicial office, to the administration of justice, (b) the need for adherence to recognised best practice standards in recruitment processes for judicial and other related offices, (c) the objective that the membership of the judiciary should comprise equal numbers of men and women,"-----

That is not subsection (5).

It is. I am reading from page 34.

I beg the Senator's pardon.

The objective that membership of the Judiciary should comprise equal numbers of men and women and the objective that it should reflect the diversity within the population as a whole are two matters to which the commission is supposed to have regard under section 7(2), but they are made, as stated in section 7(2), subject to section 7(1), namely, the requirement that appointments be made on merit. It seems to me that to omit the reference to merit from section 53(5) but retain reference to gender equality and diversity is not appropriate.

I note that the reference to diversity in section 7(2)(b), which states, "the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole", is converted to the simple proposition noting, "the objective that the membership of the judiciary should reflect the diversity within the population as a whole".

It is interesting that the reference to feasibility and practicability is deleted at that level, whereas it is mentioned at the top of page 10 as a qualification to the requirement for diversity. The basic point is that section 7(2) is entirely subsidiary to the merit principle set out in section 7(1), but when we come to section 53(5), that subjection to merit seems to evaporate.

As I indicated, I do not believe the amendment adds anything to the legislation. However, nor do I believe it detracts in any way from the important merit-based principle. In the circumstances and on reflection, I am prepared to accept the amendment.

I am grateful to the Minister for accepting Senator McDowell's amendment. The Senator more or less anticipated what I was about to say. The Minister seeks to include the objectives that the Judiciary be comprised of equal numbers of men and women and reflect the diversity of the population as a whole. The Bill further states in section 53(5)(f) that members of the Judiciary should be proficient in the Irish language. That completely rules out any suggestion that it is not necessary because if that were the case, it would not be necessary to have those three qualifications in the text either because they are already rehearsed. I thank the Minister for accepting the amendment.

Amendment agreed to.

Amendment No. 99b is a physical alternative to amendment No. 99a. Amendments Nos. 99a, 99b, 105c, 106, 107 and 108 are related and may be discussed together by agreement. Is that agreed?

No. I would like the amendments to be discussed separately.

In that case, Senator McDowell may move amendment No. 99a.

I move amendment No. 99a:

In page 34, to delete lines 35 to 38.

This amendment proposes to delete lines 35 to 38 on page 34. It was submitted prior to the amendment we have just discussed. As a result, it is a bit redundant as we have already dealt with that issue.

Amendment, by leave, withdrawn.

We will move to amendment No. 99b as it was not discussed with amendment No. 99a, as intended.

I appeal to the Acting Chairman to ask the Bills Office to put together a compendium of all the amendments at this stage. We have been dealing with the Bill for about a year and it is terribly confusing to have to look through lists of amendments to find which one is which.

We can certainly ask it to do so.

I move amendment No. 99b:

In page 34, line 35, after “judiciary” to insert “in each of the courts”.

This amendment deals with the proposition that the Judiciary as a whole should-----

I thought we were separating these amendments but the monitor shows we are taking all of them together.

The monitor reflects what is in the document.

That is what I thought. We are separating them then.

It is clear that we are now discussing amendment No. 99b.

The purpose of amendment No. 99b is to show the Minister that the phrase, "the objective that the membership of the judiciary should comprise equal numbers of men and women", is somewhat skewed. It is perfectly compatible with the current phraseology that there could be a predominance of women in the District and Circuit Courts, and a predominance of men in the High Court, Court of Appeal and Supreme Court. The amendment makes it clear that gender equality should be respected as a general proposition at all levels of the courts. It does not satisfy the view of most people on gender fairness that while there might be equal numbers among the 160 judges - I have forgotten the exact figure - if we dig down, we find that women are predominant in the lower courts and men are predominant in the higher courts. That is hardly what the Minister set out to achieve. The amendment proposes that the general policy objective that women should be represented equally in the Judiciary should apply at every level and we should not simply look at it in the lump, so to speak. If we were to do that, having 80 women judges in the District Court would count as equality despite having no representation of women in the higher courts. That is what my amendment is supposed to achieve.

There should be no humming or singing in the House.

I was just reminded of the wonderful refrain of "The Auld Triangle":

In the women's prison

There are seventy women

And I wish it was with them

That I did dwell

The Senator could perhaps take that outside.

I agree completely with Senator McDowell on this issue because it does not respect diversity to have all women in one quarter and all men in another. That is just daft. That is the reverse of diversity. If we want diversity, this amendment is reasonable, and the Minister may find it possible to accept it as he is in a reasonable mood this evening. It seems absurd to have no diversity in each of the courts but take the view that there is diversity overall.

It is somewhat unfair to constantly refer to the Minister's mood.

What is unfair?

It is inappropriate to refer to the Minister's mood.

It is not. We are complimenting him. The Acting Chairman should not be so prissy.

The Senator knows all about prissiness.

I am not convinced of the necessity for this amendment and having listened to the Senators, I am even less convinced. Senator McDowell made specific reference to the higher courts. For the record, as of last week, the gender split was 50:50 in the Court of Appeal, and 55% male and 45% female in the Supreme Court. It is 57% male and 42% female in the Circuit Court, and 57% male and 43% female in the District Court. I accept that there is an absence of parity in the High Court, where the split is 70% male and 30% female. However, that does not prove Senator McDowell's point that the higher courts, as a group, are experiencing an absence of movement towards equality.

I have listened carefully to what the Senators have said. I accept the need for gender equality and for that objective to be applicable in appointments, as my record as Minister reflects. Reference was made earlier to a figure of in excess of 40 appointments. If one were to go through those, they would show a determination to ensure gender equality. Such determination is there already. I am not convinced of the necessity of the amendment. If I were to specify in the area of gender equality, I would also have to do so in respect of other mandates, such as the area of diversity.

The amendment is not necessary because its intent is already expressed in the Bill.

I am disappointed by the Minister's response. Clearly, the gender equality mandate is not properly addressed if we have a situation where, in the High Court, for instance, 70% of judges are male and 30% are female, but the split is 55:45 in the District Court. The ratio might even go to 45:55. The logic of seeking to recognise the equality of men and women, as lawyers, jurisprudents, holders of constitutional office and members of our society, should apply at every level of the courts. It should not be the case that the overall balance between men and women right across the courts systems is more or less adhered such that we have a situation in the High Court, say, where the ratio of males to females is 70:30. If there is a logic to the gender fairness mandate, it should apply on a layered basis throughout the Judiciary rather than just on a vertical basis.

The Minister is saying that the same logic must then apply to diversity, but I do not agree with that at all. We have racial minorities, religious minorities, Traveller minorities and gender orientation minorities. It is not reasonable to say, for example, that there should be a Traveller in the Supreme Court as a matter of intent, because that is not practicable. We do not need to have people of different races in the Supreme Court on a tokenistic basis. Appointments must, in the end, be made on the basis of merit. There is a very clear basis for saying that the gender equity principle is different from the diversity principle because, in section 7(2), the diversity principle is referred to as applying only in as far as it is "practicable" and "feasible", whereas the applicability of the gender equity principle is unqualified, with no reference to practicality or reasonableness. In other words, the draftsman has conceded that the two principles are different by way of the different language used to reference each. That is good grounds for distinguishing between gender equity and diversity equity. Second, my point about layered gender equity in addition to vertical gender equity is a valid one. Therefore, I propose to press the amendment.

I am not minded to divide the House on this proposal.

This is a game of bluff.

That is one way of putting it.

The Minister seemed to be against the amendment until I said I was pushing it to a vote. Now he says he will allow it.

I am being accused of bluffing when I am just being generous.

Is it generous to try to put me off with a bluff? In any case, I am happy if the amendment is accepted. It shows clearly that this debate is worthwhile.

Absolutely. It also points to the important role of the Seanad.

We are improving the legislation by degrees and via persuasion. That is something which certain people writing for the Irish Independent might note. I observe, en passant, that Senator Conway, who is not in the Chamber just now, announced earlier that a particular story in today's Irish Independent is fake news.

Perhaps his name is really Senator Martin Trump of County Clare.

I ask Senators to confine their comments to the amendment.

The author of that article is a very respected journalist. To accuse him in a casual way of writing fake news is not acceptable.

We are discussing amendment No. 99b.

I want to correct the record of the House to make clear that it is not the view of most Senators that Mr. O'Connell in his article today was engaging in fake news. He was clearly careful in conducting the research which shows that a majority of Fine Gael Senators oppose the Bill.

Of course they do. They are sensible people.

Amendment agreed to.

I move amendment No. 99c:

In page 35, to delete lines 1 to 4.

This amendment seeks to delete subparagraph (e) of subsection (5): "the need for the selection procedures to comprise comprehensive procedures, including provision for interviews and other selection tests, approaches and methods in line with the requirements of the vacancy or vacancies proposed to be filled,". I do not know what this provision means. I do know that I am against interviews for sitting judges, as I have made clear, and the Minister has indicated some willingness to be flexible in that regard. Unless somebody can explain what is meant by this subparagraph and suggest what it adds to the legislation, it should not be included. It is vague to the point of total obscurity.

This provision qualifies as what the former Taoiseach, Mr. Bertie Ahern, characterised in the Dáil as "waffle". It is merely stating that the procedures committee should do what it is supposed to do, nothing else. It is absolutely redundant. Why is there a reference to the need for the selection process to comprise comprehensive procedures? Surely this simply means that everything that needs to be done should be done. It reminds me of when I was taken by Mr. Meat Loaf to an exclusive restaurant in New York and he sat down and said, "We will have everything twice." The provision is balls, basically.

Will Senator Norris confine himself to commenting on the amendment?

I am doing so. I am saying it is absolutely incomprehensible. There is reference to "provision for interviews and other selection tests". We have been at this for hours and hours, talking about interviews and so on. What is meant by "other selection tests"? Do the draftsmen even know what that means? It is legislative flatulence.

It is a reference to aptitude tests and things like that.

Whatever they might be. Could there be anything more general than the reference to "approaches and methods in line with the requirements of the vacancy"? They would hardly be out of line with the requirements. The provision is nonsense and I give up at this point.

I do not wish to divide the House just now on this issue. There is very little time remaining.

The Senator can leave it until the next day and just waffle for a bit until 7 p.m.

I will not waffle because I am talking about waffle contained in the legislation. As Senator Norris suggested, this is inflated language which means absolutely nothing. The selection procedures must comprise comprehensive procedures.

At least they got a bit of alliteration in there.

What are non-comprehensive procedures? Nobody knows what is meant by the need for selection procedures to be comprehensive. We have already disagreed on including provision for interviews, but the Minister showed some flexibility on it.

Could the Senator report progress?

I refer also to the need for the selection procedures to include other selection tests, approaches and methods.

Now the Acting Chairman is interrupting me and silencing me.

Is the Senator silenced?

Report progress.

I will report progress.

I ask the Senator in possession to report progress.

I report progress.

Progress reported; Committee to sit again.