Judicial Appointments Commission Bill 2017: Report Stage (Resumed)

I welcome the Minister for Justice and Equality, Deputy Flanagan, back to the House once more. He is very welcome. At the conclusion of business on the previous day the Bill was debated, amendment No. 10 was disposed of, so we will start on amendment No. 11, which is a Government amendment. It was discussed with amendment No. 7.

Government amendment No. 11:
In page 8, line 33, to delete “paragraph (c)” and substitute “paragraphs (c) and (d)”.
Amendment put and declared lost.

Amendment No. 12 in the names of Senators McDowell, Boyhan, Craughwell and O'Donnell arises out of committee proceedings. It has already been discussed with amendment No. 7.

I move amendment No. 12:

In page 8, line 34, to delete “15 years” and substitute “3 years”.

I second the amendment.

Amendment put and declared carried.

Amendment No. 13 is in the names of-----

I seek a quorum or some such thing as this is obviously not what was intended when the House resumed.

I accept that. We are now dealing with amendment No. 13.

No. Amendment No. 12.

No. Amendment No. 12 was disposed of. We are now dealing with amendment No. 13.

That is my amendment.

Correct. Before I call Senator Bacik, I must make the point that amendment No. 13-----

I thought this had been discussed.

There are groupings. This amendment has not been discussed. Amendments Nos. 13, 49 to 53, inclusive, and 59 are related, amendment No. 50 is a physical alternative to amendment No. 49 and amendment No. 51 is a physical alternative to amendment No. 50. Therefore, amendments Nos. 13, 49 to 53, inclusive, and 59 may be discussed together by agreement. Is that agreed? Agreed.

No. I propose to separate the amendments in the group. Specifically, I would like amendment No. 13 to be dealt with separately. We have had this discussion in respect of a number of other amendments that were grouped. Amendment No. 13 is particularly important because it relates to the definitions of "practising barrister" and "practising solicitor". It is an amendment that I do not believe is closely connected to the others. We can deal with the others when we come to them.

The Senator is asking for amendment No. 13 to be separated from the rest of the group.

Is it agreed that amendment No. 13 be separated from the rest of the group?

I will reserve my position in respect of the other amendments, which we will not reach until later.

Is it agreed that amendment No. 13 be separated from the rest of the group?

No. It is not agreed.

Either there is consensus to separate amendment No. 13 or there is not. As I do not have consensus to separate it, the amendment will have to remain part of the group.

The House can decide the matter. It can agree to divide. I am calling a vote on it.

The advice I have is that amendments, which have been grouped, cannot be separated.

No. There has always been a practice here in this regard but I do not have the Standing Orders of the House in front of me.

I accept the point the Senator is making and she has been here a lot longer than I.

I have been here for some time.

The Senator was very young when she started but she is still here a good while.

I am trying to facilitate debate.

I am also trying to facilitate all the Members here and even those who are not. Generally speaking, in my time in the Chair, if agreement for a grouping was not accepted, we separated the amendments.

The same standards-----

As Chair, I am ruling that amendment No. 13 be separated from the rest of the group.

I thank the Acting Chair.

That is not agreed.

I thank the Acting Chairman. They are very different amendments.

I attempted on a number of occasions to make a submission on this but the Acting Chairman has ruled on it.

I will certainly have to let the Minister make his point.

I merely make the point that there are reasons for grouping amendments. Grouping of a series of amendments is not something that is done on an ad hoc basis. We have had a history of grouping amendments in the context of this legislation, which has given rise to a certain confusion on the part of Senators. I merely make the point that if a grouping has been put forward, that has been done for a sound and good reason. That is why I would encourage Senators to deal with the issue as proposed.

It is fair to state that it is not a political decision as to what is or is not grouped. The matter is decided by the Bills Office.

If Senator Conway would allow me to conclude, I will let him come in at that point if he wishes.

I am supporting the Minister’s proposition.

The Minister was making the same point that I am more or less making.

The Acting Chair has ruled.

Generally speaking, the Bills Office issues a directive. That makes sense from its perspective. It does not do it in any party-political way. I was facilitating the Members who said they were not happy with amendment No. 13 being part of the group. There is a grouping and, as Acting Chair, I rule that we will deal with them all together, which means that people can speak to amendments Nos. 13, 49 to 53, inclusive, and 59.

Sorry, I understood that the Acting Chair made a ruling to the opposite effect a moment ago when he stated that amendment No. 13 would be dealt with separately. The other amendments-----

I suggested that initially but it is unfortunate that it is not a matter for the House. A grouping has been put forward.

In all my time in this House, and as the Acting Chair just pointed out I have been here a while, I do not recall a Minister intervening to make a proposal after the Chair has ruled. This is a matter for the House, not the Minister. It is not a political proposition.

To be fair, the Minister was not being political.

I never suggested-----

Excuse me, I did not interrupt the Minister.

-----it was a matter for Minister.

I do not know why the Minister felt he needed to intervene on this.

On a point of order-----

No. Senator Bacik is speaking.

I did not interrupt Senator Conway.

I never spoke so the Senator never had the opportunity to interrupt me.

Senator Conway should allow Senator Bacik to conclude.

No. A bit of respect is what is needed now.

It is probably not a point of order on the Senator's part but I have to hear it before I can say that.

It is a point of order. This is a disgrace.

The Chair heard the Minister and I do not believe he had any function in making a proposal on the grouping. All he said was that he understood groupings were generally made for a good reason. He did not speak to the substance of this grouping.

He expressed a view and he is entitled to do that.

May I express my view then?

As the proposer of amendment No. 13 and as somebody who has a view on the substance of these amendments, I would say that they are not suitable for grouping. I will wait until the Acting Chair is free to hear what I have to say.

Yes. The Senator should go ahead.

Let us call a vote.

Amendment No. 13, which is my amendment, deals with the provisions on page 8 relating to the definitions of "practising barrister" and "practising solicitor". I have quite a bit to say on the amendment. For some reason, it has been grouped with amendments Nos. 49 to 53, inclusive, and amendment No. 59. If one looks to those amendments, one sees where they come in. I will wait until the Acting Chair is ready-----

I am listening to the Senator.

Amendments Nos. 49 to 53, inclusive, are very different. They come in much later in the text of the Bill and do not relate to the definitions of "practising solicitor" and "practising barrister". I have scrutinised them and I do not see why they are grouped. Amendment No. 13 is a discrete proposal that deals with a particular definition. I do not see the reason for grouping it with the others. There may well be reasons that the others have been grouped. One of them refers to practising barristers. The others refer to the basis for qualification for appointment. For example, amendment No. 49 refers to the Legal Services Regulation Act. It is a Government amendment. It seems to be a technical amendment and relates to a particular Act. It has nothing to do with amendment No. 13.

The Senator has made very good points. Does anybody else want to come in? Senators McDowell and Conway have indicated.

I am being reasonable. The others may------

In the interests of facilitating debate and trying to be helpful to all Members of the House and that includes the Government as much as anybody else, I will make the ruling, as Acting Chair, that amendment No. 13 is being decoupled from the rest of the grouping. We can revisit the grouping-----

That is not agreed.

It is not a matter for the House, it is a matter for me. I am saying that, in the interests of facilitating-----

It is not agreed.

We could discuss whether we should group these amendments for the next half hour or hour and we could have dealt with amendment No. 13 in the meantime. I rule that we deal with amendment No. 13 separately from the rest of the group. We will deal with whether amendments Nos. 49 to 53, inclusive, and amendment No. 59 should be grouped when we reach them. We will now discuss amendment No. 13. Does Senator Bacik wish to speak to the substance of the amendment?

I move amendment No. 13:

In page 8, after line 37, to insert the following:

“(3) In this Act and in the Act of 1961—

(a) “practising barrister” has the same meaning as it has in section 2 of the Legal Services Regulation Act 2015;

(b) “practising solicitor” has the same meaning as it has in section 2 of the Legal Services Regulation Act 2015.”.

I thank the Acting Chair. That was a sensible ruling.

This amendment relates to section 2, which deals with definitions.

Is there a seconder for the amendment?

I second the amendment.

The amendment proposes the insertion of a new subsection (3) into section 2. It states: "In this Act and in the Act of 1961 ... "practising barrister"” has the same meaning that it has in section 2 of the Legal Services Regulation Act 2015 ... [and] “practising solicitor” has the same meaning that it has in section 2 of the Legal Services Regulation Act 2015." This amendment refers to the definition of particular terms. The reason we put forward this amendment is that the Bill uses the term "practising barrister" but, as far as we can see, it does not define what constitutes a practising barrister. The Legal Services Regulation Act 2015 contains the most up-to-date thinking on this and includes a comprehensive definition of "practising barrister" in order to bring all practitioners within an appropriate regulatory framework. Colleagues will recall that the previous Seanad engaged in a lengthy debate on that legislation previously. Section 2(1) of the 2015 Act provides that "practising barrister" means a person who is a qualified barrister and provides and provides, or holds himself or herself out as providing, legal services as a barrister which applies whether or not a fee is charged, whether or not services are provided under a contract of service or a contract for services, and whether or not he or she described himself or herself as a barrister or otherwise uses one of the titles of “barrister”, “barrister-at-law” or "counsel”.

That is a very clear definition in section 2(1) of the 2015 Act. On the other hand, the Minister may have a much narrower definition in mind. Prior to the 2015 Act, one might well have said that a practising barrister was one who practised at the Bar and the definition was different and perhaps more global but less precise. If one had used the phrase "practise at the Bar" before 2015, it would have meant holding oneself out as being willing to advise a client on the instructions of a solicitor, in other words, through a solicitor, and to represent a client in litigation as an advocate before the court, again through a solicitor, although there are limited direct access schemes in place now as well.

One way or the other, it is clear that since 2015, the law has provided for at least two definitions of what it means to be a practising barrister. We have the 2015 definition in section 2(1), as I outlined, which is the more precise and detailed one, and also the older definition of someone practising at the Bar. The latter, which one could say was derived from common law, was endorsed by the Supreme Court in 1981 in the case of State (Walshe) v. Murphy [1981] Irish Reports 275. In that case, the Supreme Court held that a person appointed as a judge had been invalidly appointed because he had not in fact been a practising barrister. That case alone demonstrated, if it were necessary, that this is not just an academic, theoretical or hypothetical question and that having a definition within the legislation has a very specific purpose. It seems sensible to all the Senators who proposed this amendment that there should be a clear and unambiguous linkage between the definitions in this Bill and the definition in the 2015 Act, which is the most recent definition and the only one clearly set out in statute, so as to avoid any ambiguity and to ensure that the previously understood common law definition would not be the one that would apply in any interpretation or application of the Bill.

This is what the Minister may regard as a constructive amendment. It is seeking to draw a direct linkage with existing legislation, the Legal Services Regulation Act 2015, which had widespread support. It seems to be sensible to avoid any ambiguity as to what is meant by "practising barrister". I have searched the Bill for another definition and I do not believe there is one. This is a sensible amendment and I recommend it to the House.

I echo what Senator Bacik has said. I know the Minister may be suspicious of this but this is an effort to be constructive and to have the legislation make sense. If we had said, prior to the Chairman's ruling a few moments ago, that this was something that had to be considered in conjunction with amendments Nos. 51 and 52, the Minister would have noted that there is a subtle difference. Amendments Nos. 51 and 52 define the term "practising barrister" for the purpose of being appointed a judge but only for that purpose, whereas the term "practising barrister" is also used in the definition term to exclude people from the category of laypersons, which is not covered in the ministerial amendments. Senator Bacik is correct in that in the case of State (Walshe) v. Murphy, which concerned the validity of a public servant's appointment as a district judge when the public servant in question was not in practice at the time or was not in any substantial way in practice as a barrister at the time of his appointment, the decision laid down what the term "practising barrister" means in law. In that context, the term "practising barrister" in law was what the Supreme Court held it to be. Senator Bacik's amendment has the effect of introducing throughout the entire Bill, including in the definition of a layperson which we have been dealing with, a clear indication of who is or is not a practising barrister.

There was a time when whether one was a practising barrister largely meant but did not exclusively mean whether one was a member of the Law Library subject to the disciplinary rules of the Bar Council. The new Legal Services Regulation Act introduces a different category of people who have nothing to do with the Bar Council and who may not be members of the Law Library and who are subject to professional regulation by the King’s Inns. Some of them may practise in partnership with solicitors, while some of them may practise on their own and carry out functions which are effectively legal advisory in nature and do not involve them appearing in court at the Bar. That is the point that Senator Bacik was making so eloquently. The amendment makes great sense in that the other references to practising barrister and the redefinition are in amendments to other statutes about eligibility to be appointed a judge, whereas this amendment applies to the definition of practising barrister insofar as it refers to somebody who cannot be viewed as a layperson.

I will go back to the effect of the amendment that we have just made to the Bill to reduce the period of 15 years down to three years. That is highly important. It means that people who have ceased to be a practising barrister or practising solicitor, after a quarantine period - as if that was necessary - of three years, will be eligible to be considered lay people. Given that under the Legal Services Regulation Act, every barrister and solicitor must register with the authority, it is going to be very clear that one is either a practising barrister or one is not a practising barrister because one will be either registered or not registered. There will be no lack of clarity if Senator Bacik's amendment is accepted. It makes eminent sense to cover all the bases on this and say that "practising barrister" means what it means now as a matter of law, namely, that one can be a practising barrister who has nothing to do with the Bar Council and does not practice under that rubric.

This is not an alternative to the Minister's subsequent amendments because they propose to amend prior statutes on who can or cannot be appointed judges. Those amendments are specific to specific sections in prior Acts, whereas Senator Bacik's amendment is for the purpose of this Bill. If enacted, it will have a simple effect that if there is any argument as to whether someone is or is not a practising barrister, that person will either be registered with the authority or not. That will be the basis upon which people will be determined as being laypersons and or non-laypersons for the purposes of the legislation. On another important point, this will also have the effect that the 15-year quarantine period will effectively be measured by when a person ceases to be a registered practitioner. That makes eminent sense.

I ask the Minister to consider this amendment. He may be suspicious of anything that comes from anybody other than a Senator on his own benches but this amendment makes eminent sense and will improve the Bill. Dare I say it but even the Minister for Transport, Tourism and Sport, Deputy Ross, should be happy with this amendment.

I am not accepting the amendment precisely because of the reasons put forward by Senator McDowell.

I am sorry the Minister has dismissed the argument with such a brief turn of phrase. Senator McDowell put the case for it very strongly and, as he said, there are serious implications for the definitions of barrister and solicitor in this legislation. The Minister's amendments Nos. 51 and 52, which are now decoupled from amendment No. 13, only refer to the definition of practising barrister in respect of a particular section. That is not the same as my amendment, which is a far more general application. It seeks to import the definition from the 2015 Act to this legislation and the Act of 1961-----

On a point of order, I am precluded from discussing the content of those amendments because of the decoupling.

I do not believe anybody is precluding anyone else from discussing anything. I have just referred to amendments Nos. 51 and 52 as it is important to say why they are different.

We cannot discuss them because of the ruling of the Chair.

Without speaking for the Chair-----

We are discussing amendment No. 13 on its own.

I am sure anybody can refer to other amendments.

We are distinguishing between them.

Senator McDowell has just referred to his own amendment No. 12, which relates to quarantine and reducing the period-----

We are on amendment No. 13 now. There was a ruling by the Chair and I respect that.

That is right.

Frequently as legislation passes through this House, people refer to an amendment or part of a Bill that will be discussed in future. It is not uncommon and what Senator Bacik is doing is not wrong.

Senator Bacik is in possession and we will come to those other amendments in due course.

I will finish the point. The amendment I propose, which is amendment No. 13, seeks to import a definition of "practising barrister" and "practising solicitor" from the 2015 Act into both this legislation and also the Courts (Supplemental Provisions) Act 1961. It has a far more general impact than any later amendments the Minister may be proposing that refer just to the definition of "practising barrister" for the purpose of a particular section. This amendment seeks to have a more general effect. It is a very important point because, if it were adopted, it overrides the pre-existing common law definition of "practising barrister".

Senator McDowell has pointed out that the 2015 Act made a significant change to our understanding of what is a practising barrister. The other important point is that my amendment also refers to a definition for "practising solicitor", which is defined nowhere else in the legislation or any of the Minister's amendments. It is a sensible and constructive amendment that seeks to provide for a clear connection between other existing legislation, which is specifically the 2015 Act. It seems sensible to do this and avoid any ambiguity in the definitions of what are practising barristers or solicitors.

Given the extremely strict parameters that will be placed on those eligible to seek judicial appointment, it is very important we have precise wording in place for the definition of practising barrister or solicitor, particularly with the quarantine period that we have already discussed in respect of other amendments. It makes it all the more important that we have a very clear definition and that we use the most up-to-date definition clearly set out in statute.

Question put.
The Seanad 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 Seanad divided: Tá, 10; Níl, 17.

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Leyden, Terry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • O'Donnell, Marie-Louise.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Ó Domhnaill, Brian.
Tellers: Tá, Senators Gerard P. Craughwell and Ivana Bacik; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 14:

In page 9, to delete lines 1 to 9 and substitute the following:

“References to recommending names: provision for their construction

3. In this Act, a reference to recommending the name of a person to the Minister is a reference to the making, under this Act, of a recommendation to the Minister that the person be appointed to a judicial office specified in the recommendation.”.

I second the amendment.

The effect of the amendment is to amend section 3 by deleting the second paragraph (b) from the section. Paragraph (b)------

Does the Minister wish to say something?

On a point of order, do I understand the House correctly that we are taking amendment No. 14 on its own?

On what basis has that been decided?

On the basis of a decision already taken before I took the Chair.

It was always on its own. I have just been advised that the amendment was always to be discussed on its own and was never grouped. Is that not correct? Is the House happy that amendment No. 14 is to be discussed on its own?

I fully understand what the Minister is driving at, but it was never grouped with other amendments.

Amendment No. 14 is to amend section 3 by deleting paragraph (b) from the section of the Bill as it currently stands. Paragraph (b) states: "In this Act - (b) a reference to recommending the name of a person to the Government under section 44 is a reference to the making, under that section, of a recommendation to the Government that the person be appointed to a judicial office specified in the recommendation." To understand the significance of this amendment one must look at the Long Title to the Bill which states:

An Act to establish a body to be known as [...] the Judicial Appointments Commission; to provide for the making, by that body, of recommendations in respect of appointments to certain judicial offices; to make provision for persons of a lay character, as well as judges and legal practitioners, to be members of that body; to amend the qualification requirements for appointment to judicial office; [and this is the important part] 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 remit of the "foregoing body" is the remit of the proposed judicial appointments commission.

When the Bill was under consideration in Dáil Éireann, perhaps on Committee Stage or Report Stage, the Members of that House, in their wisdom, decided that the arrangements the Minister was proposing in respect of appointments to certain senior positions, namely, those of Chief Justice, President of the Court of Appeal or President of the High Court, be taken away from the judicial appointments commission and be subject, where vacancies arise, to a different procedure whereby a committee of senior judges and the Attorney General would be established in order to make a recommendation to the Government. The Select Committee on Justice and Equality decided that this was wrong and that the separate channel for promotion to one of the offices I mentioned should be overseen by the Government, on the recommendation of the commission, and substituted the commission, which the Minister had proposed, for the committee. I am completely opposed to that for various reasons. The choice of Chief Justice is not a matter for the judicial appointments commission in any circumstance. The Chief Justice is not merely an officeholder of great eminence in the legal system, he or she is the President of the Supreme Court, the highest constitutional court in the land. The decision as to who should or should not be Chief Justice is vested in the Government under the Constitution, and the choice of persons to be Chief Justice is one for the Government alone.

The amendment made in Dáil Éireann to section 44 is in direct contradiction to the Long Title and has the effect of giving the function of recommending a person to be appointed Chief Justice to the commission that will oversee all other judicial appointments. The same function was handed to the commission in respect of the presidencies of the Court of the Appeal and of the High Court, both of which are constitutional offices, the choice of people to serve in which falls within the remit of the Government alone under the Constitution. Why should those offices be distinguished from the other judicial positions to which the Bill applies insofar as the involvement, in certain cases, of the judicial appointments commission is required? It could be argued that the positions are greatly determinative of the character of those courts. After all, the Chief Justice ultimately assigns cases to divisional courts of the Supreme Court, while the President of the Court of Appeal and the President of the High Court do the same for their respective courts. More importantly, an office such as the Presidency of the High Court carries with it the obligation and power to make important decisions of which most people will be unaware. For example, the President of the High Court is the effective enforcer of discipline on those in the profession of solicitor. Ultimately - I am glad to say in a tiny number of cases - he or she has to take the unpleasant tasks of disqualifying people from being solicitors, of imposing penalties or of upholding the decisions of the Solicitors Disciplinary Tribunal. In addition, the President of the High Court has a function in respect of wards of court. He or she does not simply organise the business of the High Court, which is done by means of practice directions and so on, he or she is also an ex officio member of the rules committee and of many bodies that have a profound effect on not merely the administration of adversarial justice between parties in courts but also on that of non-adversarial justice. I refer, for example, to the case of wards of court, whereby the President of the High Court takes personal responsibility, as the law stands, for the protection of people of unsound mind or minority in respect of their estates. That role does not simply apply to the protection of people in those contexts but also to taking people into wardship for their own protection. Where, for religious purposes, parents decide that they will deny their child a blood transfusion, the President of the High Court's jurisdiction to take the child into wardship and to direct that certain steps be taken to save the child's life is very important.

The three offices I outlined carry such functions with them in one way or another but they are not simply the functions of ordinary judges of the High Court, the Court of Appeal or the Supreme Court. It seems that the decision as to who should hold the offices is envisaged by the Constitution to be taken by the Executive - the Government - having considered the matter and received the advice of the Minister for Justice and Equality and the Attorney General. It is for the Government to make up its mind on that issue. More importantly, it is not for members of the Judiciary to apply for approval or recommendation to appointment of those positions to a commission comprising a majority of laypersons.

Section 44, as amended by Dáil Éireann, would have the effect of attempting to rob the Government of the unfettered discretion as to whom it appoints to the offices and would substitute a system whereby it would have to subject the various candidates to some kind of vetting process by the commission and seek a shortlist from the latter. As the Bill stands, the Government would have to consider the shortlist submitted in the order of preference of the commission. It is the case that, under the Constitution, the Government cannot be restrained by any recommendation of the commission. We will soon come to that matter in discussion of one of the Minister's amendments and I do not wish to trespass on that debate. Nevertheless, section 44 is a repugnant provision in its present form. On this Stage, even though it remains part of the Bill, it is entirely reasonable to remove the reference to section 44 because of the amendments made to it by the Dáil.

I should say for completeness that it is my strongly held position, as the Minister knows well, that no sitting judge of the superior courts should be obliged to submit his or her name to the commission for appointment to any other position in those courts. I have made the point on a number of occasions and will not repeat it at length now, but in this context it is important. I do not want to be seen to agree with the principle of section 44 at all, but if, unfortunately, it is to stand part of the Bill, it should certainly not have any role for the commission. Even in that context, the Minister's original formulation, as put before Dáil Éireann and rejected by that Chamber, should be reinstated. Every member of the High Court and the Court of Appeal, as a matter of statute law, is entitled to sit on the Court of Appeal and the Supreme Court, respectively, on the invitation of the President of the Court of Appeal or the Chief Justice.

It is not a question of having to decide who is suitable or capable of functioning as a judge in those courts. It is an important constitutional point that the law already provides that every member of the superior courts, High Court and Court of Appeal is already eligible to serve as an ordinary judge in the Supreme Court when invited to do so. Every member of the High Court is entitled by statute to function as a Court of Appeal judge when invited to do so. The idea of asking those people, if a vacancy in one of those courts arises, to submit themselves for interview and evaluation by a group of people who are, in the majority, lay people, who are inexpert in what is at issue, almost by definition, is wrong and repugnant to the Constitution. It is an invasion of the judicial independence of each of those persons who is, on appointment, eligible to serve in either of those courts as an ordinary member at the invitation of the president of either court.

The reason that section 3 should be repealed is that it provides for the operation of section 44. Section 44, as amended by Dáil Éireann, is deeply repugnant to the principles of constitutional law in this country and deeply subversive of the role of the Government in choosing the presidents of those courts. On that account I move the amendment.

I merely advert to the hyperbole in the language used by Senator McDowell on the basis that he would have read the suite of amendments that were furnished when this Bill was listed for debate and he would surely have seen amendment No. 68. He would also have acknowledged what I said repeatedly in the context of Committee Stage on the restoration of the senior committee. He will also be aware that the recommendations are made to the Government and not to the Minister. Therefore, I am not prepared to accept the amendment and will await deliberation at a later stage on amendment No. 68 which, to my mind, meets the concerns as put forward by Senator McDowell.

On the constitutional question, judicial appointments are made by the President acting on the advice of the Government in accordance with Articles 13.9 and 35.1 of the Constitution. The removal of this subsection as stated ensures that there is no ambiguity on this. It is the prerogative of the Government and not a new quango who it recommends to the President for appointment as it has done on almost 61 occasions during the lifetime of this Government. I ask the Minister to reconsider this point and go along with us on this issue.

I am conscious that the Minister proposes in a later amendment to reinstate the original text of section 44. I am well aware of that but I am dealing with it as it stands now, and as it stands now it is repugnant. Even if the Minister does have a majority in this House for the reinstatement of section 44 to correspond roughly to the format it was in before he brought it before Dáil Éireann, there is no guarantee whatever that if he brings it back to that august Chamber he will persuade that majority of people who took it out and handed this function back to the commission that the Minister, who is a member of a Government without a majority in Dáil Éireann, will be able to guide section 44 through in the form that he would like. The only place I can make objection to that is here in this House. The only stage at which I can make a valid objection is at the very first opportunity, although that does not preclude me from objecting later to the Minister's amendment and suggesting amendments to it. If I was to say that section 3(b) was to remain in place, at the moment I would be approbating section 44 as it stands. This would be the last opportunity that this House would have. The Bill, when it gets back to the Dáil, may be amended in precisely the same way as the Minister failed to prevent it from being amended on the last occasion. For that reason, it is not hyperbole on my part to anticipate that the Dáil might do exactly the same thing to the Minister's text as it did on the last occasion. I am trying to protect the public, the Constitution and the role of the Government from that unfortunate possibility.

Is the amendment being pressed?

Amendment put.
The Seanad 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 Seanad divided: Tá, 8; Níl, 19.

  • Bacik, Ivana.
  • Craughwell, Gerard P.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • O'Donnell, Marie-Louise.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • Richmond, Neale.
Tellers: Tá, Senators Gerard P. Craughwell and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

Amendments Nos. 15 and 16 arise out of Committee Stage proceedings. They are logical alternatives and may be discussed together by agreement. Is that agreed? Agreed. I understand that Senator McDowell has permission from Senator Norris to move this amendment.

I do have permission.

Will the amendment be seconded?

No, it will not.

Senator McDowell may proceed.

I move amendment No. 15:

In page 9, line 11, after “shall,” to insert “not exceed €300,000 in any calendar year and shall”

The purpose of the amendment is to amend the relevant section providing for the costs of the commission in order to put a cap of €300,000 in any calendar year on the expenditure of the commission. I do not want to anticipate further amendments but I will say that-----

I am reluctant to interfere but I must. We have reached the allotted time of 90 minutes.

Debate adjourned.

When is it proposed to sit again?

Maidin amárach ar 10.30.

The Seanad adjourned at 6.50 p.m. until 10.30 a.m. on Wednesday, 11 December 2019.