We are resuming on amendment No. 19 in the name of Senator Barry Ward. I will read the groupings again for the benefit of Senators. I will call on the Minister to speak, but if any other Senator wishes to speak, he or she should indicate a wish to do so. Amendments Nos. 19 to 28, inclusive, are related. Amendment No. 26 is consequential on amendment No. 19. Amendments Nos. 19 to 28, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
Judicial Appointments Commission Bill 2022: Committee Stage (Resumed)
SECTION 13
Debate resumed on amendment No. 19:
In page 13, to delete lines 17 to 23 and substitute the following:
"(4) The matters referred to in subsection (3) are matters connected with—
(a) the courts and the operation of the justice system both in the State and in places outside the State,
(b) the importance of protection of human rights and equality,
(c) business, finance or public service, and
(d) corporate governance and human resources (including making, or recommending persons for, senior appointments).".
- (Senator Barry Ward)
I apologise for not being here last night. I appreciate the opportunity to resume the debate where we left it last week. I thank Senator Ward for tabling amendment No. 19, which seeks to amend section 13. The Senator's amendment provides for similar matters concerning lay expertise and knowledge in an amended subsection (4). This version simply provides for a reordering of the four criteria. The way they were set out was for no particular reason. I can appreciate why Senator Ward has put them in a particular order, but I am reluctant to accept the change given the potential effect of having to send the Bill back to the Lower House. There is no weight placed on the criterion in subsection 4(a) merely because it is the first on the list. It is not considered to be above any of the others. It is just the way the provision has been drafted. I will not be supporting the amendment for the reason that it is just how the provision has been drafted. I appreciate we should have looked at putting the criteria in order and considered what being first might indicate.
Amendments Nos. 20 to 25, inclusive, have been tabled by Senators Higgins and Ruane. Amendment No. 20 would add administration, civil society and trade unions to the list of knowledge and expertise to be brought by lay members of the commission. In terms of trade unions, I am satisfied that a person with experience in the worker representation field is not at all precluded under the criteria that have been set out in the Bill. A person with public service experience, as provided for in paragraph (a), might well have experience in worker representation. Similarly, the involvement of a person who has human resources experience is provided for in paragraph (b). The same is true in subsequent paragraphs of a person with experience of the courts system or a person with experience of human rights. We have tried to keep it broad and inclusive without being specific. The moment we start to get specific, we potentially exclude people as well. That is why we have set out the four areas.
Amendment No. 21 would delete "business" and "finance" but leave "public service" on the list of matters that are relevant to the section. The term "business" is broad and would include commercial activity, so that term would comprehend this aspect of the amendment. It would be a positive contribution to the commission to have a person who would have that type of financial experience or knowledge.
Amendment No. 22 would have the effect of adding as a criterion "relevant areas of academic research including the law or social policy ".
We were minded to include law or legal references in this provision concerning lay knowledge because we know there will be significant legal knowledge and knowledge of the law given the overall composition of the commission and the other members who will fill the other positions.
Amendment No. 23 would have the effect of adding a criterion concerning the environment, sustainable development and environmental law. Again, I appreciate where the Senator may be coming from on this considering that we are moving to specific courts and looking at specific areas. I would ask the question then of whether we would not include family law or other types of law as well. Being so specific potentially excludes others. Currently, a person with a background in the environment or sustainable development is not precluded from putting himself or herself forward. It speaks to the point that we have tried to keep the criteria broad so that nobody is excluded.
Amendment No. 24 would have the effect of adding a category relating to international law and international agreements. This is another area of the law the Senator wants to the prescribe and I do not propose to do that for the same reasons.
Amendment No. 25 would change the phrase "protection of human rights" to "protection and promotion of human rights" as one of the criteria. While I see where the Senator is coming from, I suggest that what I have proposed and what is being proposed here get to the same point and the overall objective is the same. The most important point is that the Public Appointments Service, PAS, could select a person with experience in human rights and equality.
Amendment No. 26 picks up the earlier discussion about the nomination of a representative from the Irish Human Rights and Equality Commission, IHREC. We spoke about this matter last week. While I considered specifically having a member from IHREC, on further consideration the fact that we are not nominating representatives from any other type of body with a human rights focus makes it hard to justify why one would be picked over the other. I appreciate the significance and importance of IHREC but there is nothing to prevent members of IHREC putting themselves forward. Given that the criteria for lay members clearly refer to persons with a human rights background and persons who will promote or protect human rights, I fully anticipate that we will have members of that standing. Perhaps somebody from IHREC will put themselves forward and be successful.
Amendment No. 27 would have the effect of no longer requiring the Minister to appoint from among persons nominated by the PAS but allowing discretion on the matter. Whether it is the judges having to go through the commission or the lay members of the commission having to go through the PAS, what we have tried to do is ensure we have a clear, transparent, visible and coherent system. That is the logic we have tried to apply throughout the legislation.
Amendment No. 28 would have the effect of replacing part of the text in subsection (5). The existing text provides that "the Minister shall appoint lay members from among the persons recommended by the Public Appointments Service". No lay members can be appointed outside this process. The amendment would also have the effect of providing that the Minister can appoint such other lay members as he or she thinks suitable and who have not been recommended. As I said, we are trying to keep everything within a specific structure so that every individual on the lay side of the commission will come through the PAS. I think I have covered all of the amendments. I apologise for missing the discussion the other evening.
Before I call on Senators to respond, I welcome to the Visitors Gallery Mr. Brady and the politics class from Dundalk Grammar School in County Louth, who are here as guests of Senator McGahon. They are most welcome. I hope the students learn a lot on their day out to Leinster House and enjoy their visit here. They are seeing democracy in action. I thank them for visiting Seanad Éireann today.
I appreciate what the Minister has said. I understand, given that there have been no amendments made in this House, that there may be a concern that if an amendment were to be accepted here, it would cause the Bill to go back to the Dáil. I know the Minister does not think that is the only reason we would not accept amendments. I understand the rationale behind the decision not to accept amendment No. 19 but I hope she will give it consideration before Report Stage. On that basis, I will withdraw the amendment.
I appreciate that the amendment does not propose to change the substance of the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 13, to delete line 18 and substitute the following:
“(a) commerce, finance, administration, public service, civil society or trade unions,”.
I am speaking on behalf of Senators Higgins and Ruane, neither of whom can be here today. I have been tasked with their job.
I understand the argument that things need to be kept broad and that this does not preclude X, Y or Z. In reality, however, what we have found that does not always necessarily translate in lots of different ways unless something is prescribed. I find this argument, which has been made repeatedly by different Government Ministers in respect of different Bill, interesting. They argue that people are not prevented from doing something and without wishing to drag the discussion on to a different Bill, I will cite the example of a county councillor who applied to join the board of a governing body. The body responded that there was no reason to appoint the councillor to the board, despite the fact that individual had applied through the regular process, because there was no longer any such stipulation in the legislation, even though, in theory, councillors were not precluded from applying. I am not convinced of the argument that not precluding people from applying means that people may apply.
Senator Higgins has given me a note on amendment No. 20. The amendment seeks to delete section 13(4)(a), which provides that the objective that "the lay members will, having regard to the functions of the Commission, amongst them possess knowledge of, and experience, qualifications, training or expertise" in "business, finance or public service". My understanding is that this amendment would replace the subsection with a broader provision that among the lay members of the commission there will be expertise in commerce, finance, administration, public service, civil society or trade unions. A broader range of expertise being sought among the lay membership would be welcome and would go a way to ensuring that the commission is broadly representative of society at large.
Amendment No. 21 seeks to delete the reference to business and finance and refers to the expertise in corporate governance which would already cover the expertise that would seem appropriate for the lay membership of the commission.
Amendment No. 22 would provide that one of the areas for inclusion in relevant expertise sought by the PAS for lay membership of the commission would be relevant areas of academic research, including the law or social policy. This would ensure there would be a guarantee of academic expertise in relevant areas on the commission.
Amendment No. 23 seeks to provide that one of the areas for inclusion in relevant expertise sought by the PAS for lay membership of the commission would be the environment, sustainable development and environmental law. It is important that there be appropriate expertise in this area given that there is a large volume of cases being heard on questions of environmental law and a growing body of case law in this area. Furthermore, there are significant international agreements and domestic legislation in operation in the State, such as the Paris Agreement and the Climate Action and Low Carbon Development Act 2015. It would be welcome for expertise in such areas to be included as expertise being sought by the PAS.
Amendment No. 24 would provide that one of the areas for inclusion in relevant expertise sought by the PAS for lay membership of the commission would be expertise in international law and international agreements or conventions to which the State is a party. This is complementary to previous amendments which cite specific areas of international law, such as climate or disability law. Therefore, a broader range of expertise would be welcome.
Amendment No. 25 would amend section 13(4)(d) by including the phrase "and promotion" in the language regarding expertise sought for the lay membership in the area of the protection of human of rights and equality. The protection and promotion of human rights are two different but complementary sets of expertise. It would be welcome for both areas of expertise to be included in the lay membership of the commission.
For the reasons I have outlined, we have tried to keep the criteria as broad as possible to ensure that persons who see that their area of expertise is not included will not feel they are excluded and cannot apply, whether that is environmental law or another area. I would argue that there is a huge focus on and need to have expertise in the area of family law, which raises the question of whether that should be included as well. Business, finance and public service cover as broad a range as possible, as well as the specific amendments set out by the Senators. Those points apply to all of the amendments, which are very similar in that they seek to set out the provisions in a more prescribed way. What I have tried to do is to keep the criteria as broad as possible to include as many people as possible and not be specific as to who can or cannot be part of the commission.
I agree with the Minister that subsection (4) is not supposed to be a wish list of attributes for particular agendas.
The purpose is to get reasonably rounded people with a good handle on what they are being asked to do, which is to assist in the recommendatory process and to perform that function. As the Minister said, there are important areas of law that have not been mentioned in any of the amendments, such as intellectual property law, family law and land law. We cannot just cherry-pick our favourite aspects of law and say that those are criteria which justify somebody being selected or not being selected for lay membership of the commission.
Amendment put and declared lost.
I move amendment No. 21:
In page 13, line 18, to delete “business, finance or”.
Amendment put and declared lost.
I move amendment No. 22:
In page 13, between lines 18 and 19, to insert the following:
“(b) relevant areas of academic research including the law or social policy,”.
Amendment put and declared lost.
I move amendment No. 23:
In page 13, between lines 20 and 21, to insert the following:
“(c) the environment, sustainable development and environmental law,”.
Amendment put and declared lost.
I move amendment No. 24.
In page 13, between lines 20 and 21, to insert the following:
“(c) international law and international agreements or conventions to which the State is a party to,”.
Amendment put and declared lost.
I move amendment No. 25:
In page 13, line 23, after “protection” to insert “and promotion”.
Amendment put and declared lost.
Amendment No. 26 cannot be moved because it is consequential on amendment No. 19.
Amendment No. 26 not moved.
I move amendment No. 27:
In page 13, line 24, to delete “shall” and substitute “may”.
Amendment, by leave, withdrawn.
I move amendment No. 28:
In page 13, lines 24 and 25, to delete all words from and including “lay” in line 24 down to and including line 25 and substitute the following:
“lay members from among the persons recommended by the Public Appointments Service under subsection (2), or such other lay member as the Minister deems suitable, and where the Minister appoints a person under this subsection who is not a person recommended by the Public Appointments Service under subsection (2), the Minister shall publish an explanation as to why he or she felt it necessary and appropriate to appoint a lay person other than a person recommended by the Public Appointments Service under subsection (2).”
Amendment, by leave, withdrawn.
Section 13 agreed to.
Before I move on to the next section, I welcome representatives of Killusty Tidy Towns from County Tipperary who are in the House with Senator Ahearn. Mr. Leo Darcy and Ms Louise Coen are most welcome. I thank them for all their hard work. My mother is involved with Tidy Towns so I know the amount of work that goes into it. I thank the guests for being here today.
NEW SECTION
I move amendment No. 29:
In page 13, between lines 35 and 36, to insert the following:
“Practitioner members
14. (1) The Law Society of Ireland and the General Council of the Bar of Ireland shall each nominate one practitioner representative for appointment by the Minister as a member of the Commission.
(2) A practitioner representative shall be a practising solicitor or a practising barrister.
(3) A person nominated under subsection (1) shall hold office for a period of 3 years from the date of his or her appointment.
(4) The provisions of this Part relating to the removal of lay members of the Commission shall apply to practitioner members as though they were lay members.”.
Perhaps this amendment should have been ruled out of order because it seeks to add two members to the commission.
If the Senator wants me to rule it out of order, I can do so. We have already discussed it with amendment No. 2.
It is the first time I have ever asked for that to be done.
Amendment, by leave, withdrawn.
Section 14 agreed to.
Amendment No. 30 not moved.
Sections 15 to 20, inclusive, agreed to.
SECTION 21
I move amendment No. 31:
In page 18, between lines 2 and 3, to insert the following:
“(6) In considering whether to remove a lay member from office, the Government shall lay a copy of the proposal to remove the lay member before the Joint Oireachtas Committee on Justice and shall seek and have regard to the views of that Committee in such considerations.”.
This amendment seeks to add an extra layer. Section 21 already provides that "The Government may remove a lay member from office [on] one or more of the grounds specified". There is a requirement for a resolution to be passed by each House of the Oireachtas, including the Seanad, before that is done. This additional safeguard is already in the Bill. I think that adding the committee on top of that would be overburdensome. I am not sure whether it is necessary at this stage. That it will have to go through both Houses will add a layer of protection when somebody has to be removed.
Amendment put and declared lost.
Section 21 agreed to.
Sections 22 to 27, inclusive, agreed to.
SECTION 28
I move amendment No. 32:
In page 21, between lines 18 and 19, to insert the following:
“(4) In this section, references to the improvement of diversity shall be construed to include improvement of representation of persons or classes of persons who are disadvantaged by reference to the following factors:
(a) gender;
(b) civil status;
(c) family status;
(d) sexual orientation;
(e) religious belief;
(f) age;
(g) disability;
(h) race, including colour, nationality, ethnic or national origin;
(i) membership of the Traveller community.”.
This amendment proposes that we should flesh out in the Bill the concept of diversity. I think it would have very unsatisfactory consequences if it were adopted. To ask the commission to try to work out whether there is adequate diversity in religious opinion, if that is to be a criterion for selection, would inevitably involve asking people for their religious views to see whether this criterion is satisfied. I do not know what "civil status" means. Gender is fairly obvious, or I hope it is. Regarding sexual orientation, are we going to have the commission ask candidates for judicial office questions to work out what their sexual orientation is? Their age should be fairly clear to the commission, but I do not know what the idea of diversity in age is supposed to mean. To be eligible to be a judge, you have to have done ten or 12 years practice as a lawyer, or the equivalent as a legal academic with some degree of practice as well, so we are not talking about diversity in age. Is this really to be the case? Let us remember a few things about this. We are appointing people to a job which involves or does not involve their pensionability. For most applicants, this would be an important point. Are we to say that there should be a good rash of people in their late 60s because they are well represented in this area? I am not suggesting that someone in their late 60s should not be eligible but I do not think it should be a criterion for appointment to say that we need people in their late 60s. I really cannot see any advantage in this amendment. I think it pushes unnecessary agendas. I am, of course, prohibited from being a member of the commission but if I were there, I would not want to know whether I was being sufficiently diverse in my recommendations by reference to matters such as religious beliefs, sexual orientation or civil status, whatever that actually means. These things are private matters for a candidate for the Judiciary and should not be the subject of examination by the commission.
Amendment No. 32 seeks to insert a definition clarifying the groups to whom the improvement of diversity referred to in commission's diversity statements will apply. They have been taken from the commission's own diversity statements. I am quite surprised that Senator McDowell does not know what "civil status" is, considering the groups in question are all listed in the Equal Status Act. These groups have not been randomly plucked out of thin air. This is a list taken directly from the Equal Status Act. The amendment is being proposed as a measure for clarification for the commission's own diversity statements.
If we cannot look to the Equal Status Act as a guiding principle for diversity and equality, it is a bit of a pickle.
The Equal Status Act is there to protect people from unfair discrimination. It is to assist people who are discriminated against on those grounds in seeking redress and requiring others to protect them from unfair discrimination. However, there is no logical connection between the criteria for unfair discrimination and a process whereby members of the Judiciary are selected by explicit reference to the characteristics mentioned in the Equal Status Act. I know that my colleague did not draft this amendment, but it shows a degree of intellectual confusion if it is based on the proposition that because someone can seek protection against discrimination on these grounds, the commission should investigate whether the person belongs to any of these categories before appointment.
I agree with Senator McDowell. I understand where the reference to the Equal Status Act comes from. However, the Equal Status Act is there for the purpose of enforcing rights and creates categories in which litigation can be conducted to protect people in those categories. Broadly speaking in the context of this amendment while it is important to recognise that, of course, the Judiciary should represent diversity to the greatest extent possible and should reflect the community as a whole, that must be an aspiration rather than an imposition.
We need to remember two things. First, there is a limited number of judges. The High Court, for example, only has a little over 40 judges and I think the Court of Appeal has 20, but it is a small number of people. It will not always be possible to achieve the diversity across these nine categories that Senator Hoey might want to achieve because the reality is that there may not be enough people to do it.
The second restriction is on the category of people who are qualified to fill the positions. For example, obviously in certain diversity criteria such as gender, for example, it is relatively easy to achieve that diversity and that balance, but it might not be possible in respect of things like ethnicity, membership of the Traveller community, disability or age, as was mentioned. In reality, someone cannot become a judge in this country before the age of 30. By the time somebody qualifies as a lawyer and undertakes at least ten years of practice he or she will be over 30. That is one entire category that could not be included in a diversity. The Judiciary, on that basis, will never represent people under the age of 30, for example. That is a fact of life. It is not that there is any striving to exclude under 30s from the Judiciary, but the reality is that we simply cannot populate it with a diversity of our choice.
The reality is that several other criteria need to come in. It may well be that of the people who are qualified there may not be enough people who could be chosen to fulfil all of the nine categories defined under the Equal Status Act. While I applaud the provision in section 28 relating to a diversity statement by the commission, putting into the Act that the commission must be aware of that diversity issue and must therefore strive to achieve diversity where possible, we must also remember that the reality of having at least one member of each court, for example, from each of the nine categories defined in the Equal Status Act is not necessarily achievable. Perhaps it will be possible, but there is a very strong chance that it will not be in every court.
The notion of restricting the commission's ability to do its work by putting in such a specific amendment to section 28 fundamentally misunderstands the role of the commission which is to appoint members of the Judiciary who must be first and foremost excellent, competent and professional. Those must be the first criteria and after that to seek to achieve criteria relating to diversity, representation of the community as a whole and all that. However, first and foremost we must strive to have a Judiciary that can do its job effectively, professionally and excellently. I do not think this amendment would help us down that road. In fact, I think it would substantially restrict the ability of the commission to do its work.
The proposal in the amendment is clearly very well intended. Diversity is clearly required and is not reflected on the Bench at the moment. However, I am not convinced of such listed detail in a specific statutory provision. I do not believe it is necessary and it could have an unintended consequence. It could become a distraction and burdensome. While a noble aim, it is disproportionate and misplaced to insert it in a statutory provision in this instance.
I appreciate where Senator Hoey is coming from in outlining this issue. However, I share Senator McDowell's concerns. The amendment proposes to insert: "references to the improvement of diversity shall be construed to include improvement of representation of persons or classes...". How could that be done without having to ask each individual applicant in the interview process about his or her sexual orientation, religious belief or civil status? I am not sure that is where we want to be. It is obviously clearly set out in the Equal Status Act, which is there to protect people who may be disadvantaged because of one of these characteristics.
The commission needs to set out a diversity statement within a period of time afterwards clearly stating that it should reflect the diversity of the population but also taking into account, as Senator Ward has said, a person's competence and all the other factors. For that reason, I cannot accept the amendment. I understand the logic behind it but the consequences of the commission having to show that people were not disadvantaged would mean that it would need to go through this list and potentially ask people of their status which I do not believe is the intended consequence here.
Amendment put and declared lost.
Section 28 agreed to.
Sections 29 to 33, inclusive, agreed to.
SECTION 34
Question proposed: "That section 34 stand part of the Bill."
This section is a very important recognition of the non-application of the Freedom of Information Act as I understand it. This issue will come up in one of my subsequent amendments.
It is very important to maintain the confidentiality of those who may apply for judicial office. If that is applied, a whole raft of people, who would certainly be qualified and who might make excellent judges, will simply not apply. The reality is that for people in practice, particularly at the Bar where they are dependent on briefs coming from a solicitor, if word gets out that they might be about to apply for a position in the Judiciary, it can totally compromise their ability to practise.
This issue arises when interviewing people and the extent to which the commission should or could involve itself in very substantial investigations into that person involving other people. There is a real danger that the information that that person has applied could get out and it will totally compromise the ability of the commission to do its work. I believe the provisions in section 34 are very important.
Question put and agreed to.
Sections 35 to 38, inclusive, agreed to.
NEW SECTION
Amendments Nos. 33 and 36 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 33:
In page 25, between lines 32 and 33, to insert the following:
“39. Nothing in this Part shall be construed as limiting the advice that the Government may give to the President under Article 35 of the Constitution with respect to the appointment of a person to be a judge.”.
These amendments are intended to go the heart of what this legislation is saying. It is important that the Minister give the House some clarity on the intended purpose of the Bill. Will she tell the House whether it is the intention of this Bill to make it unlawful or illegal for the Government to appoint a person who is eligible for judicial office where that person has not been recommended by the judicial appointments commission?
The answer is "Yes". We are setting out a clear process that will apply to every individual regardless of whether he or she is a sitting judge or a solicitor or barrister applying for the first time. Everyone will come through the same process. I appreciate that the Constitution sets out that the Government appoints judges. That is why I am not recommending that one name be put forward to the Minister or Government or that the three names be marked as the first, second and third preferences. I believe there should be discretion. At the moment, a Minister could be provided with up to 60 names. I am not sure that is the best approach either. While there may be a particular view that the three recommendations limit the Government's discretion, I have looked at this issue carefully and examined how people are put forward, presented to government and appointed in other jurisdictions. This strikes the right balance. In short, the answer is "Yes".
That being the case, it seems the effect of the Bill and the refusal to accept this amendment is to say that, under the Constitution, the Oireachtas can tell the Government that it may not appoint certain people who are eligible to be made judges because they have not been recommended by a body that is not the Government. The Constitution refers to eligibility as a matter determined by law. I have no problem with statute stating that somebody should have seven, ten or 15 years' experience as a lawyer to be deemed eligible but we are left with a strange conundrum here. Is it seriously being stated that, if the Attorney General informs the Government that three or four people whom he or she considers to be entirely suitable for promotion from the Court of Appeal to the Supreme Court, for example, have not been recommended by the commission, the Government cannot appoint one of these people?
I will go back to the point that, as things stand, it is a matter of statute law that any judge of the High Court or the Court of Appeal is ex officio deemed suitable to preside over cases in the Court of Appeal or the Supreme Court on the invitation of the Chief Justice. If, for whatever reason, the Chief Justice wishes to ask a member of the Court of Appeal to sit as one of the judges in a Supreme Court decision in a court of three, five, seven or nine, such a person is eligible to do so. However, what is being said here is that such a person, although eligible and entitled by statute to act in either of these courts if invited by the Chief Justice or the President of the Court of Appeal, as the case may be, may not be made a member of the court in question. The conundrum I identify here is that if everybody who is a High Court judge is ex officio suitable to be invited by the Chief Justice to serve on the Supreme Court on a one-off basis, how can the Government be prohibited from making them a member of the High Court or the Court of Appeal under the Constitution? It seems that we are giving a veto to the judicial appointments commission, although we are not admitting that is what we are doing. We are telling the commission that it may constantly say that John or Josephine Bloggs, who is a senior counsel, senior solicitor or whatever, is not to be on the list and that, because it has said this about that person and although that person may already be a judge, the Government is prohibited by statute from making him or her a member of a court on which he or she is entitled to serve in certain circumstances. I doubt the constitutionality of that.
I know the Minister is not going to reveal to us the Attorney General's advice but, on this fundamental issue, the House is entitled to hear the basis on which the government of the day could be prohibited by law from appointing somebody by a concerted decision on the part of a judicial body of which four of the eight voting members are laypersons. What it really means is that the Judiciary could blacklist somebody from appointment even though he or she could serve as a judge by reason of experience and is legally entitled to do so. It also means that the Judiciary could decide that a particular member of the High Court or the Court of Appeal should not be appointed to an appellate body, whether the Court of Appeal or the Supreme Court, effectively on its own say-so. I find it a somewhat repugnant idea that we are, in effect, giving a veto to the Judiciary with regard to who can be appointed to the courts at all and who of a number of judges can be promoted from the Circuit Court to the High Court, from the High Court to the Court of Appeal or from either of those latter courts to the Supreme Court. We are saying that the Judiciary can consistently naysay an applicant.
We had a detailed discussion about the Attorney General's role on the previous occasion. The Attorney General would be in a position to inform the Government if a blocking majority on the judicial appointments commission seemed to have taken the view that a particular judge should not be a member of the Supreme Court and has consistently nominated three other people rather than that person or excluded him or her from the list of persons recommended for appointment, which is one of the justifications for having the Attorney General on the council. This is a fairly fundamental point. Under the Constitution, does the Oireachtas have the right to tell the Government that, although somebody is eligible for appointment, it is prohibited as a matter of law from appointing him or her? It is a fundamental issue because, in my view, it is a rewriting of the Constitution. It is saying that, while heretofore a government has always been accredited with the right to select a judge where that person is eligible, it is now prohibited from doing so simply because four judges constantly say not to, although not through naming the person or putting a black mark against their name but by constantly putting three other people forward and leaving the person in question on the sideline.
That is a novel proposition, constitutionally. I have a doubt as to whether it is within the capacity of the two Houses of the Oireachtas to enact a law directing the Government to do this. The Minister has mentioned that there will be a list of three and that the Government should have discretion. Why should the Government have discretion? Is that constitutionally required or is this just a concession to the Government that it can choose between three? Why should the Government have such a discretion if it is permissible for these Houses to tell it how big the shortlist can be and how it can be ordered from one to three or whatever? If those powers are open to the Legislature, it raises the question of why the Executive, under the Constitution, should have any discretion at all. It is difficult to justify the democratic discretion that Senator Ward has mentioned on previous occasions if it is purely a discretion held by the Government on the grace and favour of the two Houses of the Oireachtas from now on.
I would go back to the former Senator, Shane Ross, and his efforts in the Dáil. I am not talking about the legislation brought in by the former Minister, Deputy Flanagan. Prior to that, Mr. Ross attempted to introduce legislation, the gist of which would have been that a committee of the Dáil, the majority of which was not Government Deputies, had to approve any member of the Judiciary. That, to me, was manifestly unconstitutional. I do not understand how the two Houses of the Oireachtas can say to the Government that they will give it discretion up to three and de facto give four judges the right to veto any candidate for any judicial office, but the Government still remain the people who can advise the President under the Constitution as to who should be appointed. It is a serious issue with this legislation. I do not know if the President will in the fullness of time, if this legislation comes before him in this form, ask himself whether he should refer the matter to the Supreme Court to see if it is legitimate. Why is it legitimate that a list of three dictated by four judges can prohibit the Executive from appointing or promoting somebody who is otherwise eligible to a particular court? We are not talking about people being made district judges on a wet day some afternoon. We are talking about who composes the Supreme Court. If six or seven members of the High Court and the Court of Appeal indicate an interest in becoming an ordinary judge of the Supreme Court, why is it constitutional for four judges to choose between them and knock people off the list, thereby prohibiting those people from being appointed to the Supreme Court?
I have said this on previous occasions but I will reiterate it now. As Senator Ward said, the appointment of judges is, in the last analysis, a decision made with executive discretion carried out under the Constitution by people elected democratically to serve as the Government of the country. If there is such a discretion, it seems to me that there must be a question mark over whether it is lawful to tell the Government that a group of four judges has consistently vetoed one member of the Judiciary from being appointed to any particular position. I strongly believe that it is not constitutionally permissible to do that. In this context, I remind the Minister of what is in section 42. I know we are not discussing that now but it is hugely important when we consider whether this amendment is or is not permissible. Section 42(1) states:
The Minister may request the Commission to make recommendations for appointment or for nomination for appointment to judicial office, as the case may be, where—
(a) a judicial office stands vacant, or
(b) he or she reasonably anticipates that there will be a vacancy in a judicial office.
If the word "may" really means may, it may also mean "may not" If it means "shall" and, therefore, means it is obligatory on the Minister to request the commission to fill such a position, there are two ways of looking at it. It could be "shall", unless the Government has decided to leave the place vacant completely. The Government might decide there are too many members of the Court of Appeal and since Mr. Justice or Ms Justice Bloggs has retired, it will just leave that place vacant and will not ask the commission to look at the matter. That is one possible meaning of the word "may". If it is absolutely obligatory for the Minister, wherever there is a vacancy that is intended to be filled, to press the switch for the judicial appointments commission to make a recommendation, then the word "may" seems inappropriate in section 42.
My understanding in any event is this. Senator Ward mentioned that there are 20 members of the Court of Appeal. It would be remarkable indeed if among those 20 people, eight consistently sought appointment to the Supreme Court and four members of the Judiciary consistently vetoed five of those eight by putting forward three other persons. That is a remarkable constitutional revolution. I would like to see what constitutional justification there is for doing this. I will not put the matter any further than that.
This one single amendment is substantive. It is so central and fundamental. It is like a belt and braces approach to the whole thinking and statutory intention behind the Bill. It would have the benefit of, if needs be, saving the Bill from itself. There might be a constitutional challenge at some later date but the Legislature should never fear a constitutional challenge. That is part and parcel of a robust democratic system. To look at the statutory intention, maybe the transcripts of these debates could be read into some court record at a later stage. Senator McDowell is almost forcing the Government to nail its colours to the mast in blatant terms. The Minister has replied that this is the intention. She has clarified that issue beyond any doubt. Therefore, the Legislature is prepared to put its head above the parapet. That is what I interpret from today's debate. Then we have to look at whether there are safety valves in the Bill in the way it is drafted. I construe the word "may" in section 42 as having a different meaning, whereby the Minister is not forced to do anything.
The word used is "may". To accept in full Senator McDowell's well-intended amendment would be very bold. It could set the Bill at naught. We have to rely on a favourable interpretation of the words "may" in section 42 and, as regards the doctrine of the presumption of constitutionality of the legislation, that it would never be repugnant to the Constitution. The Attorney General has given the Government advices to which we are not privy. Has it done enough to save itself from potential challenge? I would say it is very close. It is for another academic discussion to ask who would have locus standi to take such a challenge. How would one compile the necessary cogent evidence to show four members of the Judiciary had acted in a certain way? I would like to think the Judiciary would not act in that way but I am alive to the possibility of an unconscious bias. You would want to be really open-minded all the time and every day of the year to spot a talented person who might be diametrically opposed to you and your views on life but may make a very good judge. There is a possibility of a judge in a powerful position inadvertently going down a road which may not necessarily be fair.
This is a fundamental amendment. It is almost like a declaration within the Bill to leave the Constitution alone and the Constitution is sacrosanct. I fully get that but is it necessary and is it not a given that the Constitution will always trump the legislator? The Government of the day should not be fettered by the legislator. If it is, at some stage there could be a challenge. I am not sure how that challenge would manifest itself but our duty is to legislate in a constitutionally safe way. I am sure the Minister will give us the assurance that this has been well thought out and that there is a safety valve within the discretion. I am not saying it is tying the hands of the Government but there is a case to be made that it is tying one hand of the Government. If that is so, we are in uncharted waters.
I will have to rely on the expert advice of the Attorney General on a very tricky, constitutionally discrete and volatile issue which opens itself up to different interpretations. Will the Minister give us further assurance that this has been thought out? It would be helpful if we saw the advice. I know the chief adviser to the Government does not have to give a legislator advice but that would reassure me. I am not entirely satisfied that this is constitutionally safe. I get it and know where it is coming from. I hope there are enough safety valves and assurances both in the Bill and from the advices that it will withstand a challenge. If there is a challenge, so be it. If the President, as the Senator said, refers the Bill, that is nothing to be afraid of. It would help clarify the law for everyone. We should never be afraid of challenges.
I would be concerned if we adopted this amendment. Maybe that would become the rule and not the exception and then this is just a dressed-up academic exercise which means well. I would prefer to rely on the Constitution. I am not sure it is necessary to have a statutory provision reminding us we are not in contravention of an Article in the Constitution. It would give great clarity, at the same time, but is it necessary to say we are at all times constitutional here? That is the question. Do we not presume we are acting in a constitutional way, to the best of our ability? I would be grateful to hear further from the Minister if she wants to think about that. The advices from the Attorney General would reassure some of us, as legislators who have the onerous task of deciding on this issue, which is not that simple.
I do not agree with the amendment. I understand where Senator McDowell is coming from but I feel he has created a very forced scenario, which he has reinforced by suggesting there will somehow be a judicial veto. I do not think that is the case, which is why the Minister has strived to have a small commission with a balance between judicial and lay figures. Senator McDowell has put this together in a not unmischievous way. When he was Attorney General he would not have thanked a Senator for standing up in the House saying his advice should be published. The purpose of Attorney Generals' advice is not that it be debated in this House or the public domain; it is legal advice to the Government as the Attorney General's client. That is why it remains confidential and there is not a requirement to publish it. Otherwise, it would be second-guessed by everyone. Legal advice from the Attorney General or an individual practitioner is always subject to interpretation. That is the nature of law. It is not a science but something that is subject to interpretation. The only interpretation that counts is that of the court.
I do not agree with the Senator when he contrives a scenario in which a group of four judges exercise what he calls a judicial veto on the appointment of people. I do not envisage that happening, although I accept what he says on the possible contradiction arising from it. He is trying in his amendment to ascertain the supremacy of the Constitution but that is, as has been said, a given.
If I am wrong in this, I am open to correction. Article 35.1 provides for the power of the President to appoint judges. He or she does so on the advice of the Government. That power in the Constitution will not be not undone by this Bill. I do not agree that all of the provisions of the Bill are necessary, which is why I have tabled amendments to many of them. Perhaps it is because I practise law in this country that I have a greater faith in the way the system operates than others do.
Underpinning this legislation is a supposition that the Government should not be as involved in the appointment of judges as it is. As I said on Second Stage and already on Committee Stage, it must be a fundamentally political activity to appoint judges, not because judges should be political - they are not political, in fairness to them - but because they are a branch of Government. The democratic element of their appointment comes from the fact that the representatives of the people, through the Executive, appoint them to their position, albeit it is difficult to remove them from that position thereafter. The people have their say through the Government and Executive at the point of appointment.
I disagree with Senator Martin's suggestion that it is not for this House to fetter the Government. That is exactly the job of this House. Everything the Government does must be done under the conditions put in place by-----
Constitutionally sound.
Constitutionally, absolutely, but the suggestion was that we should not fetter the Government, while in fact we should. The Senator is right that constitutionally there is a trump card there but as legislators, it should be our job to put in place legislation that fetters, controls or manipulates the powers of the Government. That is why so much of what Ministers do must come back to these Houses and why Ministers are accountable to the Dáil. That is an important part of the checks and balances in our democratic system. It is not a separation between the Executive and the Legislature because the Executive controls the Legislature. It is not a separation of powers. I do not believe it is correct to go from there and suggest that, because these Houses or this Legislature, through this Bill, will restrict the ability of the Government to choose somebody without going through the process laid down in this legislation, it is such a fettering of the power of the Government as to render it unconstitutional.
That is not correct because at the end of the day the constitutional power is for the President to appoint the judge on the advice of the Government and under Article 35 that power endures.
If I have understood it correctly, the point that Senator McDowell makes is that the Attorney General could not arrive into the Cabinet meeting next week and say that Mary Murphy would be a great Supreme Court judge, that there is a vacancy and that she should be put in and because the provisions in this Bill will prevent the Government from doing that we are somehow interfering with the constitutional prerogative of the Government. I do not agree that this would be a constitutional issue. One must look at all the legislation because a constitution only operates within the confines of law in real terms. Putting down legislation that defines a process that must be followed by the Government in the appointment of judges is not to fetter the constitutional discretion of Government in an unjustifiable way. In every Bill that has been passed by these Houses, establishing other judicial appointments boards and bodies for the appointment of judges or for any other appointment that the Government makes under the Constitution via the President or that the President makes on the advice of the Government, they have all fettered that discretion and corralled the powers of the Government into a particular channel or process. That is done for lots of legitimate legal and constitutional reasons. The reason, as I understand it, behind this Bill is to put in place a system of transparent processes that will hopefully lead to the appointment of the best candidate into judicial office. At the end of the day it leaves no question as to whether, for example, one individual, be it the Attorney General or another Minister or whoever, does not rock into the Cabinet meeting next Tuesday and say that Mary Murphy should be put into the Supreme Court. The purpose of this legislation is to establish a process that is transparent and clearly set down in law, and that is followed by the Cabinet and the Executive before that recommendation is made to the President for appointment under Article 35.
I understand the point that Senator McDowell is making and I also understand that it is part of his remit to challenge and raise these issues, as is all of our remits in this Chamber. However, he has shoehorned an issue into this discussion that would never arise, although that is not the point. The point is not whether it will arise but whether it could arise. What we have done in section 9 in establishing the membership of the commission is to have a body of people that is balanced and that has lay and judicial representation. I lament the fact that there is no professional representation and I have made that point already.
The other issue that potentially arises in that context is what I was trying to do in amendment No. 30. I am sorry that I stepped out and that the amendment fell but it was concerned with the casting vote in the event that there is a tie. Perhaps the Minister has an answer to that point that I am not aware of. The scenario that Senator McDowell envisages is not one that we have to fear because it is legitimate for the Oireachtas to decide that there is a process, that there are parameters and that there are restrictions on the exercise of the Government's power under Article 35 to advise the President in respect of judicial appointments.
A number of things have to be said. There is a presumption of constitutionality when a Bill emerges from this House and the onus of proof of its unconstitutionality switches. If a Bill has two possible meanings it is impressed with a constitutional meaning rather than an unconstitutional meaning. However, there is no presumption of constitutionality at all for a Bill that is before us for consideration. Therefore, it is not merely our right but our duty to test whether something that is put before us is consistent with the Constitution. Earlier I noted that Senator Ward was not here when his amendment No. 30 was dealt with, and I am not criticising him for that. Amendment No. 30 states: "in the event that there is a tied vote on any matter before the Commission, the chairperson, including a person acting as chairperson under subsection (3), shall exercise a casting vote". This will mean that in most appointments the Chief Justice will have a casting vote. What I say about the Judiciary effectively being given a power of veto-----
That is not in the Bill.
That is not in the Bill but maybe the Minister will assure me that it is not intended to deal with Senator Ward's matter on Report Stage because I have a funny feeling it may be. That is what I am worried about. Are we to be in a position that if the commission divides four against four on an issue, no decision will be made or will we be in a position where there is a casting vote? I notice that the legislation states that the commission can determine its own procedures. However, this is a matter of significance. Four members, be they lay or judicial, could say they want Senator Ward to be on the short list and four others could say they want Senator Martin to be on the short list. That difficult choice could be put before the commission.
A Hobson's choice.
What is to happen if there is no casting vote? Are they to say they cannot make their minds up on it and they cannot send a shortlist to the Government? Are they to reason it out among themselves or browbeat the Ward or Martin faction into withdrawing their positions? None of this is provided for in the legislation, which is worrisome. If we are giving an entity, namely, this commission, the effective capacity to tell the Government who it can appoint and who it cannot appoint, and if that is the sum and bottom line of this legislation, then the very least we are entitled to in this House is to know what happens in an eight-person commission when they divide four against four. We are entitled to know how that would be resolved.
The Minister cannot just walk away from Senator Ward's amendment or think that she will come back to it later; it is a hugely important point. It does not matter whether they are all judges or non-judges, an eight-person commission effectively has the right to tell the Government who it can appoint, and by exercising that power, to tell the Government who it cannot appoint. If it is not provided for in the legislation how an issue is to be resolved if they divide four against four then there is a fundamental defect in it because we are being asked to establish this body and to give it these powers, and we are not being fairly given an indication of how it is to exercise those powers in the event of an even disagreement among its members. As Senators and legislators we are entitled to have clarity on that issue and the legislation should make that clear, whether or not amendment No. 15 was moved.
We cannot avoid the idea of there being votes. If the Minister goes back to section 9 it states that the Attorney General shall be a member of this commission but that this is: "subject to subsection (3)". When one looks at subsection (3) one find that: "The Attorney General shall not, as a member of the Commission, have a right to vote on any matter coming before the Commission for a vote". The commission is now down to seven people in principle but if one person is not there and it is three against three, one is faced with the same dilemma. I am worried by that.
The Judicial Appointments Advisory Board was put in place by legislation drafted when Dermot Gleeson was Attorney General.
What it provided for in relation to lists of people recommended was that, first, they had to have a minimum size, not just a maximum size. Apart from whether it was a good or bad idea, it did not say the Government shall only consider people on the Judicial Appointments Advisory Board list; it said that in coming to advise the President, the Government should first consider the names coming before it from the JAAB. I believe that is constitutional. In other words, it is putting into place a recommendatory role to which the Government is obliged to pay some attention, but when it becomes more than that - the Minister has clarified that it is intended to do more than that and to prohibit the Government, as a matter of law, from advising the President to appoint somebody who is not recommended, even though he or she is eligible - then I think a constitutional issue arises.
Reference has been made by my colleagues to the whole question of the presumption of constitutionality and who would have status to challenge the appointment of a judge or to challenge the substance of this legislation if it comes down to the rights of citizens to challenge legislation. I will make two remarks about that. If the President were to refer this to the Supreme Court so that the constitutionality of this effective veto for the judicial appointments commission could be tested, the Attorney General would then have to present himself or herself before the Supreme Court, or through counsel, and say these are the reasons I say this Bill is constitutional. He or she would have to make submissions then. I fully accept what Senator Ward says. I held the Office of Attorney General. As legal adviser to the Government, there is a privilege involved. One cannot have one's opinions just thrown around like confetti at a wake in Dáil Éireann just because somebody demands to see what the Attorney General did or did not advise the Government. I fully accept that principle, but this is a matter of fundamental constitutional importance. If there were an Article 26 reference, the Attorney General would have to make submissions and he or she would have to explain to the highest court in the land precisely why this is constitutional. Therefore, we are left with the possibility that the President, under Article 26, having consulted the Council of State, would put this matter beyond doubt. If it is not put beyond doubt, the question was raised as to who would have locus standi thereafter to challenge the outcome. It could not be that one would have to be a disappointed applicant. The right to be tried by independent judges appointed under the Constitution is a right of every citizen. Any citizen, whose litigation came before any judge, be it in the District Court, Circuit Court, High Court, the Court of Appeal or the Supreme Court, is entitled to be assured that the constitutional rights of the Government in making the particular appointment of the judge before whom he or she is going to appear have been not merely done in a manner which is defensible but done in a manner strictly provided by the Constitution.
Senator Ward said I was trying to shoehorn something into this debate. I am trying to shoehorn a real discussion into this debate because this House emasculates itself by saying that people can have seven minutes or five minutes to speak on important constitutional legislation on Second Stage. This is a point of fundamental principle and it must be discussed. We are entitled to a clear view from the Government. We have got some clarity this afternoon - which is good - that notwithstanding the use of the word "may" in a later section, we are now saying it will be illegal for the Government henceforth to appoint somebody whose name does not appear on a list, even though he or she could be a senior judge already, for instance in the Court of Appeal, looking to be a member of the Supreme Court. It will be illegal to do that because this commission will not have included his or her name in a shortlist to be considered by the Government. I make no apology for raising this issue in the only effective way that the rules of this House permit, that is, to have a proper discussion where I can ask a question of the Minister rather than in a Second Stage speech to which there may or may not be a reply.
I fully accept a lot of what Senator Ward said, including that, in the end, any judge will be appointed by the President under the Constitution. That means nothing, however, if the President is obliged to operate on the advice of the Government and if the two Houses of the Oireachtas have chosen to exceed their powers by telling the Government they rather than the Government will establish a mechanism to determine on what basis that advice will be given.
The Judicial Appointments Advisory Board legislation, crafted by the former Attorney General, Dermot Gleeson, made it very clear not that there was a prohibition but that it was the expectation of the Oireachtas that the advisory board's shortlist should first be looked at before an appointment was made. If the President did refer this matter to the Supreme Court, the Attorney General would have to explain to that court why it is constitutional.
On a constitutional issue of such gravity and importance, when we are being asked to put the legislation in a position that it may be referred to the Supreme Court, it is not too much to ask to understand on what basis the Government has been advised that this is a permissible circumscription of the power of the Executive under the Constitution. It is a matter relating to the separation of powers. This is a point Senator Ward conveniently ignores. It is perfectly permissible under the Constitution – in fact, it is required under the Constitution – that the criteria for the eligibility of persons to be appointed judges are laid down by law. We cannot just go out onto the street and bring somebody down to the Supreme Court and say he or she is a Supreme Court judge because the Government appointed him or her this afternoon. That cannot be done. Once a person is eligible, and once the Houses of the Oireachtas have determined what eligibility means, especially when we are dealing with the position of an ordinary judge of the Supreme Court, for which 60 people would possibly be immediately eligible in conventional terms to apply, ignoring completely persons who were not judges already, members of the High Court and the Court of Appeal - we are now proposing to even extend it to the Circuit Court and to somebody with 12 years' experience in the District Court - what is the point, if they are all eligible, of having eligibility under the Constitution, if on top of eligibility there is disqualification? In substance, we are dealing with a system of disqualification of eligible people.
We are saying that unless one gets a ticket from the judicial appointments commission, one is disqualified from appointment and is made ineligible, in effect.
Of course, we could go a long way down the road of saying that eligibility means the following things but, in the end, if we pervert the meaning of eligibility to mean, "decided to be suitable by somebody else other than the organ of State nominated by the Constitution", then eligibility is no longer the issue, discretion is the issue. If we give the Government’s discretion to a third party commission then we are entitled to see the arguments which are made for the constitutionality of such an arrangement.
I favour a system of transparency. I said it before in this House and I will say it again, when I was Minister for Justice where the current Minister is now, and Rory Brady was the Attorney General, we made appointment after appointment which had nothing to do with the person’s party political affiliation and was demonstrably disconnected from any such consideration.
I make this point, however, that it does not follow from that, that party politics should not influence appointment to the Judiciary. I agree completely with Senator Ward that judges, even if they had a party or partisan history, abandon it completely upon their appointment and take a declaration of office, which in effect prohibits them from having such a consideration because they are obliged to judge every case without fear or favour of any particular outcome. Once that declaration is made, that is fine, but we are very much in a situation - and I return to all of the hullabaloo that the former Minister, Shane Ross, kicked up about this - that in seeking to avoid what I believe was an unwarranted charge of cronyism, we are now putting in place something which alters the meaning of the Constitution as it was understood by the Attorney General, Dermot Gleeson, as it was put in place before. We are now putting a different mechanism in place which in effect says that the discretionary aspects of who should be on the shortlist, and therefore of whom may be made a judge, is transferred away from the Government to the commission.
I say that there is a serious constitutional issue to be determined there. I cannot put it any further but this is not a gimmick and is the only means by which this House can debate this issue. There is no other means on our rather ridiculous rules and procedures where a serious debate of this issue can happen except by tabling an amendment which brings the issue to the centre of the debate. I make no apology for doing that and all I wanted to do, and insist on doing, is getting an explanation in this House as to why this is constitutional because there is no presumption that it is.
The fact that Dáil Éireann did not raise the issue or that Members of that House did not bother themselves with it is no reason this House should not do so, and in fact it is every reason this House should address the matter and seek an explanation. This is not in respect of the advice the Government has received on the issue. I am not looking for the advice that it received from the Attorney General but I am looking for the arguments as to why this is constitutional, as to why a three-person shortlist is considered constitutional, and as to why it is considered legitimate to say that the fourth person, the runner-up, can be consistently and effectively disqualified, as a matter of other people’s discretion, from consideration by the Government.
I am old enough to remember the late Rory Brady in a different role and he was a wonderful Attorney General. I have no doubt that it was said in the Law Library that these were very non-party political appointments but that probably does not give the assurances going forward that it was done right now or it was done right then.
I agree with that.
Transparency is a very easy word to say and I have not met anyone yet who was not into transparency. I would make a general point with reference to invoking Article 26 of the Constitution, that it is rare that that happens. Ideally, that would be a wonderful way of extrapolating the point on whether or not this issue is constitutional.
In the absence of that, this is an issue for an academic discussion at some stage as to the locus standi. That is why what we are doing today is so important because it would be difficult for people with the obvious locus standi, who would have to think about it further, to mount a challenge that their rights were constitutionally breached whether that be in their capacity as a failed candidate, which is not inconceivable, to put such a challenge on such people’s shoulders, even if the decision was overturned, and for them then to serve on the Bench given the manner in which they got there.
Addressing Senator Ward, balances and checks are a vital component of the democratic process but if it is an imposition which crosses the line and is in breach of the Constitution, one obviously cannot go there. This is not a carte blanche unfettered right. The presumption of constitutionality takes effect after the promulgation and enactment of a Bill. It is only a Bill at the moment. Metaphorically speaking, if one considers this exercise as the building of a house and the putting of bricks in it, the builder, which is the legislator, would like to ensure that each brick he puts in would pass that test at a later date, would be a solid brick, would be put in with the very best due vigilance and diligence, would have one eye on what happens after the enactment, would like to be able to stand over the work of the Legislature, and that it is in compliance with the Constitution.
At worst, what Senator McDowell is saying could be dismissed - and I do not agree with this - as the conjuring up of a theoretical proposition. How can it be otherwise, however, because it has never been tested. Even if it is a conjuring up of something which may be enacted, it is a warning and the Senator may be flagging something that, in the interests of all, we would like to get right. I do not believe that a black-and-white approach is the way forward.
The Minister has been very good to come into the Chamber today to put her cards on the table and has made her intentions perfectly clear on this in respect of where the Constitution lies. That is why I look forward to it if the Minister is going to make any further remarks. If the issue was referred to the courts, that is a chance which would enable us to see a version of the Attorney General’s advice, as it would all come out then in open court in the Supreme Court. Notwithstanding that, we have a chief adviser and a constitutional officeholder of the Government who is in that very good line of predecessors, who are very ably qualified, and is a constitutional expert. I just hope that he has pushed this issue out far enough not to get caught with a legal ricochet or bullet - if the Members may excuse the language and figuratively speaking - in a challenge later. I trust him that he will not get caught and that he has pushed this every bit as far as he possibly can. I am not, however, 100% convinced that this issue has not, in fact, crossed the line. That is just my honest assessment of it as best I can make it.
As I have said, and as other speakers all agree, this goes to the very heart of who we are as a democratic society.
We are talking about our judges. Other countries are in disgrace while we have a fantastic system. I am not speaking for others but there is a common theme from contributors who may come from the legal system because we bring our own experiences to it and we do not think it is broken at the moment. I caution that if something is not broken then it does not deserve radical surgery.
I think at this juncture we will return to the Minister and then put the question.
I will try my best to respond to many of the points that have been made. First, I will touch on an area Senator Ward focused on, namely the purpose and intention behind this Bill. One of the key elements of reform is the fact that any individual, be he or she a sitting barrister, solicitor, legal academic or a sitting judge, would go through the same process. I appreciate it is a departure from what is there but it is to ensure that we have a clear and transparent process that upholds what I believe has been a good process to date and has resulted in an excellent Judiciary, which is remarked on and acknowledged as such. It is so that we continue to uphold those standards but that we have as clear and transparent a process as possible. To accept this amendment would completely remove what is a key element of reform in this legislation.
Under the Constitution, judges in courts in Ireland shall be appointed by the President. Article 13 provides that this function of the President shall be exercisable only on the advice of the Government. It is important, first and foremost, that we adhere to and interpret the Constitution and that we apply it while also having regard to international standards. That is what we have tried to do here in striking the right balance and making sure that the Government recommends that the President appoints but that we also adhere to and have regard to international standards. The advice that I have, and I want to reassure colleagues that it has not been a single engagement but a constant back and forth with the Attorney General on this, is that we have struck the right balance and that the appropriate number is three and that it allows for discretion and also acknowledges and takes on board international standards. Some would prefer that the Government had no discretion and that there was one name and that it was numbered but I firmly believe that because of the Constitution, the Government has to play a role.
Senator McDowell spoke of prohibiting or disqualifying people from going forward. Nobody is disqualified if they have the qualification but to suggest that somebody cannot, because he or she is a sitting judge, then I do not agree. If someone is qualified and suitable then he or she can put himself or herself forward, apply and go through this process. The Senator is suggesting that the Chief Justice and the Presidents of the Courts and the people - because it is not four people, it is eight plus the Attorney General - would consistently disqualify a person, and presuming that would happen and that the Chief Justice and the Presidents of the Court would stand over something like that. Again, I do not accept that. I would have confidence not just in the legal or judicial but also the lay side of the commission itself.
On the Senator's ask around the voting, to date, it has always been that decision has been taken by consensus. I do not see that changing. There can be no situation where the commission proposes nobody to the Minister unless nobody puts themselves forward, which I would never see happening. Regarding Senator Ward's amendment, which we did not get to, there should not be a casting vote by anybody. We will not accept that for the very reason that they should be decided on consensus. If a decision cannot be reached, then the members of the commission will have to work together to find that consensus. It has worked to date. There was never a situation that I am aware of, or has been since I have been in this position, where a vote has taken place. It has always worked by consensus and I believe that will continue.
On section 42 and the use of the word "may", the recommendation must be made if the Minister requests it. The Senator outlined a scenario where it has been the case to date that where a position has lain vacant and there has not been a request from the President to fill that position. The Minister may request but if there is a request not to, and to be honest the Supreme Court is the only time that has happened, for many other positions that would not arise. It simply means that if there is a situation where a vacancy is not needed to be filled then it is not but a vacancy shall be filled or a recommendation must be made if the Minister requests that recommendation.
Returning to the constitutional provision and the language that judges shall be appointed by the president, the function of the president shall be exercisable only on the advice of the Government is still very much the case here. It is still very much the case that the Government makes recommendations but that we as the Houses of the Oireachtas set out the criteria by which those names come forward to the Government and there will still be discretion there. I appreciate that we might not agree on this point but I have sought advice from and engaged with the Attorney General throughout this entire process. I am satisfied that what we have set out here fits in with, supports and is in line with our Constitution but also has regard to international standards where standards are not necessarily always upheld and where we know significant challenges and concerns arise with governments as well. It is important that we protect ourselves in that regard while also making sure that our Constitution comes first and foremost. However, I do not think that anyone is prohibited or disqualified. If someone is suitable and fits the criteria, even if they have sat on the Bench for one sitting because they have been asked by the Chief Justice, that should not mean that he or she never has to go through a process of promotion simply because he or she is a sitting judge. I just do not agree with that. If someone is seeking a promotion there should be no reason he or she would not go through the same process. If he or she is suitable and qualified then there is no reason he or she could not be recommended. Technically, a person could come through a process or apply and never be put forward but that can apply in any circumstance and to assume that the Chief Justice and others would make a conscious decision not to allow someone to go forward again is not a viable or realistic situation that might arise. For that reason, I cannot accept the amendment. To return to my first point, this is a key element of reform that we have a single, clear, transparent process that everyone can be confident in and that upholds what I believe what has been an excellent Judiciary to date and continues the process in as clear a way as possible. That would be completely removed were we to accept this amendment.
I am glad the Minister said what I suppose was blindingly obvious, which is that the Attorney General has been involved in the background discussion of the legislation. I am interested by what she said about international standards because they do vary. We only have to look to Washington to see one standard that is radically different from any other standard. We are the only major common law jurisdiction with a written constitution that provides for the mode of appointment of people to judicial office. The British can do whatever they like; the Canadians and Australians likewise. I am not sure about the position in Canada, which does have a written constitution, but I do not know on what basis the decision is made there so I must plead ignorance on that. However, if we are talking about international standards, we cannot talk about European standards because the vast majority of the European community is not a common law jurisdiction. The function of judges in European states is radically different from that in Ireland and common law countries. We have to remember that one of the most extraordinary features of our Constitution is that if a woman or man is appointed to the High Court, he or she has the right, subject to any appeal from his or heir decision, to invalidate by constitutional criteria any action of this House or of the Executive or combination of both.
That is a massive power to give to an individual man or woman sitting in the High Court as part of his or her full and original jurisdiction. It does not apply in England. There is judicial review in England but it is not by reference to a written constitution, and we hear now that the Tories are beginning to get impatient with the exercise of the non-constitutional judicial review powers. Ours is the only common law country anywhere, with the exception of the US, where an individual member of the Judiciary is empowered to strike down any action of the Legislature or the Executive as part of his or her personal single jurisdiction. When people talk about applying international standards to the appointment of judges, no other member of the European community has a system like ours. They have constitutional courts and this, that and other, but none has a situation where an Act of Parliament can be annulled by a single judge on an afternoon in the Four Courts. In no other country can an Act be declared under the Constitution to be null and void because that judge has been persuaded by the arguments put before him or her.
I am, therefore, sceptical of people saying GRECO says this or the Long Title says that. Our system is fundamentally different. I recently attended a conference in Lisbon where a member of the French council of state, its highest court, gave us an insight into how that court actually works. It is almost like a permanent Article 26 court or a permanent attorney general looking at legislation. It is a different thing. The appointment of members of the judiciary in the civil law system is different from ours. We do not have the same system as them. Of course, eligibility and governmental discretion are not laid down in those jurisdictions in the same terms as they are here.
Is the Government to be amenable to anybody at all as to why it chose person A rather than persons B or C from a list? The answer is "No". Nobody would dream of saying it should divulge who was on the list, how it was they decided it was one of the three and why they discounted the other two. People talk about transparency in this House and I agree with Senator Ward. This is not a transparent process. It is a uniform process and I agree with the Minister that it is uniform in that she is saying every candidate for every judicial position must go through exactly the same procedure, but it is not transparent and can never be transparent. We can never ask the Government why it chose Senator Martin, say, rather than Senator Ward for a High Court appointment.
Supreme Court.
Supreme Court, or whichever they are interested in. We cannot ask the Government and it cannot be compelled to answer it, and we are not entitled to know, as far as I can see, which of them was short-listed and which was not. I agree with Senator Ward and nobody is against transparency. When somebody stands up in this House and says he or she is a champion of opacity as opposed to transparency, that will be the day. I always recall Charlie McCreevy deriding openness, transparency and accountability, “the goddess OTA”. He said transparency, up to a point, is a nonsense politicians talk about and kneel before. There is not anything transparent about this. We will not know precisely how the process was decided. We will not see the marking sheets of the people who conducted the interviews, we will not see why the Government chose one of three and we will not see why, if there were ten applicants for a position as ordinary judge of the Supreme Court, why seven of them were found to be less meritorious than three.
It is not a question of transparency, and it is not a question of international standards either because the US system, which I do not suggest we should have, is radically different from ours in that the US Senate has to consider and approve, in the same way that the then Deputy, Shane Ross, once advocated when he was in opposition, a parliamentary vetting of every appointment by a committee in public. That was one of his more exotic ideas at one stage in support of his campaign against cronyism, as he saw it. We are not in that position. International standards can be Canadian, Australian or from New Zealand or wherever. To give an appalling example, the Indian constitution provides that the chief justice should be consulted on appointments to the higher courts in India, and the Indian supreme court - wait for it - ruled that the term "consulted" meant he had a veto. When the houses of parliament tried to challenge that, the supreme court went on to hold that this was one matter of such fundamental importance that the houses of parliament could not interpret the constitution in a way inconsistent with the views of the supreme court. I am making the point that if we look across the common law world even, there is not a single standard, and if we look across Europe, there is a radically different process involving judges of radically different powers.
I want to be clear about this lest anybody misunderstand what I was saying. I was not saying it was necessarily wrong that a judge should not be exempt from the same procedures as a non-judge in looking to be appointed or recommended. I was only referring to the question of eligibility as distinct from discretionary choice and making the point that any High Court or Court of Appeal judge is entitled to serve in the Court of Appeal or the Supreme Court and is deemed capable of doing so if he or she is invited to do so by the president of either of those courts. I have appeared before a High Court judge, acting up so to speak, in the Supreme Court and it is true they are eligible. No one can say, "Sorry, you haven't been appointed by the Government to be here." The statute states such a person can sit at the invitation of the Chief Justice. If they are all eligible to be appointed and to act as a judge, it seems that if we then say that to be appointed by the Government as a permanent member of the court as opposed to being invited by the President of the Court of Appeal or the Chief Justice to act on occasion in that court, a permanent position requires that the Government be restricted in whom it can appoint.
It already has appointed the person in question, or the person stands appointed.
In accordance with the order of the House today I must now ask the Senator in possession to report progress.
Progress reported; Committee to sit again.