Judicial Appointments Commission Bill 2017: Report Stage (Resumed) and Final Stage

Debate resumed on amendment No. 15:
In page 9, line 11, after "shall," to insert "not exceed €300,000 in any calendar year and shall".
-(Senator Michael McDowell)

I welcome the Minister, Deputy Flanagan, to the House once again. I remind Senators that the Report Stage debate on this Bill is due to be brought to a conclusion at 5.30 p.m., if not previously concluded, by the putting of one question from the Chair which shall, in relation to amendments, include only those set down or accepted by the Government. When the debate adjourned yesterday, we were on amendment No. 15.

I had hardly started speaking before we had to adjourn yesterday. This amendment, which is in the name of Senator Norris, seeks to limit the amount of expenditure on the new quango that this Bill is seeking to create. The Judicial Appointments Advisory Board costs virtually nothing to operate. The Minister has estimated that the proposed judicial appointments commission will cost approximately €500,000 a year to operate. That might sound like petty cash to some people, but it will come to €5 million over ten years. Senators can multiply as much as they like into the future. We can be reasonably sure that the amount it will cost to run the commission will increase with the rate of inflation. The real question that Senator Norris and I want to underline relates to what will happen if this quango is actually created. I emphasise that we are totally opposed to it. When the Government falls in the near future, its successor will be confronted with the question of whether it would be a good idea to make a commencement order for this Act, to leave it on the shelf or - even better - to repeal it. The extra costs involved in an entirely redundant, useless and counterproductive body corporate being established should be appreciated. The waste of taxpayers' money involved should be noted. I am speaking for myself, and presumably somewhat for Senator Norris, when I say that the sum of money mentioned in this amendment represents a plea for economy. If this amendment is rejected by the Minister because he considers that his estimate of €500,000 is preferable as the likely cost of this quango, so be it, except to say that it is a gross waste of taxpayers' money.

The purpose of this amendment is to revise section 4 of the Bill to impose a monetary limitation on the "expenses incurred by the Minister in the administration of this Act". It is routine in legislation of this kind to have an expense provision, the effect of which is to guarantee the supply of funding for the administration of the Bill without imposing any cap or limitation. In these days of fiscal prudence, it seems incongruous to persist with the practice of establishing bodies that can operate without any financial constraints. That is why I am proposing a limit of €300,000 in this case.

I am happy to abide by the time-honoured and oft-tested wording that is included in section 4 of the Bill, which places a particular emphasis on the fact that expenses are to be sanctioned and monitored, if appropriate, by the Minister for Public Expenditure and Reform.

Do the Senators wish to press the amendment?

While I do not intend to press the amendment, I would like to make it clear that the Minister is keeping the door open to the possibility that this new quango will cost €500,000 a year. That is the figure he gave us when we asked about the likely annual cost of the proposed new commission.

Is the amendment being withdrawn?

I will press it to a voice vote.

Amendment put and declared lost.

As amendment No. 15 has not been agreed, amendment No. 16 may be moved.

I move amendment No. 16:

In page 9, line 13, after "Oireachtas" to insert ", provided that they shall not exceed €250,000 in any year".

Amendment put and declared lost.

As amendments Nos. 17 to 20, inclusive, are related, and amendments Nos. 18 to 20, inclusive, are physical alternatives to amendment No. 17, amendments Nos. 17 to 20, inclusive, may be discussed together.

I move amendment No. 17:

In page 9, to delete lines 14 to 23.

The purpose of this amendment is to delete section 5, which provides for a review of the operation of this legislation to be carried out after five years.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 18:

In page 9, line 16, to delete "5 years" and substitute "3 years".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 19:

In page 9, line 18, to delete “not later than 12 months after the expiration of the said 5 years” and substitute “not later than 3 years and six months”.

I second the amendment.

Is Senator McDowell pressing the amendment?

Amendment put and declared lost.
Amendment No. 20 not moved.

Amendments Nos. 21 and 27 to 29, inclusive, are related and amendments No. 27 to 29, inclusive, are logical alternatives to amendment No. 21. Therefore, amendments Nos. 21 and 27 to 29, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 21:

In page 9, between lines 26 and 27, to insert the following:

“Obligation to uphold judicial independence

7. (1) The Public Appointments Service and the Commission and their members—

(a) shall, in performing their functions under and in connection with this Act, uphold judicial independence,

(b) shall not, in connection with the performance of those functions, take advice or directions from any person otherwise than in accordance with this Act,

(c) shall not perform any of those functions with a view to influencing the interpretation of the law or the Constitution by the courts.

(2) Without prejudice to the generality of subsection (1)

(a) a person shall not apply for appointment as a lay member of the Commission with a view to influencing the interpretation of the law or the Constitution by the courts,

(b) a person who applies for appointment as a lay member of the Commission—

(i) shall not provide in connection with that application any information relating to the person’s political opinions or religious or philosophical beliefs, and

(ii) shall not be asked, and if asked shall not be required to answer, any question relating to—

(I) the person’s political opinions or religious or philosophical beliefs, or

(II) the merits of any change in the interpretation of the law or the Constitution by the courts,

(c) a person who applies for appointment to a judicial office—

(i) shall not provide in connection with that application any information relating to the person’s political opinions or religious or philosophical beliefs, and

(ii) shall not be asked, and if asked shall not be required to answer, any question relating to—

(I) the person’s political opinions or religious or philosophical beliefs, or

(II) the merits of any change in the interpretation of the law or the Constitution by the courts.”.

Amendment No. 21 is my amendment. It is an important one although at this point it seems a rather pointless debate given what happened this morning. It is an important amendment concerning the insertion of a new section referring to an obligation to uphold judicial independence. It arose out of committee proceedings where we had a debate on this issue. In our rush to depoliticise the judicial appointments process, the Labour Party Senators along with Senator Norris put this amendment forward because we believe it is wrong that we are being asked to put a very significant part of the process into the hands of the same group who end up acting in other cases, in the Public Appointments Service and so on. We need to look at accountability, to ensure our judicial appointments process is subject to this obligation to uphold independence, and to remember in this legislation the important constitutional status of the Judiciary.

I will not read through the text of the proposed new section but it requires the Public Appointments Service and the commission and its members to adhere to this obligation to uphold judicial independence. It is a very particular overarching set of principles that we are asking would be adhered to by those who would now, under this legislation, be tasked with performing the judicial appointments service.

Amendments Nos. 21 and 27 to 29, inclusive, are being taken together by agreement. Does the Senator wish to speak to amendments to amendments Nos. 27 to 29, inclusive, also?

Amendment No. 21 is my only amendment in that grouping.

I will speak to amendment No. 21. I expect the Minister to accept this amendment. It would be outrageous if he did not. If he turns his face against this amendment, it means he thinks the Public Appointments Service and the commission and their members should use their influence with regard to the interpretation of the law of the Constitution by the courts. How could the Minister possibly stand over something as outrageous and barbarous as that? This is supposed to secure independence. It is supposed to keep the appointment of the senior members of Judiciary secure from political interference. This is doing that. If the Minister does not accept this amendment, he is saying that members of the Public Appointments Service and the commission and their members are perfectly entitled to attempt to influence the interpretation of the law. I cannot think of anything more contemptible. I second the amendment.

I am aware I cannot move the amendments in my name.

The Senator cannot move them at this stage, but he can speak to amendments Nos. 21 and 27 to 29, inclusive.

In respect of these amendments, it is my view that aspects of this legislation are unconstitutional. One of the particular aspects that I believe is unconstitutional is that this Bill seems to require members of the superior courts who have functions in respect of interpreting the law, and every judge has to do it to some extent, and constitutional interpretation functions as well to be judged and perhaps interviewed by reference to something to do with their suitability to be made judges. If this amendment and the other amendments are all rejected, as Senator Norris and Bacik have said, effectively, it is saying the Minister in charge of this legislation believes it will be legitimate for members of the commission and members of the Public Appointments Service, when looking at people who are volunteering to be made members of the commission and members of the public who are considering applying to be appointed to the commission, via the Public Appointments Service, to pursue agendas relating to the judicial function.

I said to the Minister in respect of one amendment yesterday that I believe this is entirely constructive but if he chooses to reject this amendment and the other amendments that are being discussed together, it underlines the fundamental question this legislation has never addressed. What are these laypeople to ask of candidates who currently sit on the Bench as to why they should or should not be appointed to the Court of Appeal or to the Supreme Court? What questions can they be asked? I challenge the Fine Gael Members and the Minister to come up with any sensible question that could be put to any of these judges other than a question relating to the performance of their judicial function that could in any way influence the commission in determining who to recommend to the Government.

I do not want to draw this out too long. If these amendments are rejected by the Minister, and I believe they will be, the clear implication is that members of the Judiciary will not be immunised, which Senator Bacik's amendment seeks to do, from interrogation on certain aspects of their judicial function. If the Government believes that members of the Judiciary should not be immunised from interrogation on these matters, I am of the view that the purpose of this process of requiring sitting judges of the superior courts to apply to this commission is unconstitutional.

For various reasons, I believe this is a fundamental flaw in this Bill. That members of the serving Judiciary should in some sense be assessed as to their suitability for - and I would put the following words in inverted commas - promotion to the Court of Appeal and to the Supreme Court by a group of people who are laypeople for the purpose of recommending them, I believe is unconstitutional. It is an interference with their intellectual and judicial independence that this should be permissible. No useful function can be served by asking serving members of the Judiciary to engage in some kind of beauty parade process before a judicial appointments commission to fill vacancies in the superior courts. If, as I pointed out yesterday, every single one of them is entitled to serve when invited on the Court of Appeal and the High Court, then all I can say is this underlines the constitutional frailty of this legislation. I would be happy to invite the President in the fullness of time, whenever we get to that point, to refer this issue to the Supreme Court as to whether it is permissible under the Constitution to require serving judges to submit to a valuation of this kind by a group of people who are permitted under the law to ask them questions of the kind these amendments are seeking to exclude.

This is ground that has been well covered in both Houses, but in particular in this House during the past year and a half.

The amendment in which the Senator is seeking to make provision to the effect that the Public Appointment Service and the commission to uphold judicial independence provides for certain restrictions on the motivation of persons seeking to be appointed as lay members of the commission and on the information that may be provided by or asked of a person who may wish to be considered for or to apply for judicial office. Going back to 2013, the public consultation process - this is not often recalled by Senators in the context of the current debate - addressed issues relating to eligibility, diversity and the adequacy or otherwise of the existing structures that are in place in respect of judicial appointments. I invite Senators to agree fully that there is an adequate reflection of this right throughout the legislation.

In the context of the critically important area of the Bill that deals with the establishment or development of procedures and requirements in respect of appointments, namely, Part 8, I invite Senators to examine section 55(6). In the context of the preparation of the statement referred to in section 55(1)(b), section 55(6) states that the procedures committee shall have regard to "the independence required of holders of judicial office as respects the exercise by them of their functions as holders of such office". I want again to acknowledge the independence of the Public Appointments Service. I am surprised when Senator Norris speaks about politicisation of the process.

Rant, rant. This is as vague as the Minister's answer.

Senators McDowell and Bacik may think otherwise - I suspect Senator Norris does also - but I am firmly of the view that Senator Norris has not been in a position to provide any evidence to this House about the independence or the questioning of the independence of bodies such as the Public Appointments Service-----

How could I when it is not in existence yet?

-----which, I have no doubt, is the most appropriate body to carry out the function of the selection of the members of the commission. The Public Appointments Service delivers a most excellent and professional service.

I reject the constitutional issues as raised by Senator McDowell. Great care was taken at all times in the course of the preparation and development of this Bill, including consultation with a number of Attorneys General. That has led us to where we are now. I am not minded to accept the Senator's amendment for the reasons that I have just put forward and in the context of the matters we have discussed at length in the House in the course of the past 18 months.

Does Senator Bacik wish to respond?

I am disappointed but not surprised by the Minister's response. As with amendments I sought to put forward last night, amendment No. 21 is constructive. It is very similar to amendments Nos. 27 to 29, inclusive, tabled by Senator McDowell. These amendments put forward what should be a non-controversial statement of principle upon which we should all be able to agree. Of course, members of the Public Appointments Service and the judicial appointments commission should uphold judicial independence in performing their functions. They should not, however, perform any of their functions for the purposes of seeking to influence the interpretation of the law or the Constitution by the courts. That is the very danger to which Senator McDowell referred. If a provision like this is not included in the Bill, then the suggestion the Senator made in respect of constitutional frailty will prove to be correct.

The Minister's approach to this is very similar to the way in which this Bill has been handled by the Government all along. Serious and constructive proposals have been put forward by many Opposition Senators on Committee Stage and now on Report Stage. Instead of engaging with us in a constructive way outside the Chamber through meetings - as stated previously, this route was followed with different Ministers in respect of other legislation - the approach taken has been not to brook either any compromise or any amendment.

I am also open to meeting. Ask Senator Norris. I will meet him anywhere.

As stated on previous occasions, it is unfortunate that there appears to be no compromise possible in respect of this Bill. There would not have been any need for a guillotine - nor would it have been necessary to choose that option - had the Government been a little bit more open to compromise on amendments of this nature that are constructive that are constructive. The Bill will have to go back to the Dáil in any event. The Minister could be more disposed to accepting amendments such as this, which are sensible and which seek to support or facilitate a constitutional finding in respect of this legislation. Otherwise, it may well be the case that the President will see fit to refer the Bill under Article 26.

Senator McDowell is quite right. If there is a suggestion that persons who apply for appointments as lay members of the commission may do so in order to in some way influence the interpretation of the law or the Constitution by the courts, or if they, in the course of the appointment process ask people who apply for positions to provide information about political opinions or religious or philosophical beliefs, then will be very problematic. That is very danger that amendment No. 21 seeks to guard against. As stated, the latter is a constructive and sensible amendment which would help to uphold what is proposed in the Bill. It is unfortunate that the Minister does not see fit to accept it or to engage with us on a compromise approach that might encompass the issues with which I am seeking to deal in amendment No. 21 and which Senator McDowell seeks to deal with in his later amendments that have been grouped together. Instead, we are being faced with a guillotine in just over an hour.

What we need is a revolution where they can fall under the guillotine themselves. Is the Minister's neck getting itchy?

Amendment put:
The Seanad divided: Tá, 17; Níl, 21.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Davitt, Aidan.
  • Freeman, Joan.
  • Hackett, Pippa.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • Norris, David.
  • O'Donnell, Marie-Louise.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Feighan, Frank.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Ivana Bacik and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony..
Amendment declared lost.

I welcome Brigeen Fitzmaurice, who is a first cousin of Senator Leyden, and her husband, Gerry. I hope they enjoy their day.

As amendments Nos. 22 and 23 are related, and amendment No. 23 is a physical alternative to amendment No. 22, they may be discussed together.

I move amendment No. 22:

In page 9, to delete lines 32 to 34, and in page 10, to delete lines 1 to 8 and substitute the following:

"(2) For the purposes of the section regard shall not be had to the characteristics of persons already appointed to hold judicial office, and the merit of a person shall be assessed wholly independently of those characteristics.

(3) A decision to recommend shall not discriminate against any person on the grounds of gender, race, sexual orientation or social background (including membership of the travelling community).

(4) A decision to recommend may to the extent considered necessary by the Commission have regard to the need that the judiciary should include persons with a proficiency in both of the State’s official languages.".

This amendment, which is my name and the names of other Senators, seeks to insert some clarity into the legislation in respect of what appointment on merit means. We want to emphasise that somebody being meritorious, or not being meritorious, does not depend on who has or has not been appointed before him or her. In other words, a person's merits should not be considered by reference to the characteristics of somebody else. If a person with a background in the Traveller community is seeking to be appointed, his or her merits should not be looked at in the context of somebody from a Traveller background already being on the Bench. This should be dealt with-----

It sounds a bit unlikely.

Nothing is unlikely in this debate.

It applies to other things too. It applies to gender.

It applies to Senator Norris.

It applies to all aspects of diversity. Nobody should be excluded from being regarded as meritorious merely by reason of the fact that diversity has already been achieved in respect of his or her particular background. That is all I am saying. I presume the Minister will not accept the amendment.

I support the amendment. The principle of non-discrimination arises in this context. When I withdrew amendments that I had tabled on Committee Stage, I did so specifically in order to be able to propose them again on Report Stage. I refer to amendments Nos. 62, 65, 69 and 71, which are further down the list. Unfortunately, it looks like these important amendments will not be reached because of the guillotine. Like the amendment before the House, my four amendments relate to the principle that there should be gender diversity and gender balance in the composition of the Judiciary. I am sorry that we will not get to them. I support amendment No. 22.

I also support the amendment. It would be completely wrong to discriminate against anybody on the basis of gender, sexual orientation or any of these other things. Amendment No. 23 in my name proposes the deletion of lines 32 to 34 on page 9. That is quite important because it would get rid of the entire provision. I am seeking the deletion of section 7(2), which sets out a number of matters that must be considered when a decision is being made on whether to recommend a person for appointment to the Judiciary. Section 7(2)(a) refers to the need to achieve gender balance, section 7(2)(b) refers to the need to reflect "the diversity within the population as a whole" and section 7(2)(c) refers to the need for judges with "a proficiency in the Irish language". All of these aspirations are honourable, and nobody could possibly have anything against them, but they should not be factors which determine whether a person is suitable for appointment as a member of the Judiciary. If the Minister accepts my amendment, section 7(1), which provides that "A decision to recommend, under this Act, a person for appointment to judicial office shall be based on merit" only, will remain in the Bill. That is the position I hold. It should only be based on merit. To my mind, merit should be the sole basis on which a candidate is assessed as being suitable for recommendation for appointment. We want the best judge. His or her sexual orientation or membership of the Traveller community should be completely irrelevant.

I am afraid I cannot hold with the Senators because I do not see any reason to limit the assessment of merit in any way, other than to provide for certain policy objectives. Even though we have had approximately 125 hours of debate over the past year and a half, as we will all recall, I have to say that sufficient consideration may not have been given to section 7, especially by comparison with the consideration given to other sections. Section 7, which is in Part 2, provides for recommendations to be based on merit. The objectives of Senators are adequately met in this section. I am not sure of the extent to which we need to detail the issues further. That is why I do not subscribe to an amendment that seeks to replace section 7(2) of the Bill. If we look at the earlier debate, we will see that section 7(2), as currently drafted, contains three important elements. I refer to the gender balance, diversity and Irish language requirements. I think these areas are adequately covered in the Bill as it stands. The objectives of section 7 should be looked at in the context of a later section that deals with such important particulars as education, professional qualifications, experience and character, which the commission, as of right, will put forward along with the recommendation. I do not believe we should enter into a reclassification now. Senator McDowell has been making a considerable issue of particular strands of information that may come into play depending on the category of person applying, such as a sitting or serving judge.

Again, we can see specific reference to the matters that will be taken into consideration and which will form part of any recommendation including competence, probity, character and even temperament. We had a lengthy discussion on the matter of merit on an earlier Stage and I firmly believe that merit stands alone. I also believe that an assessment of merit will take into account sufficiently the matters that must be satisfied under the Bill. For that reason, we should not limit in any way the assessment of merit. Under section 7, as drafted, we have done that to very good effect. Subsection (2) refers to the objectives that membership of the Judiciary should comprise equal numbers of men and women, should "to the extent feasible and practicable" reflect diversity within the population as a whole and should include, "consistent with the written statement most recently provided under section 55(7) to the Procedures Committee concerning the needs of the users of the courts", persons with proficiency in the Irish language. In the context of yesterday's launch by the Government of a new initiative on the Irish language, we need to ensure proficiency as far as the Judiciary is concerned, particularly in certain parts of the country where fluency in the Irish language on the part of judges is essential. That will form part of the merit-based assessment under the section. At the risk of labouring the point, I am not going to accept the amendment.

I will not push the matter any further.

Amendment, by leave, withdrawn.

I move amendment No. 23:

In page 9, to delete lines 32 to 34, and in page 10, to delete lines 1 to 8.

This amendment has already been discussed.

Yes, but I have the right to reply as the proposer of the amendment.

I am advised that this amendment has already been discussed.

Yes but as the proposer of the amendment, under Standing Orders I have the right to reply. I am getting rather tired of these Sir Humphrey-esque interjections on amendments.

Senator Norris-----

The Minister has actually said on the record-----

Senator, the Chair interprets the rules of the House-----

-----that he firmly believes that "merit stands alone"-----

The amendment has been seconded, Senator.

He said that he firmly believes that merit stands alone-----

Senator Norris is out of order.

I am not out of order.

This amendment has already been discussed in the House.

I am perfectly in order.

No, the Senator is not in order.

According to Standing Orders, the proposer of an amendment is entitled to speak a second time.

No. Amendments Nos. 22 and 23 were discussed-----

I am tired, as I said, of these Sir Humphrey-esque innovations that are introduced-----

The Senator must resume his seat. He is out of order.

I will conclude by saying that the Minister said the following very clearly, on the record:-----

Senator, please respect the Chair.

"I firmly believe that merit stands alone" but-----

I am putting the question.

-----it does not because of the Minister's refusal.

Amendment put and declared lost
Government amendment No.24:
In page 10, between lines 8 and 9, to insert the following:
“PART 3
POWER OF GOVERNMENT TO GIVE ADVICE TO PRESIDENT UNAFFECTED
Power of Government to give advice to President unaffected
8. Nothing in this Act shall be construed as limiting the power of the Government with respect to the advice that the Government give to the President regarding the appointment by the President, under Article 35 of the Constitution, of a person to be a judge.”.

Amendments Nos. 24, 25, 63 and 66 are related and will be discussed together.

This amendment is important in the context of certain warnings from Senators over the course of the last 125 hours as to the constitutionality or otherwise of the legislation. Amendment No. 24 underlines the constitutional position in the form of a general saver to provide that the constitutional function of Government in the appointment of judges is firmly upheld. The amendment provides that nothing in this Act shall be construed as "limiting the power of the Government" with respect to the advice that it gives to the President regarding the appointment by the President, under Article 35 of the Constitution, of a person to be a judge. The amendment replaces two specific savers that had been included in the recommendations sections of the Bill.

I favour a more general saver, having listened to Senators. I was accused by Senator Norris of not listening but he has now left the Chamber. Having listened to Senators and having taken into consideration concerns raised by them which were focused on a combination of various provisions of the Bill, some of which were mentioned earlier this afternoon, I believe it is important that a general saver be included in the legislation. This belief is based on a number of factors. There was considerable debate on confidentiality provisions, on the question of canvassing or otherwise and on a no-canvassing rule, which Senators said called into question, at the very least, the genuine execution of the constitutional function to appoint judges and the necessary aspect of choice that was required.

I discussed the matter with the Attorney General. I have said previously that the Attorney General can discuss the recommended names, as appropriate, at Cabinet subject to the confidentiality requirements. In other words, the role of the Attorney General as a member of the commission continues to apply in the context of consideration by the Government of the names as recommended. I do not see any negative implications for the exercise of the Government's function, nor do I see any adverse consequences for the exercise by the Government of its constitutional power to advise the President on appointments. Indeed, in recent months Senators tabled an amendment relating to the Government's function under Article 35 of the Constitution. I said I would carefully consider the matter ahead of Report Stage and have done so. I table the current amendment in that context. It is tabled in response to arguments made by Senators. Again, I reject an earlier comment from Senator Bacik before she left the Chamber-----

Sorry, she is here. She has merely changed her position-----

I have moved to my voting seat.

She has a good attendance record, to be fair.

On a point of order-----

I very much respect the fact that the Senator is here.

I have been here throughout most of what the Government tells us is only 99 hours of debate.

The Senator moved seat, which she is entitled to do.

This is my voting seat. I moved here because votes were being called. Senator Marie-Louise O'Donnell is in her voting seat. I moved to make way for her. On a point of order-----

Please allow the Minister, without interruption.

I accept the Senator taking issue with my comment as to whether she is here or not-----

I sat quietly while-----

I cannot have references being made to the presence or otherwise of Members. The Minister has withdrawn that remark.

I thank the Leas-Chathaoirleach but the Minister also made reference to Senator Norris having left the Chamber.

I should have objected to that because-----

He is back now-----

-----it is bad practice, as the Leas-Chathaoirleach has just said.

We cannot have that; I agree.

Senator Norris is well able to look after himself.

Ruination once again.

Allow the Minister to speak without interruption please.

I apologise to Senator Bacik. During her last contribution she was sitting directly in my eye line. I did not see her moving. I would have been required to turn to my left to do so but I am not really noted for my left turns.

The Minister is always welcome on the left.

No more of the Minister's spin.

I have been accused, as late as this afternoon, of not listening and failing to compromise. This constitutional saver is as a direct result of me giving due and careful consideration to the points raised by Senators in the course of the 125 hours. I believe that this was sought. I expect that all Senators will agree to accept it.

I call Senator Bacik.

I think Senator McDowell indicated first.

My apologies, Senator McDowell. I was giving the lady a preference on that occasion.

I want to underline what we are doing here. This ministerial amendment is largely to the same effect, though slightly grammatical inferior, to the amendment in my name and Senator Craughwell's. It uses the term "Government give" as if Government is a plural, when in fact the Government is a single institution, and it should be "gives". Nonetheless, we will not be petty about that. The purpose of the Minister's amendment is fascinating. On Committee Stage, I repeatedly made the point that it was unconstitutional to attempt to prevent the Government from appointing any eligible person to judicial office under this Bill. That is the constitutional law. Although I proposed a section in more or less the same terms on Committee Stage, and the Minister said he would consider the constitutional points I made, he nonetheless voted it down. Now he is back saying that, having reflected on the matter, presumably with the Attorney General's advice, he has come to the conclusion that it is requisite and needed as an amendment to safeguard the constitutionality of this legislation. That is fine. The Minister said that he expects that everybody will agree with him.

There are two issues to be put firmly on the record. The section that he now proposes must be seen in the context of section 51, which was also inserted and accepted by the him on Committee Stage. Section 51 states: "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." The Government is, therefore, entitled to appoint anybody serving in the superior courts to that vacancy and to ignore the commission completely. Section 51(2) goes on to state that where the Government proposes to do that, "the notice published in Iris Oifigiúil in accordance with section 50 shall state solely that the person appointed was a serving judge of the relevant court at the time of his or her appointment".

If those two provisions are combined, it is clear that the Attorney General's advice and the state of the Bill, as amended by this, means that the Government of the day is perfectly entitled to appoint any eligible person to be a judge of the superior courts, and the Government's power to do so is in no way affected by this legislation. One then has to ask why we are establishing a quango, which will cost €500,000 a year to run, when the Government will have the power to say, "Thank you very much but on this occasion we are not bothering with the whole process." That is the gravamen of the Minister's amendment and what the Attorney General has advised him to include. Taken with section 51, it means that this entire process is largely redundant and that serving members of the Judiciary in particular, or any other eligible person, can be appointed by the Government of the day simply by doing so and the judicial appointments commission can be totally bypassed. The reason that I tabled an amendment on Committee Stage similar to this was to point out the futility and redundancy of the legislation.

I want to make another point in favour of the Minister. He has, since occupying his position, made very good appointments to the superior courts, including "promotional" appointments of serving judges within those courts. He has done that with the existing JAAB. He has appointed solicitors and barristers to be judges of excellent quality without the need for this ridiculous quango we are establishing, which, over ten years, will cost at least €5 million. At the same time, once the Bill becomes law in the shape that is emerging on foot of the guillotine motion this afternoon, if the Dáil does not amend it significantly when it arrives back there, any Government is free to say that it is making an appointment and is not involving the commission at all. What is this all about?

Stepaside Garda station.

Why were we kept here for so long in making these points and challenging the very foundations of this legislation? The answer is that one man's vanity had to be appeased. He is the man who said he would end cronyism in the appointment of judges. The Minister must now accept, with the two provisions that I have drawn attention to, that the Bill does not have the effect that the Minister, Deputy Ross, has claimed for it of ending political input or decisions by the Government to appoint who it wishes to judicial office. That is what we have achieved after a year and a half or however long it has been in this House. It is a climbdown and a surrender. The Minister said that he does not engage in left turns. He has engaged in a massive U-turn to try to save this Bill from a charge of unconstitutionality. He is running up the white flag and saying that we are wasting €500,000 on this commission and establishing a quango, and that we will have an immensely complicated process for appointing judges. I remind him that one of the consequences of this is that if there is a vacancy in the Supreme Court and somebody goes to it from the Court of Appeal, and then somebody goes to the Court of Appeal from the High Court, the process could take at least six to nine months if done in accordance with this legislation instead of being done in an afternoon, which the Minister and his Government have done very successfully heretofore. I ask the Minister to take a bow. After all of this nonsense of establishing a quango to satisfy the Minister, Deputy Ross, we are back at square one and any Government can appoint any eligible lawyer to judicial office, which is what this section means.

Because of the Constitution.

That is what the Constitution requires. The Minister, Deputy Ross's, insistence that this quango be established and his foot-stamping refusal to appoint judges until it was established and his blackmailing-----

No, that did not happen.

Sorry, I will not use the word "blackmailing". His coercion of the Government to force the Minister to come in here for a year and a half to defend the indefensible is now exposed for what it is. This is a monumental U-turn. This is an acknowledgement of futility and redundancy. It means that any future Government can appoint whom it wishes without any regard to the judicial appointments commission if it so chooses. It also, in conjunction with section 51, makes it very clear that the Government is given express licence to just inform the commission that it is making appointments within the superior courts and does not require its assistance at all.

For what have we been spending our time here? I telescoped the discussion on earlier amendments in order to have time to contribute on this amendment. We now realise the futility, redundancy and political fraudulence of what the Minister, Deputy Ross, told the people he was going to do-----

The Senator is referring to a person who is not present in the House.

It is not the role of the Minister, Deputy Flanagan, to police proceedings in the Seanad.

Senator McDowell without interruption.

I referred to the "political fraudulence" - which is a legitimate term to use - of suggesting there was cronyism in the appointments made by the Cabinet without this legislation and that the Minister, Deputy Ross, was going to end political involvement in the appointment of judges. The Government, which is referred to in amendment No. 24, is composed of elected politicians acting as a single collective body. Politicians elected to the Government constitute the Executive under the Constitution and have the role making these constitutional choices. This legislation does not alter that position one jot.

I endorse the remarks of Senator McDowell. The Minister, Deputy Flanagan, referred to amendment No. 24 as a "general saver". It is more of a general embarrassment. It is a U-turn, a concession and an admission that the points Senators have been making regarding the constitutional frailties of the legislation are valid. I am aware that the Minister is not on the left, as he made clear from his failure to look to his left to see where I am sitting. If he was a fan of science fiction, he might be aware that there is a principle or practice in many such films, particularly Star Wars, of which I am a major fan, of there being a general override button which can automatically override everything else.

Do not press the button.

We are not going to press the button.

The Death Star and all of Darth Vader's plans can be overridden by pressing a general override button. Amendment No. 24 is the general override button, the general saver that undermines and drives a coach and four through all of the principles we spent 99 hours debating on Committee Stage according to Government officials. After all of the time wasting, we have an amendment that, presumably, horrifies the Minister, Deputy Ross, because it undermines the entire elaborate dog's dinner of a structure which sets up this cumbersome and unwieldy process for judicial appointment.

The amendment is very badly drafted. Its language is jarring. I compared the phrase, "the Government may give to the President" with the language used elsewhere in the Bill, such as in section 51(1) which states, "the Government decides to advise the President", section 51(2) which states, "Where the Government has decided" and section 55 which refers to the submission of statements, "to the Commission for its approval". The drafting of the amendment is significantly flawed. I presume the Minister, Deputy Flanagan, will remedy it in the Dáil. The Bill that came to the Seanad from the Dáil was flawed and internally contradictory and the Bill that will go from us to the Dáil on foot of the guillotine that will fall in 15 minutes is grammatically and constitutionally flawed in spite of the general embarrassment or general saver which the Minister is seeking to introduce.

I note the Minister's impeccable mathematics. This morning, the Leader tried to tell us that 109 hours have been spent discussing the Bill when, in fact, at least 125 hours have been spent on it and probably more. I have been accused by many Members of the House of being a lackey to my colleague, Senator McDowell. I took my own legal advice on the Bill and on Second Stage I stated that it was constitutionally flawed. I believed it was flawed from day one and at every opportunity I have raised the issue of the Constitution and the right of the Government to nominate or recommend candidates to the President for appointment as judges. The Government has done an excellent job on the 61 appointments it has made in the lifetime of the current Dáil.

I wish to compliment the Minister, Deputy Flanagan. He is a man of honour and a man of his word. It is clear that the tail that is wagging the dog had its own way and, as a man of honour, the Minister decided to stand over the commitment given to the tail. As I warned him on Second Stage and at every opportunity since, this flawed and ridiculous Bill will go down as the Bill of the Minister, Deputy Flanagan, rather than that of the Minister, Deputy Ross. Stepaside Garda station will go down as the greatest achievement of the Minister, Deputy Ross, but this will be the Bill of the Minister, Deputy Flanagan. The next Government will have no alternative but to rip the Bill up and throw it away because it is wrong. In fairness to the Minister, Deputy Flanagan, he has listened to my learned friends, Senators McDowell and Bacik, who are far better on constitutional issues than I am, and he has seen the flaw in the Bill and included the "Dougal, do not press the red button" amendment. The red button is there and Dougal will be able to press it and shred the Bill.

In light of the workload of the Minister, Deputy Flanagan, it is terribly sad that he has had to spend 125 hours in the Seanad defending this nonsense for which no member of Fine Gael to whom I have spoken has any interest or support. Fine Gael Senators have openly stated the Bill is nonsense and that they have no time for it, as have many Fine Gael Deputies.

Anonymous sources.

They are not anonymous.

Anonymous sources.

This will be a textbook case for students of political science for years to come on how a Government can be manipulated by one man. There are probably half a dozen PhDs to be earned from the Bill. The Leader will get his way this evening and discussion of the Bill will be guillotined. I am very sorry that the name of the Minister, Deputy Flanagan, is associated with it. He is much better than that.

I congratulate the Minister on amendment No. 24. I am delighted we have reached it. As Senator McDowell stated, we collapsed the argument on earlier amendments in order to ensure it was reached before the guillotine. The whole intention of the Minister, Deputy Ross, was to limit the power of the Government in terms of the advice it gives to the President on the appointment of judges. Amendment No. 24 states, "Nothing in this Act shall be construed as limiting the power of the Government". To the Minister, Deputy Flanagan, I say "well done" and "congratulations". I am old enough to remember his wonderful late father and the way he went through County Laois with a placard on the front of his car which stated "Here comes Oliver" and another on the back stating "There goes Oliver". Well, here comes Charlie and there goes Charlie. He has done a damn good job. He has filleted the Bill of the Minister, Deputy Ross. He has destroyed it. He has left it in shreds. I would love to see the face of the Minister, Deputy Ross, when this banana skin lands under his right foot, or under his right hoof, I should say.

That is out of order.

Tony Williams is watching.

It is wonderful. The amendment completely undermines the commission and makes it totally redundant. It can be told to bugger off and have its tea.

I ask the Senator to mind his language.

My language is perfectly good. I constrain myself.

Going by the Senator's performance earlier today, I am not sure that is true.

The oven is ready for Boris Johnson. The Minister should get judicial appointments done. Let us have judicial appointments that are judicial appointments. Get judicial appointments done. Let us see the Minister, Deputy Ross, done. The Government has given itself the right to appoint any eligible person.

There are ten minutes until the guillotine. The Senator should use it wisely.

I cannot hear Senator Conway. He should interrupt me more loudly.

There is ten minutes before the guillotine. It should be used wisely.

Senators, please.

I will use it very wisely by sitting down and allowing my colleagues to gloat in the discomfiture of the Minister, Deputy Ross, and the wonderful, Houdini-like escape of the Government from this farrago of nonsense. We have done a damn good job in this House. Yes, we held up the Bill for 125 hours or whatever it was. Although some Senators have claimed they were not filibustering, I sure as hell was. I did so with great intelligence.

Would the Senator agree that the good ship Ross has sunk before its launch?

It is holed below the waterline.

The good ship Ross has sunk without trace. I recall saying in this House on one occasion, about the same Minister, that he has shown great courage but has made an unusual choice, in that most rats jump off sinking ships and he jumped onto one.

Does the Minister wish to respond?

The Minister should try to respond to that.

I merely wish to acknowledge the support of Senators for this important amendment. We have had something between 99 and 125 hours of debate and I do not think anyone would dispute it if we call it 110 hours of debate.

The Minister said it was 125 hours of debate.

It did not seem that long when it was happening.

The Minister without interruption, please.

It is an important amendment and I reiterate something that I said on numerous occasions in the context of this Bill moving through the House. I reject the allegations of cronyism on the part of anybody in the matter of the appointments of members of the Judiciary.

The Minister for Tourism, Transport and Sport also said that.

He is the crony Minister.

I firmly state that whether through the JAAB process, or otherwise, to my knowledge there has not been any undue interference in the process as has been alleged by people outside this House. Senator McDowell has spoken about the importance of preserving the independence of the process to the extent that this new commission might be entirely bypassed. That might well be the case. Under our Constitution, it is absolutely essential that the independence of appointments is fully subscribed to and recognised. We have had a JAAB process for in excess of 20 years and I do not believe, in the context of any appointments of members to the Bar or the profession of solicitor, that there was any case in which the Government disregarded the advice of the JAAB. I acknowledge, as other Senators will also do, including Senator McDowell, a former Minister for Justice and a former occupier of the pivotal office of Attorney General, that the JAAB process was never bypassed.

It most certainly was.

It was not bypassed in respect of sitting judges.

It was bypassed in respect of the man who is now the Chief Justice.

That is different. I was referring to sitting judges. Over the course of my time in office and that of the Government, I do not believe that the process was disregarded in the manner that the Senator has implied.

What about the former Attorney General whom the Government appointed to the Court of Appeal?

The constitutional-----

JAAB had nothing to do with that appointment.

That was an office-holding position.

It had nothing to do with JAAB.

Order, please. We will have the Minister without interruption.

It is important that, in response to what Senators said, and, indeed, to ensure clarity, that the amendment in the form of the constitutional saver is essential to underscore and clarify, particularly in the context of certain misrepresentations that were made here during the debate, the independence of the Government in respect of its recommendations for nominations to the President. That is what we are doing with this amendment and I am pleased to record the universal support of Senators for that. I thank Senators for agreeing with me.

Will the Minister, when he brings the Bill back to the Dáil, change the word "have" to "has" to make it correct?

I am happy to look at it.

Amendment agreed to.
Amendment No. 25 not moved.

I move amendment No. 26:

In page 10, to delete line 18.

I second the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 27:

In page 10, between lines 18 and 19, to insert the following:

Independence of the Judicial Function

10. (1) The Public Appointments Service and the Commission and their respective members—

(a) shall, in performing their functions under and in connection with this Act, uphold judicial independence,

(b) shall not, in connection with the performance of those functions, take advice or directions from any person otherwise than in accordance with this Act,

(c) shall not perform any of those functions with a view to influencing the interpretation of the law or the Constitution by the courts.”.

I second the amendment.

Does Senator wish to press the amendment?

Amendment put:
The Seanad divided: Tá, 22; Níl, 24.

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Davitt, Aidan.
  • Freeman, Joan.
  • Gallagher, Robbie.
  • Hackett, Pippa.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • Norris, David.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Marie-Louise.

Níl

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

As it is now passed 5.30 p.m. I am required to put the following question in accordance with the order of the Seanad of this day.

Do not put the question.

Order. The question is, "That the Government amendments undisposed of are hereby made to the Bill, Fourth Stage is hereby completed, the Bill, as amended, is hereby received for final consideration and the Bill is hereby passed."

Question put:
The Seanad divided: Tá, 25; Níl, 23.

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Dolan, John.
  • Feighan, Frank.
  • Gavan, Paul.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • Ó Céidigh, Pádraig.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Richmond, Neale.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Davitt, Aidan.
  • Freeman, Joan.
  • Gallagher, Robbie.
  • Hackett, Pippa.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Murnane O'Connor, Jennifer.
  • Nash, Gerald.
  • Norris, David.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Marie-Louise.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Michael McDowell and Ivana Bacik.
Question declared carried.