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Seanad Éireann debate -
Tuesday, 19 Nov 2019

Vol. 268 No. 5

Judicial Appointments Commission Bill 2017: Report Stage

Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment.

I do not agree with the grouping of the amendments. I thought the Leas-Chathaoirleach was going to announce the grouping.

I have not started into that yet. The Senator is a little previous, if I may so.

It was a pre-emptive strike.

Amendment No. 1 is in the names of Senators McDowell, Boyhan, Craughwell and Marie-Louise O'Donnell, and arises out of committee proceedings. Amendments Nos. 1 and 3 are related and may be discussed together by agreement. Is that agreed?

No. I do not agree with the grouping of the amendments.

What is the Senator's explanation for that?

When the amendments are almost identical I will not speak a second time, in any case, and will just let them go through. I find it very confusing when there are a lot of amendments. It is very distracting. It does not help and it does not give good parliamentary scrutiny, particularly on a complicated Bill like this.

When amendments are almost identical, it is common practice in this House to group them.

These amendments are similar and that is why they are together.

The grouping will help the Senator-----

It does not help me at all.

-----and he will not have to speak a second time.

I have registered my objection.

I do not hear the Senator objecting when-----

Hold on. I cannot have all of the Senators speaking together.

I do not hear Senator Norris objecting when similar amendments are grouped with other Bills, so-----

-----why has he on this occasion?

I have actually.

It is a matter for the Chair. The Chair is in possession now.

I am certainly anxious to avoid repetition.

Could I have a ruling on that? The normal practice in this House, as I know very well, is when a Member objects to the grouping it is not taken.

Provided it is reasonable.

It is reasonable. I have given a reasonable explanation. It is not up to the Clerk to decide what is and is not reasonable.

This simple grouping of amendments Nos. 1 and 3 make an identical change. I do not think it is one, with respect, that the Senator should be disagreeing on. I must insist, as Chair, that we proceed on a basis that is laid down here.

The Chair is violating tradition.

I do not believe-----

I cannot have Senators arguing about it. I do not believe I am, with respect.

I am telling you that you are.

Let us see how we get on.

Yes, I have to manage the debate. Does Senator McDowell want to speak on this one?

I move amendment No. 1:

In page 7, line 10, after “of” where it firstly occurs to insert “advisory”.

Amendment No. 1 is in the names of myself, Senators Boyhan, Craughwell and Marie-Louise O'Donnell.

I second the amendment.

The purpose of this amendment is to insert into the Long Title of the Bill the word "advisory". In general terms, not too much attention is paid to the close test of the Long Title of a Bill. On this occasion, it is important because claims have been made for this legislation by one Member of Government that this will take the appointment of judges out of the hands of politicians and hand it to another group. Of course, constitutionally that is not possible but the claim has been made for the Bill that it has this effect. The purpose of this amendment is to make it very clear that the function of the judicial appointments commission, once established, is purely advisory.

There is another reason the amendment is appropriate. The Bill speaks, at another section, about the function of the commission being to "select and recommend" members of the Judiciary. Of course, there is not a selection of members of the Judiciary by the commission. The selection of a person to be made a judge is a matter for the Government and not for the commission. In these circumstances, the Long Title of the Bill should underline the advisory nature of the commission, should make it clear that the claims made for it, as taking the appointment of judges out of the hands of elected politicians are not correct, and to emphasise that, in line with the Constitution, the function of appointing judges remains with the Executive and that any other body, which is involved in the process, can only be advisory and not determinative in any way of the persons appointed to be judges. It is in that light that I formally move this amendment.

We have agreed to take amendments Nos. 1 and 3.

If the Chair is ruling that they be taken together-----

Because they are similar.

-----the same logic applies to the amendment No. 3 in my name.

It is the same thing.

It is not the same thing but it is similar.

It is the same logic. It is similar, yes.

On that basis, we are proceeding. I want the House to be happy. Senator Norris wants to speak.

Could I just say, in response to this, the Leas-Chathaoirleach was prompted to say that my objections were not reasonable. They are extremely reasonable. I said that in a situation where there was real duplication I would not speak the second time. What could possibly be more reasonable than that? It defies logic to say that it is not reasonable but on this-----

I agreed with the Senator totally. I want to avoid repetition and I think we all do.

Yes, exactly. I said I would do exactly the same but I objected to the grouping of the amendments because I find that-----

It is the Senator's right to object to the ruling.

The Senator could have attempted to divide the House but I am glad that he did not.

Sorry, he could not do so on a grouping.

The whole point of this amendment is to include the word "advisory" and make it absolutely clear and specific that these recommendations are merely advisory, and that they are not legally binding on the Government, which is a very important point.

Article 34.1° of the Constitution provides that: "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution". Article 35.1° is perfectly clear about the appointment of the Judiciary as it provides without ambiguity that: "The judges ... shall be appointed by the President". What we are doing here is exactly what we did during the attempt to extinguish the Seanad; we are protecting, among other things, the powers of the President.

The point of this amendment is to ensure that the language in which the Bill is couched adequately reflects this point that the recommendations are advisory, rather than legally binding. There should be no ambiguity about the status of these kind of recommendations. They cannot be characterised as being binding in any way. They are purely advisory. The discretion of the President to appoint judges on the advice of the Government must not be fettered in any way. It is a very important point. The Minister is shaking his head, so he is obviously not going to accept the amendment but there we are.

Does Senator Bacik wish to comment on amendments Nos. 1 and 3?

I welcome the Minister to House and the opportunity to debate this important Bill. I listened with interest to what Senator Norris was saying and think he has a point, particularly in reference to some of the later groupings. I will certainly raise the same issue about concerns as to the nature of the groupings in respect of some of the later groupings.

I can see, and I think Senator McDowell has outlined, the reasons for amendments Nos. 1 and 3, both of which simply insert the word "advisory". There is a relationship between the two amendments. There will be later groupings where the relationship is not so clearcut and where we may well seek to decouple them and have them debated separately. I have important amendments later that I withdrew on Committee Stage that related to gender balance and the ranking of recommended nominees for judicial office. I want to make sure that those get a full debate on Report Stage because I withdrew them specifically on Committee Stage so that we would be able to come back and consider them again. The Minister had indicated during Committee Stage, in respect of some of my amendments, that he would certainly be looking at those and coming back with a response to them at that point.

I am not convinced by the arguments put forward. We will be discussing the constitutional position under Article 35 at a later stage, as mentioned by Senator Norris, relating to the advice to the President and that arrangement as currently under the Constitution. It is quite clear, and we have known for many months, that no recommendations can be binding on the Government in this process because they are simply recommendations, no more and no less. That position is well understood. If the Government gets three recommendations, it can choose any or none of them. Of course, the revised print of section 47 effectively directs the Government to consider the names of those persons who have been recommended but it is quite clear, right through this debate and this Bill, that no recommendation is in any way mandatory. To that extent, the commission is in no different a position than the advisory board is currently.

I have another amendment to reinstate the senior judicial appointments advisory committee in the Bill. The title of that body tells us much about its role. It is advisory and cannot be more than that. There is no attempt on the part of anybody to dress it up as something that it is not. I do not see any great purpose in changing the Long Title in order to qualify the characterisation of a recommendation. It is a recommendation and I do not believe any part of the Bill is in conflict with that recommendation being advisory, recommended and no more.

I regret that I was out of the Chamber to deliver some papers after the last debate and have just returned so I hope the Minister will forgive me if I go through a number of concerns I have on amendments Nos. 1 and 3.

The Senator does not require forgiveness from me or anybody else.

I know the Minister has spent some time considering the-----

Is it appropriate for the Chair to be prompting people to speak?

I have ruled that Senator Craughwell has the floor.

We are speaking about the Long Title to the Bill and amendment No. 1 on page 7. We are putting in the word "advisory". We are seeking to amend the Title to include the word "advisory" for a number of reasons. As the Leas-Chathaoirleach knows, Article 43.1 of the Constitution provides that justice shall be administered in courts of law by judges appointed and the appointment of judges, under Article 35.1, is the prerogative of the President. We are trying to ensure that we are not taking it upon the shoulders of the legislation, for the want of a better description, to usurp the authority of the President to appoint judges based on a recommendation that is made. It is an advisory recommendation rather than one that is made to the President on the appointment of judges. We are trying to ensure there is no ambiguity whatsoever in the legislation should it pass in this House. I hope the Minister accepts the recommended amendments.

The Minister has made his position clear. Senator McDowell was the proposer of the amendment and might wish to respond.

I did say that amendments Nos. 1 and 3 were similar. They are, of course, slightly different in that amendment No. 3 refers to line 13 of the administrative reprint on page 7, "To enable, through other procedures, the making of recommendations in respect of appointments to senior judicial offices that do not fall within the remit of the foregoing body". The amendment is to insert the word "advisory" there. I take on board the point that the Minister has made that the senior appointments committee is later described as advisory.

I want to emphasise the following, which is worth emphasising in the context of the overall nature of this commission and what is constitutionally permissible and what is not. The Minister has just said that the Government is free not to make an appointment on the advice of the commission. The true situation goes one stage further: the Government is free to make an appointment which is not recommended by the commission. That is the important point that must be borne in mind. If there were any doubt about that, the House should have regard to section 51, which appears on page 33 of the administrative reprint. It states that, "Where the Government decides to advise the President to appoint any serving judge who is a member of any of the Superior Courts to any vacancy arising in those Courts, the Minister shall notify the Commission of that decision and the Commission shall have no further function in relation to that appointment."

This is important for the purpose of underlining public understanding of the Bill. It should be clearly understood that this Bill, as amended on Committee Stage in this House, now not only by silence does not attempt to interfere with the constitutional prerogative of the Executive but section 51 makes it absolutely clear that it is the constitutional prerogative of the Executive to make appointments to the superior courts without the intervention of the commission at all. The commission can be told that it has no function and the Government is making an appointment of a serving judge to any position in any of those courts. That is an important philosophical and constitutional value to be emphasised and it is in that light that the two references to the recommendations being advisory are proposed to the Long Title, to make it very clear, lest anybody say at any time in the future that the Government was acting unlawfully or improperly by not accepting the recommendations of the commission, that it was at no point obliged, and could not be obliged, to act on the recommendations of the commission.

In that context, I believe that the inclusion of the word "advisory" in the two places contemplated by amendment No. 3 is an improvement to the Bill and does not detract from it. It is more honest than the claims that have been made by people that this Bill takes the appointment of judges away from the elected members of the Government and hands it to the commission. Those claims were not made by the Minister who has been meticulously honest in acknowledging that what others claim is being done by this Bill is not, in fact, being done. It should be clearly and unequivocally stated, at every relevant point in the Bill, including in the Long Title, that that is not so.

It is in that light and spirt that I have proposed amendments Nos. 1 and 3.

Is amendment No. 1 being pressed?

I indicated that I wished to speak.

Unfortunately for Senator Boyhan, Senator McDowell was responding, as was his right. Senator Boyhan would have had to get in before Senator McDowell. I asked earlier if there was any other speaker. I had to call on Senator McDowell last because he was responding.

I did indicate to speak.

I missed the Senator.

I appreciate that. There is no problem.

To be fair to Senator Boyhan, he did indicate.

It does not matter.

I apologise because I missed Senator Boyhan.

That is no problem.

That is unfortunate and I am sorry.

It is very unusual.

The Senator will be able to make his point.

The Senator will make the point when we get to the next amendment.

It is a recurring point.

Senator Boyhan is not short of making a point.

Amendment put:
The Seanad divided: Tá, 7; Níl, 16.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • McDowell, Michael.
  • Norris, David.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.


  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • Ó Donnghaile, Niall.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 2:

In page 7, line 12, after “be” to insert “a minority of the”.

I second the amendment.

It has to be remarked on that we are joined by illustrious company from the Lower House.

I am glad to see that.

Excuse me, my eyesight is not good. They are very welcome.

Perhaps the good Deputy might have some words of advice for us.

I would say my colleague, Senator O'Sullivan, is now under observation to see how he is going to deal with this. The purpose of amendment No. 2 is to make it clear in the Long Title to the Bill that the lay members should be a minority of the commission as constituted. At the moment Members will be aware that the Bill envisages at section 10 that it should consist of 17 members. In my view that is an unwieldy and unnecessarily large group of people and if the number of lay persons appointed under section 10(1)(k) was reduced to four, and the chairperson under 10(1)(j) was permitted to be a lawyer, a judge or a layperson this would be a much more effective commission. Therefore, what we are proposing here is that for this advisory body, composed in the main of people who are not necessarily experienced in the law, the judicial process or in the way in which individual candidates have functioned as lawyers, solicitors or barristers, the kind of practices they have, to have the lay participants constitute a majority of the commission is in the circumstances unnecessary. This body is quite capable of functioning with a minority of lay persons on it. The purpose of this amendment is to amend the Long Title to the Bill to make it clear that the lay participation will be in a minority capacity rather than a majority capacity, as proposed in the legislation as it stands.

I am really just echoing the points made by Senator McDowell.

The Long Title to the Bill refers to making provision for persons of a lay character to be members of the commission. It is clear that the intention of the person who inspired the Bill was for there to be a majority of lay people on the commission. I do not think that is a good idea. The Senate is an elite body to which people are appointed or elected because of their expertise in particular areas. It is very important that the majority of members of a commission of this nature be people with very specific and particular expertise; not just lay members. The amendment seeks to make clear that we do not agree with the ideas of the person who initiated the proposal within the Bill that there should be a lay majority. Instead, by inserting the amendment we would make clear that lay participation should be at a minority level.

I support the amendment, which proposes to insert the words "a minority of" to refer to the provision for persons of a lay character which is contained in the Title. Clearly, this is a crucial amendment because it is to be read in conjunction with the overall approach being taken to the Bill. Amendment No. 7 tabled by the Minister defines a layperson as one who "does not hold, and has never held, judicial office, (b) is not, and never has been, the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor or a law officer, (c) is not, and ... was not, a practising barrister or a practising solicitor". It strikes me that this would copper-fasten the approach that has been put forward in advancing the Bill. It is unfortunate.

Senator Norris was uncharacteristically coy in not naming the person driving the Bill. The Minister for Transport, Tourism and Sport, Deputy Ross, in advancing the Bill and driving it forward is engaging in the sort of unfortunate anti-elitist rhetoric exhibited in Britain by Michael Gove, who stated-----

Hear, hear. Boris Ross.

Boris Johnson, indeed.

No, Boris Ross.

That could catch on.

Order, please. Senators should not refer to people who are not here to defend themselves.

Boris Ross is not here because he does not exist.

He lives in Stepaside.

I was referring to Michael Gove and his now infamous comment that "people in this country have had enough of experts" in the context of the Brexit debate. It is a comment that equally applies to the position being taken by the Government, driven by the Minister, Deputy Ross, in arguing for a lay majority. The difficulty is that we do not have provision for the appointment of hospital consultants, for example, by a lay majority. No one is arguing that a lay majority should appoint hospital consultants. Quite rightly, there is minority lay representation which ensures integrity, even-handedness and a stake for lay persons in those appointments. However, the assessment of the professional experience and expertise of medical candidates should be a matter for medical professionals. That is how we appoint engineers, architects and, indeed, academics. We need to reflect on the central point on the Bill and the need to ensure that there is lay representation but that it is not a majority. That would be the effect of the amendment.

The Labour Party does not impose the reform of judicial appointments and neither do I. Indeed, we welcomed the reforming Bill brought forward by Deputy O'Callaghan. I am sorry that he did not remain in the Public Gallery for long enough to hear it being praised. Clearly, it took a sensible approach to reform of the appointments process for judges and the Labour Party very much welcomed it when it was introduced in the Dáil. It is unfortunate that, instead, we are seeing populist anti-expert rhetoric being employed in driving forward this Bill and, in particular, this aspect of it. I support the amendment. We will be debating this issue further as I and other Senators have tabled amendments which address it. It is also central to some of the amendments tabled by the Minister.

I, too, support the amendment Senator McDowell and I tabled. Senator Bacik's point on expertise is one I thought about quite a lot in the context of this amendment. I frequently deal with a cardiologist and would hate to think that the people who appointed him knew nothing about medicine. I like to know that he is the best in his field and that is why he was appointed as a consultant.

There is something deeply suspicious and almost mean about the drive to have a large number of lay people involved in this massive 17-member commission. Its size is beyond belief. The Minister, Deputy Ross has been pushing for a lay majority for a long time. We probably should have a way to appoint judges which might be perceived to take politics out of it, although we have not been badly served by the Judiciary. However, it makes no sense to require a majority of lay people. Lay people sometimes do not understand the intricacies of the law or how judges arrive at their decisions. One often hears comments ranging from "hang him" to "shoot him" when a judgment is handed down. I refer to the extremely complex corporate cases that have come before the courts. If there is to be a majority of lay people on the commission, will they have to be accountants, actuaries or God knows what other profession? I do not see the necessity of having a large number of lay people. The people from the Law Library and the Law Society are well capable of working through, in an open and transparent way, the very difficult process of appointing judges.

We have addressed the various issues that will arise in the appointment of judges. On Committee Stage, reference was made to judges of an extremely conservative nature and the point made that if there were too many of them on a particular court one might wish to have less conservative people. I can imagine a situation whereby all hell breaks loose because the Chief Justice or somebody else tells the commission that there are many conservative judges and we need less conservative candidates. There would be leaks to newspapers and so on.

The amendment is perfectly reasonable. It makes the best of both worlds. If it is accepted and the Bill is passed, the majority of the commission responsible for the appointment of judges would have expert knowledge and it would be up to them to convince the lay people, rather than having a majority of lay people drawn from God knows where and with God knows what qualifications. I do not believe that what the Minister, Deputy Ross was looking for would meet the needs of society, although it may meet his needs. I would like to think that those appointed to the Bench are experts in their field and were selected by experts. I urge the Minister to accept the amendment.

Acceptance of the amendment would represent a massive U-turn on the part of the Government and that will not happen. A thorough examination of the entire Bill of the type that we have gone through in the Seanad for the past year or more clearly shows the importance of the lay majority throughout the Bill. There is no reference in any section of the Bill to a lay minority. As such, why would the Long Title misrepresent the Bill to such an extent by accepting the amendment?

We have not finished with the Bill. It might be amended.

I am not going to engage in what would be a massive misrepresentation of this Bill, if the Long Title were to describe a minority of the members of the commission as being persons other than members of the Judiciary. I cannot accept it.

I thank the Minister and call Senator McDowell.

To take the Minister's last point first, when we are tendering amendments to this legislation, they have to be coherent. If one is going to propose a minority of lay persons at a later point, and if one is going to propose amendment of the Bill by assiduously removing all the lay majority provisions in it, there is nothing incongruous about having the Long Title of the Bill reflect that state of affairs. The order in which these things are taken provides that this particular provision has to be taken now. It cannot be amended at the very end of the debate on Fifth Stage or whatever.

I remember a famous compromise on barristers' wigs. They were to be prohibited under the terms of a Bill tendered by one of the Minister's predecessors, Nora Owen, but eventually a compromise was reached where the section that said a barrister shall not wear a ceremonial wig of the kind heretofore worn was amended to say a barrister shall not be obliged to wear a ceremonial wig of the kind heretofore worn. Most barristers do not wear one, so that was the end of that. The curious anomaly that arose from all of that was that the acceptance of that amendment at that Stage did not deal with the Long Title of that legislation, which said that one of its purposes was to prohibit the wearing of barristers' wigs. One has to deal with it in the order that the procedure of this House deals with these matters, and we cannot come back to the Long Title of the Bill having looked at the text again. One has to be prospective in the amendments that are being proposed.

Senator Bacik pointed out fairly, I think, that there are virtually no parallels on the appointment of persons on the basis of expertise, where a majority of the people appointing, or having a function in the appointment of any kind, are required to be people who do not share that expertise. There is practically no parallel in any other sphere of life and she pointed to the case of a specialist medical consultant being recommended for appointment to a vacancy in a university teaching hospital and being told that a majority of the people who will make the decision know little or nothing about medicine. One would be very surprised.

It reminds me of the worst excesses of the French Revolution.

To quote Oscar Wilde.

The case for a large judicial appointments commission of the kind proposed, or as the text now stands, has not been made. It is excessively large and unwieldy. No good case has been made for having seven lay people and a chairperson, as envisaged by section 10(1)(j) and (k), constitute a majority of the board, and the number seven is clearly designed simply to outweigh numerically the ex officio people who are considered worthy to hold office as members of the commission by reason of their expertise or the office that they hold.

Although the Minister now states it would be a major U-turn for the Government to abandon the idea of a lay majority, I have never heard a good argument made on the record of the Dáil or in this Chamber for having a lay majority. When I think back on the arguments that have been made about a lay majority, it is that somehow if one had a majority of judges, members of the Irish Human Rights and Equality Commission, practising barristers, practising solicitors, the Attorney General and a minority of lay people on this commission, they would in some sense attempt, consciously or unconsciously, to subvert the common good by making choices that would not otherwise be made, that they would be clannish and cliquish and put people onto the Bench, or attempt to have people put on the Bench, who would not deserve to be made judges. That seems to me to be the only real basis for having a so-called lay majority on the commission, that somehow by making the lay element the majority element, a different type of person will be made a judge. If one considers that proposition, it suggests that an experienced commission comprising a person appointed by the Law Society, a person appointed by the Bar Council, a member of the Irish Human Rights and Equality Commission and a smaller group of lay people is more likely to make inferior recommendations to the Government than otherwise. The logic of that escapes me, and the implausibility of that is apparent when one thinks about it. It is simply implausible that better judges will be appointed simply by outweighing the number of people who know what they are talking about instinctively with people whose only major qualification is that they are less qualified than the others, by reason of their life experience, to have an input into the appointment of judges. On that account, I am worried.

Senator Bacik mentioned the definition the Minister has in amendment No. 7, which we have not yet reached. However, I want to signal now, without being disorderly, I hope, that the change proposed in amendment No. 7, adding in a paragraph (d), is deeply suspicious. It means that among the lay people we could not have, say, a retired judge from the United Kingdom, France, Northern Ireland, Scotland or from anywhere else. Such a person would be disqualified, and by the way, because such a person cannot be appointed under any of the other categories, he or she could never serve on the judicial appointments commission.

We will consider that fully when we come to that amendment.

We will come to it. I am just saying that Senator Bacik mentioned that the Minister has come up with an amendment, but the purpose of the amendment is to say that under no circumstances will a retired foreign judge ever serve on the Irish judicial appointments commission. We will come to it in the fullness of time, and we will debate it thoroughly at that time, but I am just saying that it seems to me----

I cannot preclude it. With respect, while the Senator is referring to it, we are not debating it now and I do not want him to get into it now.

I do not want to get into the detail of it. I want to reserve my right to come back in detail about it. I will not push the matter any further except to say that-----

The Senator is entitled to make an incidental reference to it but he should perhaps leave it at that.

I will leave it at that. I signal in advance my opposition to it.

The Minister says that he is precluded from speaking again. I do not think he is. Can the Leas-Chathaoirleach not call him again?

The Minister is not precluded. Senators may contribute only once other than the proposer.

Exactly. The Minister can speak again.

Senator McDowell is now-----

The Minister can reply to Senator McDowell.

On a point of order, I am precluded from entering into a debate about something that is not before the House, namely amendment No. 7.

The Minister is not precluded from speaking again. Senator McDowell has the floor and he is winding up on amendment No. 2.

I am abiding by the ruling of the Chair.

Abide with me, fast falls the eventide.

On that basis, I will end my reference to that amendment for the time being. The Minister has come in and said that it would be a major U-turn and, therefore, it cannot happen. The Chair told Senator Norris earlier that where reasons are not offered, groupings can take place whether he likes it or not. I am not contesting that ruling at all. The fact that it would be a U-turn for the Government to accept that it may be wrong about a lay majority is not a reason it should not change its mind. If it is asked by a number of different people with different perspectives on this legislation from across the House to reconsider the matter, it should do so without regard to the proposition that this would represent a U-turn. On that basis, I believe that the Long Title of the Act should lay the ground for later amendments to ensure that the lay participation in the judicial appointments commission should be a minority.

Amendment put.
The Seanad divided by electronic means.

I am advised that a Senator voted from the incorrect seat but it does not alter the result.

In order to clarify the confusion engendered by Senator McDowell's incorrect vote and to allow other Members to take part in the division, who may be anxiously waiting outside, chomping at the bit while waiting to get in to exercise their democratic right-----

Is the Senator making a proposal?

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

Amendment put:
The Seanad divided: Tá, 8; Níl, 15.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Norris, David.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.


  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Marshall, Ian.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Domhnaill, Brian.
Tellers: Tá, Senators David Norris and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 3:

In page 7, line 14, after "of" where it firstly occurs to insert "advisory".

I second the amendment.

Amendment put:
The Seanad divided: Tá, 7; Níl, 15.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Norris, David.
  • Wilson, Diarmuid.


  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Marshall, Ian.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • O'Mahony, John.
  • O'Reilly, Joe.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 4:

In page 7, after line 30, to insert the following:

“(3) An order made under subsection (2) shall not have effect unless a resolution approving the order is passed by each House of the Oireachtas within 28 days of the making of the said order.”.

I second the amendment.

The proposal here is to insert a new subsection (3) into the commencement section, that is, section 1, on page 7. The purpose of this amendment is to give this House and the other House a second chance after the next election when, it is hoped, the Government will be free of some of its present influences and when the majority of Members of the Houses will be free to express their real views on this legislation, to consider whether they really want this Bill ever to come into operation at all. I make no bones about this: that is the purpose of the amendment. It is to give both Houses of the Oireachtas the final say as to whether this proposal should come into law.

Normally, a commencement section gives to a Minister the right to commence an Act or a portion of an Act for any particular purpose. It gives to the Minister a discretion to decide when and if it should be commenced and in what parts and for what purposes. It also gives the Minister the right to postpone the repeal of various enactments or provisions of enactments affected by the commencement section. This Bill, however, repeals the Judicial Appointments Advisory Board provisions of earlier legislation. The real question we must ask ourselves is whether, much like the English people in their referendum on Brexit, we should not revisit this at a later stage, when the political circumstances are different.

I strongly believe for a number of reasons that the Bill should be allowed to be reviewed. I wish to put on the record, and I hope the Minister will take this in exactly the spirit in which it is offered, my great admiration for the appointments that have been made to the Bench during the period in which the Minister and the current Attorney General and Government have been in office. They have been good, solid appointments. They have not suffered from the Judicial Appointments Advisory Board procedure. Without being unduly laudatory of people on the Bench before whom one might appear, I believe that this Government has sustained, without any of this legislative arrangement, a very high standard in the appointment of persons to judicial office. Really meritorious people have been appointed. There has been a balance between the types of people appointed. There has been a gender balance among the people appointed. All this has been done by a Government without any assistance at all from a commission.

This provokes the following questions in my mind. Would better appointments have been made if the proposed commission had been in place? Would better people have been put on the Bench if the Government had performed its functions over recent years assisted by a commission of this kind? Not merely is it not proven at all that better appointments would have been made; the likelihood is that the same standard this Government has achieved by operating the existing mechanisms would probably not have been achieved if a majority lay group coming up with different recommendations had been interposed in the whole process.

I challenge the Minister to make the case as to why what is working very well at the moment should not be left alone. One of the reasons I make this challenge is not merely that I believe that the cumbersome and complex procedures envisaged in this Bill will deter people from seeking appointment to judicial office or from making themselves available for appointment to judicial office, but also that the expense and complexity of the procedures must be considered. I ask the House to imagine, for instance, a scenario in which somebody retires from the Supreme Court, somebody from the Court of Appeal takes up the vacant position, and a consequential vacancy occurs in the Court of Appeal, which in all likelihood and in the vast majority of cases will be filled by a judge of the High Court. Under this legislation, even that chain of events could run to six or nine months.

If I am to believe what I read in the papers, the only obstacle, the only fly in the ointment, in recent times has been the delaying campaign fought by one Minister against judicial appointments being made. All I can do is rely on the titbits I see in the newspaper concerning objections, the non-filling of positions and the delays in the filling of positions which are attributed to one member of the Cabinet. Forgetting that aspect for one moment, the delays were inexcusable and should never have been countenanced. The bluff should have been called, but when the Bill comes into being, the process will be much more cumbersome. I notice that the Minister has not tabled amendments to deal with the issue. However, the Bill will delay consequential appointments for a period of three to six months when it is not necessary to do so. I say this because if an appointment is made to the Supreme Court and a competition held for that purpose, one cannot anticipate the outcome and say there will also be a competition to fill a position in the Court of Appeal because that suggests one is prejudging the outcome and saying somebody will move from that court to the Supreme Court. Likewise, one cannot anticipate that there will be a vacancy in the Court of Appeal which would warrant appointing a member of the High Court.

I mentioned this issue previously, but nothing has been done to deal with it. It is inevitable that an appointment process to fill a vacancy in the Supreme Court will take two or three months for the commission to deal with the matter. I am not trying to exaggerate it, but two to three months is a fair amount of time to advertise the position, receive all of and consider the applications and assess the process and for the lay majority to conduct interviews and an examination of the records of people about whom they know nothing in such a circumstance. It would take two to three months to fill a vacancy in the Supreme Court if the commission was to be involved in the process at all. When the decision was made, if it was to involve the promotion of somebody in the Court of Appeal, if we are to follow the rubric of the Bill, the resulting vacancy would have to be advertised. The Minister would have to go hunting a second time for a judge, a barrister or a solicitor who wanted to be appointed to the Court of Appeal. That would process take two or three months to complete. If the Minister was to decide - in all statistical likelihood it would be the case - to appoint a High Court judge to the position, it would take another two or three months in advertising the vacancy. Something that could be done in an afternoon because the Judicial Appointments Advisory Board, JAAB, process does not apply to existing members of the Bench, could take nine months to complete. I cannot understand how any parliament would consciously walk into that trap.

It is for that reason that I really believe - I am just using what I said as one example because I could spend the entire night here if the Chair was to permit it, but he will not - that is one glaring hole in the whole process. It will delay appointments, including consequential appointments to fill consequential vacancies, by a period of six to nine months in the event that there are three movements of judges arising from the filling of one vacancy in the Supreme Court. That is wrong and it could and should have been avoided. Perhaps it will be if the Government decides that the Bill will be impracticable in its operation and simply adopts the summary procedure set out in section 51 which is simply to state it will not go to the commission to fill these appointments and that the following three people are to be appointed this afternoon: X to the Supreme Court, Y to the Court of Appeal and Z from the High Court to the Court of Appeal. As of now that can happen and it is a sensible way to do business. It means that the courts system works efficiently.

My particular objection is combined with my absolute conviction that for a Government which has made well balanced, merit-based appointments without any of this expensive paraphernalia which will cost €500,000 a year, based on the Minister's projections, and involve massive delays, bureaucracy - offices, rent and full-time civil servants to man them - it is completely unnecessary to do this. Since the Minister in all likelihood will not be making a commencement order before the next general election, before there is a new and different parliament and a new Government-----

That is a threat.

No. I am saying to you-----

-----that my observation is not a threat. I am making the very simple point that an intelligent parliament, confronted with the opportunity to say "No" to the Bill, would stick with the current regime which is working very well and to which nobody is objecting and not waste €500,000 to establish this-----

-----quango and delay the process. The aim of amendment No. 4 in my name is simply to give whoever will be in office after the next general election the opportunity to say if this provision was wise in the first place or the result of the Independent Alliance's insistence on its insertion in the Constitution. That is the only argument I am making. We should give the Oireachtas another chance and it is by no means a threat; rather, it is a hope. I do not believe the Minister will be in a position to commence the Bill in the next six to eight months. It simply cannot be done. Perhaps parts of it might be commenced to start the recruitment process if the Minister had a gun to his head, something I do not believe any other Minister would do. Short of that happening, the commission will not be in operation for another 18 months and there will be a general election before that period elapses. A different Government with different people - it may be the case that many of the same people will be in it - would arrive at a very different view as to whether the current system is superior to what is involved in the Bill and not waste €500,000 a year of taxpayers' money in establishing this quango and not tie itself in knots in holding interviews, having short lists and all the rest. I compliment the Minister, absolutely, unequivocally and genuinely, on his record in bringing to the Cabinet good proposals for appointments to the Bench.

He has an outstanding record.

An outstanding-----

Please, Senator Conway. I will afford the Senator an opportunity to comment.

I am agreeing with Senator Conway in making that unruly interjection. The Minister does have an outstanding record. The national interest would be served by amending the Bill to give the Houses of the Oireachtas a veto in deciding whether the legislation should ever be commenced.

My final comment is that I fully acknowledge that in most cases commencement orders are made by way of a statutory instrument which is either not subject to parliamentary review or a vote in both Houses of the Oireachtas, at the very least, to negative it. It would be unusual to provide for a commencement order that would require positive affirmation by the Houses of the Oireachtas.

If this Bill came into operation, it would require positive decisions by the Oireachtas, even for the appointment of lay members of the commission. The Oireachtas will have an opportunity to approve or disapprove the members of the commission. I am making a heartfelt plea to the Minister to give the Houses of the Oireachtas a second chance to affirm his splendid personal record in making high-quality appointments based on merit, with a balance of genders, backgrounds and all the rest. He has improved our Judiciary substantially during his period as Minister. I ask the Minister to give the Members of the Houses of the Oireachtas the opportunity to reconsider whether to continue with the present system rather than wasting an awful lot of money establishing this quango. It will bring no improvement but will require a considerable amount of public expenditure which could be used on things such as home help hours, instead of creating the illusion of apolitical appointments which are neither constitutional nor realistic.

Senator McDowell is right. While this kind of resolution is a little unusual, this legislation calls for such a resolution. The amendment states: "An order made under subsection (2) shall not have effect unless a resolution approving the order is passed by each House of the Oireachtas within 28 days of the making of the said order." The intention behind this, as I understand it, is to guarantee a degree of oversight by both Houses of the Oireachtas because statutory instruments are often passed on the nod. It happens on many days in this Seanad without discussion. This ensures that no such action shall be taken without the supervision and oversight of the Houses. The idea behind the amendment is to make absolutely certain that a ministerial order commencing any aspect of the legislation is subject to the passing of such a resolution by each House. This ensures that the commencement order cannot take effect until it has been affirmed by resolution of both the Dáil and the Seanad. Requiring the passing of a resolution in this way introduces a degree of oversight and supervision from both Houses of the Oireachtas into this situation. That we should be given a role in this process is a good, democratic principle for us to uphold here in Seanad Éireann. It is very important that not only Dáil Éireann but also Seanad Éireann should have a major role in this kind of matter.

I commend Senator McDowell for coming up with a very practical proposal in this amendment. As he and Senator Norris have said, it is an unusual amendment, but this is an unusual Bill, of which we are all very conscious. It seems eminently practical to give the Oireachtas another chance to review an order before it can come into effect. Otherwise it would have an incredibly cumbersome effect on the process of judicial appointment. I am struck by Senator McDowell's commentary on the judges who have been appointed, both recently and since this Government took office in 2016. The quality and calibre of judicial appointments is such that one wonders what this new and more cumbersome process would add. I favour reform and my party supported Deputy O'Callaghan's Bill in the Dáil, but I do not believe this is the appropriate, best or most effective reform possible. I, my party, and many others in this House have significant difficulties with many aspects of the reform proposed by the Minister. This is a good compromise proposal. Even if the Bill is passed before the next election, there would nonetheless be an extra check on its coming into effect, because this amendment would empower the Houses of the Oireachtas to have a say on its commencement. That seems a sensible and practical compromise.

Is Senator Conway anxious to comment on this?

No. I was only agreeing with Senator McDowell's observation on the quality, calibre and talent of the judicial appointments the Minister has made.

I agree with my colleagues. It strikes me that if - God help us - this Bill gets through and is passed in the lifetime of this Government, whoever is in government the next time around may want to revisit it.

The Senator might even be part of the Government himself.

I might, or the Minister might be part of the Opposition that wants to condemn this Bill.

I am standing by it.

Anecdotally, I would say one thing for the Minister.

He is the only member of Fine Gael who has told me that he or she is 100% behind this Bill. That speaks volumes. I admire the Minister's strength and courage in constantly coming here. After the life of this Government, the next Government may have a very different view on this issue. While it is somewhat unusual to have a second look at a Bill, it is only right and proper to do so. The composition of the next Government may be very different. A Senator was once a Minister in a Fine Gael Government led by Garrett FitzGerald. I may be the next Minister for Defence sitting next to the Minister and supporting him.

No more self promotion.

We need to allow for a second look at this Bill in the lifetime of the next Government. I support my colleague and hence, I am a signatory to the amendment.

Seeing as Deputy Flanagan is still the Minister in this Government, I ask him to comment on the amendment.

I thank the Acting Chairman for introducing a measure of reality into this debate, because what we are dealing with here is a breathtaking departure from all precedent. There are no circumstances under which a piece of legislation such as the one we are debating can be dependent upon the future composition of a Government or Parliament. I cannot think of any precedent. It is a fundamental departure from all precedent, practice and procedure of this House and the Lower House. For those reasons, I do not accept the amendment.

The Minister has again provided the short rationale that this is an unprecedented move, which must therefore be rejected. The argument was made earlier that-----

-----any U-turn had to be rejected in principle and by definition. We are in a very peculiar situation. The Taoiseach has said that he favours holding a general election in May 2020. If this Bill passes through this House in the next number of weeks, goes back to Dáil Éireann and is passed by it, and is signed by the President without reference to the Supreme Court, it would be passed only a few weeks before the people of Ireland elect a different Government.

All I am saying is that in those circumstances it makes sense to give what I propose to what will, by definition, be an incoming Government. It will be in office before the Bill is ever commenced. The Minister has to acknowledge that he will not have it up and running before May. That is very clear. He simply cannot do it. It cannot be done. Even if Superman was to get the Bill into operation, he would not have all of the appointments and all of the machinery in place-----

He might. He would if he applied kryptonite.

Even with kryptonite in abundant supply and the Minister wearing his underpants outside his uniform-----

What a vision. I will not be able to sleep tonight thinking of it. How wonderful.

Even if that were to happen, the commission will not be in existence before the next general election.

To infinity and beyond.

I strongly believe the Bill would not have been introduced in its current form were it not for a happenstance, a peculiar obsession on the part of one or two individuals who have had leverage over the Government. That being the case, a new Government will be duty-bound to ask whether the commencement of the legislation will really add anything to the quality of the Judiciary by comparison with the current system. If it were to ask itself what was wrong with what had happened when Deputy Flanagan was Minister for Justice and Equality – nobody knows, but he might be Minister for Foreign Affairs and Trade again at that stage – and state it worked well, it might ask itself whether it wanted to waste time and money in establishing this quango to operate in the way envisaged.

The idea of giving the Houses of Parliament a veto over a statutory instrument is not unprecedented. I will give an example. Under the planning Acts exempted development is achieved by way of a statutory instrument, but because of its far-reaching nature, positive affirmation by the Houses of the Oireachtas is required to alter what is exempted development. The Minister is not just being given the right to proceed, subject to the right of the Houses to intervene to cancel an otherwise self-executing power, to make a statutory instrument or regulation. There are instances where the Houses of the Oireachtas are given not merely the power to veto a regulation made by the Minister but also the right to ensure no regulations can be made unless they are positively in agreement with them. Even within the four corners of the Bill under discussion, the lay people who are to be appointed to the commission may be appointed only by a vote in the Houses of the Oireachtas. If the Oireachtas was to decide not to appoint them, the commission could never come into being. Let us be clear: it is the next Dáil and Seanad that will actually decide whether the Bill will come into operation in its current form or will be amended. Senator Bacik has said she believes in some degree of reform. While I have no problem with some degree of reform of the Judicial Appointments Advisory Board system, I contend that where there is positive will, it works extremely well. It does not work in as cumbersome a way as this legislation will if it is brought into operation.

I am not making a threat but a plea to the Minister to enable the Cabinet procedures that he and his Cabinet colleagues, including the Attorney General and the Taoiseach, have used which require the Minister to consult the Attorney General on judicial appointments proposed by him at the Cabinet. That procedure works well if it is worked by people of good will. It works much more efficiently than what is proposed. Let me give an example. The Minister could not possibly have made some of the appointments made recently if this Bill had been in operation. He recently appointed members of the High Court to the Court of Appeal and within weeks appointed practising barristers and solicitors to fill the resulting vacancies. That could not happen under the proposed legislation unless it was to happen under section 51, or it were to be said the appointments would be made, irrespective of the commission.

I ask the Minister to reflect on what he has done in the past few weeks. Since the start of the new law year, he has appointed six members of the Court of Appeal, four of whom were existing judges, while two were drawn from practising professions. He recently appointed four or five individuals – four at any rate – to fill the vacancies created in the High Court as a consequence. He has made excellent appointments, but that could not have happened under the Bill. The first thing he would have had to have done was advertise the vacancies in the Court of Appeal that he was proposing to fill. That would have taken months. When the Government finally had its short list and to decide in favour or against it which would have resulted in vacancies in the High Court, it would have had to appoint judges to fill them, again using a cumbersome procedure. What was done in a matter of weeks could take six months under this legislation if it were to take effect. It is retrograde that it has not been amended to take account of this.

All I can say is that an amendment of mine that the Minister accepted on Committee Stage to section 51 is the only way out of the mess. It simply involves disregarding the whole process. If there were to be a succession of appointments to the superior courts, the commission would simply be told that it was out of it, that its advice was not needed, that we were quite capable of making a proper decision ourselves and that we proposed to do so, in which case, under section 51, the commission would have no other function. This scenario shows that a wiser Government which was under less pressure would hesitate before commencing the provision and that a wiser Dáil and Seanad would tell the Government not to proceed and instead stick to the current system, which works so well when operated by people of good will.

I am reluctant to prolong the debate, but I want to respond briefly, having regard to the vehemence and determination of Senator McDowell in making his argument. I again remind Senators that the content of the amendment would, in effect, subvert the wish of the Dáil and the Seanad. If it would not do so, it has certainly been designed to circumvent it in a way that would removed the authority of the Seanad. That runs contrary to Standing Orders and the practices and procedures of this and the Lower House.

What any future Government might or might not do is a matter for the composition of the Dáil and Seanad on that occasion. I look forward to being a Member of the next Dáil and to being joined by Deputies Catherine Noone, Martin Conway-----

And Senator Neale Richmond.

-----Gabrielle McFadden and others.


Allow the Minister to make his point.

As one of the others, I am very happy-----

Let that Dáil then decide on its priority legislation. I wish Senator Craughwell well in awaiting the phone call but I do not think it will happen.

With the greatest of respect, the Senator is no Jim Dooge.

I did not want foreign affairs.

The Minister did not interrupt anybody and is about to conclude his point.

I will conclude my point by issuing a direct challenge to Senator McDowell. I challenge him to join us in the next Dáil and then exercise the power he is now trying to impose upon the current Seanad. I ask him to stand in Dublin Bay South and put his name forward for election to the Lower House. He might have the opportunity to sit once again in the seat I occupy. It is unlikely that he will be able to do so within the same spirit or hope of his colleague, Senator Craughwell, but Senator McDowell should rise to that challenge. He will then have an opportunity to lead the charge to amend this legislation at that time, because he readily accepts that it is this time that will be the time for the debate. I also recognise the challenge of having this legislation completed within a preferred timeframe. We are dealing with amendment No. 4 on the first day of the Report Stage debate. In the normal course of events, this legislation would have been enacted a year ago. I am reliant on numbers in the Seanad and the goodwill of Senators, neither of which I have, according to Senator Craughwell. We will put that to the test between now and the conclusion of Report Stage.

I did not say the Minister did not have the votes.

I will not accede to the content of the amendment having regard to the fact that it is obvious to anybody in this House if he or she would care to admit it that this is, at best, a circumvention of the long-standing practice and procedure and the Standing Orders of this House and the Lower House in terms of practice-----

No, it is not. Senator McDowell has shown an existing precedent. The precedent is there.

-----on First, Second, Committee and Report Stages and enactment of the legislation. When I foretell all the Senators who will be in the next Dáil and the next Government-----

The Minister can include me out.

------I am sure it was obvious to Senator Norris that I did leave him out.

Of course, he did because my home is in the Seanad.

Senator Norris will probably be here-----

-----filibustering and frustrating, which is something he does best.

It is my role in life.

I cannot allow Senator McDowell back in.

On a point of order, the Minister made two speeches-----

He is entitled to do so. The proposer may only speak twice and all others may only speak once.

I just wanted to say that I will consider his kind invitation to join him in the Dáil.

That is the headline in tomorrow's edition of The Irish Times.

It is my job to be balanced and ensure that everybody gets fair play in this House.

The Acting Chairman is doing a very good job.

I noticed the Minister only foretold that people who were sitting on his left hand side might become Deputies.

I am happy here.

I would like to mention the potential Deputies Robbie Gallagher and McDowell.

Is the Acting Chairman ruling me out?

Is Senator McDowell pressing the amendment?

Senator Craughwell is reserving his position because he is still available for the Presidency.

He is going to Europe.

I may run in Stepaside.

To quote a famous former Member of the Lower House, if in doubt, leave him. Is Senator McDowell pressing the amendment?

Amendment put.
The Seanad divided by electronic means.

One Member voted twice and I believe Senator Norris has owned up to that.

In order to clarify my voting position, I call for a walk-through vote.

In the interest of transparency.

I thought the Senator owned up to it.

Yes I did, absolutely. Mea culpa. Mea maxima culpa.

Amendment again put:
The Seanad divided: Tá, 8; Níl, 13.

  • Boyhan, Victor.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Norris, David.


  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Ó Donnghaile, Niall.
Tellers: Tá, Senators David Norris and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
Debate adjourned.

When is it proposed to sit again?

Maidin amárach ar 10.30.

The Seanad adjourned at 9.40 p.m. until 10.30 a.m. on Wednesday, 20 November 2019.