I welcome the Minister of State, Deputy James Browne, to the House. I remind Members that this debate will adjourn at 4.30 p.m. if not previously concluded.
Judicial Appointments Commission Bill 2022: Committee Stage (Resumed)
SECTION 46
Debate resumed on amendment No. 38:
In page 31, to delete lines 27 and 28.
— (Senator Barry Ward)
This is a fairly straightforward technical amendment. The provision in section 46(1)(b) requires the commission to have interviewed an applicant when considering an application. I feel strongly that there is a practical matter to be considered here. We have discussed this before. The process for most applicants for judicial office is a sensitive one. They do not want word to be out there that they have applied for judicial office because in many circumstances it will spell an end to a practice or make things difficult for them. That is especially true if they ultimately do not achieve the office. I understand that the commission is bound by confidentiality and that other provisions in the Bill are designed to ensure there is confidentiality and secrecy around these applications. The interview process holds two difficulties. The first relates to the confidentiality I mentioned. The second is that it introduces - I have complained about this previously with respect to this Bill - a Civil Service-style approach to something that does not fit into a Civil Service-sized hole. I say that with the greatest respect to the civil servants present. The job a judge does is not merely an administrative function. In assessing whether someone is an appropriate or the most appropriate candidate for judicial office, many factors must be considered. I do not think an interview process will assist the commission in arriving at the decision. The reality is that the commission is made up of people who will be aware of the corpus of work the applicant has done. They will also be aware of the person's professional reputation or otherwise. If they are not, the application process will usually carry with it details of the person's professional achievements, records and so on. The notion that if the process does not carry with it such information, or if the commission does not have enough information, it can be gleaned from an interview is to mistake the manner in which these things can operate. In this amendment I suggest that while the commission may decide it wants to interview someone or to speak to someone in any number of circumstances or for any number of reasons that arise from the application or anything else, the notion that it is an absolute requirement before the applicant can move forward is a mistake. I suggest that the simple requirement for the commission to interview the applicant be removed and that is what my amendment proposes.
I support the Senator's amendment. I notice that the structure of section 46(1) requires a tiny bit of care. It states:
Subject to section 60, the Commission shall consider applications made in respect of a particular vacancy in a judicial office in accordance with the judicial selection statement and shall not recommend an applicant to the Minister or, if appropriate, the Minister for Foreign Affairs, for appointment or for nomination for appointment or election, as the case may be, to judicial office unless—
(a) it is satisfied [of the matters set out in the subparagraphs to paragraph (a)] .... and
(b) the Commission has interviewed the applicant.
I am slightly concerned that if the commission decides not to interview an applicant, that is it, in effect - the applicant is out. It is a strange way of dealing with it. Someone who applies for the job and could satisfy all of the criteria in paragraph (a) can effectively be sidelined by not being invited to interview and therefore would not be recommended. For someone who wants the job, to say to them "because we did not want to hear from you and did not want to talk to you, that is the end of you" is a somewhat strange outcome. I know we are dealing with different courts. It is highly unlikely that the members of the commission would have personal knowledge of the range of people who might apply to be a judge of the District Court. It is unlikely they would know them all. I speak from my experience of being on the Judicial Appointments Advisory Board when I was Attorney General.
People were applying who we did not know at all. We had no personal knowledge of them and we were simply dealing with a paper process rather than an interview process. It occurs to me that is one situation but in a situation where, for instance, eight High Court judges apply to be considered for appointment to the Court of Appeal, how will the commission say we will only interview three, four or five of them and have the others immediately sidelined and put out of the running, without even having been heard? From the point of view of the lay members of the commission, who will not know superior court judges at all, to have a situation where some of them do not even throw a dice of six to start and are out of the process, even though they are eligible on all of the criteria in respect of section 46(1)(a), seems to be misconceived. I ask the Minister of State to explain why the commission should be able to knock somebody out without even hearing them in the whole process.
I thank the Senator for his amendment. Section 46 provides for a consideration of applications and conditions for making of recommendations and under it the commission shall consider applications made in accordance with the judicial selection statement and shall not recommend an applicant to judicial office unless it is satisfied that the applicant is an eligible person; possesses the requisite knowledge, skills and attributes set out in the judicial selection statement and is of sufficient merit; is suitable on grounds of health; has complied with the requirements of section 44(1) dealing with the consents to be provided in connection with an application; has complied with the requirements of section 22 of the Standards in Public Office Act 2001, which deals with evidence of compliance with regard to tax affairs; and the commission has interviewed the applicant.
The effect of the amendment, as the Senator indicated, is to remove the requirement that the commission will have interviewed the applicant. The Senators will be aware that a regular criticism of our judicial appointments process to date is that prospective judges are not interviewed. We are entering into a different, new environment. With respect to judicial appointments, all persons wishing to be considered must come through the new commission, including judges seeking elevation. Part 5 sets out a new vision for the requirements for judicial positions in the State and, of course, abroad.
Selection processes will be overhauled by the commission. It is required to do so. Selection tests, including interviews, must be provided for. It is somewhat unclear, in a new environment where a comprehensive statement of judicial skills will be set out, how this might be assessed. It is difficult in a modern context of judicial requirements to see how the most appropriate and updated selection methods would not always be required. How interviewing might not be necessary in a range of selection methods is not evident at all. There are very few, if any, fields of selection and advancement for interviews that are not utilised, especially in the public appointments sphere. It is a more open and transparent step in assessing applicants and is complemented by the other eligibility and qualification practices we have covered.
Section 50 provides that the commission will provide the results of the interview to the Minister, along with the person's qualifications and the commission's opinion in the matter of particular recommendation. It is good balance, with technical information and the results of testing, including interview and the objective opinion of the commission. I am not prepared to drop the requirement and I cannot therefore support the amendment. I am concerned Senator McDowell's point on the commission interviewing the applicant implies that one should interview everybody that comes forward. The commission should be left with the discretion as to whether the person needs to go forth to the point of an interview.
My point arises from what Senator McDowell has raised because I share his concerns. I also understand what the Minister of State has said in that obviously the commission should not be bound to interview everyone. However, in many ways, the way to do that is to remove the requirement for it to interview anybody who is to go forward. Section 46 states the commission "shall consider applications made in respect of a particular vacancy". In that regard, every vacancy must require an interview of the candidate who will be put forward. That means that if somebody applies on ten occasions, the person must be interviewed on ten occasions. I ask the Minister of State to correct me if I am wrong. I am interested in his view. However, I do not think a person who has been previously interviewed by the commission, be he or she a sitting judge or an applicant from the Bar or solicitor profession, could rely on an earlier interview because it must be with regard to a particular vacancy. That is cumbersome in the extreme. We know there will sometimes be a succession of vacancies in a short period, for whatever reason. There is an unnecessary cumbersomeness to the requirement that somebody would have to submit himself or herself to a series of interviews because he or she was not successful the first or second time. That is why I hope the Minister of State will give consideration to the amendment.
What I am slightly mystified by is whether the process envisaged is one where the commission looks at the candidate, decides whether he or she is "eligible", "possesses the requisite knowledge", "is suitable on grounds of health", has complied with section 44(1) and section 22 and then decides the person is good but that the commission is obliged to have an interview with that person before putting him or her on the short-list. If that is the way it works, that is fine, but it does not mean that everybody who goes for the job gets a chance at being interviewed. What I find odd about that is this. Why would any High Court judge not have the right to be interviewed for a job? Is there any group of people where one could say one will not even have a chat with him or her to see whether he or she is good or bad, especially the laypeople in the group? Lay people will be in a position where they do not know. They will not have seen any of these people functioning. The first time they will lay eyes on them is when the short-list is being drawn up, if that construction of section 46 is correct. That is what worries me. The laypeople will be completely in the dark. A majority may decide to interview Senators Ward or McDowell and that is the first the laypeople will have any knowledge of how the person stood up in the flesh, so to speak, and made a good or a bad impression. That is not a good idea. I support Senator Ward's amendment. If there are to be interviews, they should be discretionary. They should not just come at the end of a process. It is obviously not intended that everybody will get an interview. Who is selected for interview will be a matter largely conducted on paper and without seeing the people at all. I find this an unsatisfactory section.
Having somebody apply on multiple occasions and having to be re-interviewed may be cumbersome but it is appropriate. It is fair in any new appointment where new applicants may also be applying for the same job that everybody be treated in a similar fashion. It is not unusual in any job interview process that some people are not called for interviews, for whatever reason. It will be up to the commission to make an assessment on the individual cases.
How stands the amendment?
I withdraw the amendment.
Is that agreed?
It is not agreed.
Are you withdrawing the amendment, Senator Ward?
I propose that the amendment be made.
Senator Ward is withdrawing the amendment.
(Interruptions).
Is Senator McDowell opposing the withdrawal of the amendment?
I am proposing that Senator Ward's amendment be made.
Do you have a seconder for that?
I second the proposal.
I do.
Senator Ward, seconded by Senator Gallagher, has proposed that the amendment be withdrawn.
I object to that.
Question put: "That leave be given to withdraw amendment No. 38."
The Committee divided: Tá, 31; Níl, 7.
Tá
- Ahearn, Garret.
- Ardagh, Catherine.
- Blaney, Niall.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Mark.
- Daly, Paul.
- Davitt, Aidan.
- Doherty, Regina.
- Dolan, Aisling.
- Gallagher, Robbie.
- Garvey, Róisín.
- Hackett, Pippa.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Reilly, Pauline.
- O'Sullivan, Ned.
- Ward, Barry.
- Wilson, Diarmuid.
Níl
- Black, Frances.
- Craughwell, Gerard P.
- Flynn, Eileen.
- Keogan, Sharon.
- McDowell, Michael.
- Mullen, Rónán.
- Wall, Mark.
Tellers: Tá, Senators Robbie Gallagher and Regina Doherty; Níl, Senators Michael McDowell and Sharon Keogan.
Question declared carried.
Question, "That section 46 stand part of the Bill", put and declared carried.
SECTION 47
Question proposed: "That section 47 stand part of the Bill."
There is an aspect of section 47 that we have to consider carefully. It states:
(1) The Commission shall, following its consideration of applications in accordance with section 46, recommend to the Minister-
(a) where there is one judicial office in the State to be filled in a court, 3 persons for appointment to that judicial office, and
(b) where there is more than one judicial office in the State to be filled in the same court, 3 persons and 2 additional persons for each second and subsequent vacancy for appointment to those judicial offices.
This means that if there were two vacancies in a court, it would be five people, and if there were three, it would have to be seven people recommended to the Government. Section 47(2) states:
Where the Commission cannot, whether by reason of the number of applicants or the operation of section 46, or both, as the case may be, recommend to the Minister the number of persons specified in subsection (1)(a) but can recommend a lesser number of persons to the Minister, it shall-
(a) recommend to the Minister that lesser number of persons, and
(b) at the same time as making that recommendation, set out in writing the reasons it is unable to recommend the number of persons specified in that subsection.
If there are no applicants, that is dealt with by section 47(4). Section 47(5) states: "The Commission shall, at the same time as making a recommendation, or informing the Minister that it cannot make a recommendation, under this section forward the name of each person who made an application in respect of the vacancy concerned." Why is that provision required? Why is it required that the Government should be told who the runners-up are, especially if the number of recommendations does not make the number of three, five or seven as the case may be? Why is the Government informed of the identity of people who for some reason or another applied for the job and failed? Is it supposed to do anything about it? Is it to take any notice of this situation? Is it to note that such and such a person has been turned down? Does it have any discretion? If the commission thought that only two people were suitable for the job from among the applicants but there were four others and it outlined their names, can the Government even in those circumstances say it wants to appoint three people to fill the vacancies in this court and note that these people applied but were not recommended? Can the Government decide that from among them it should at least be able to choose to fill the vacancies?
The answer to the last part is "No". As stated, the Government will not be in a position to appoint anybody who has not been recommended by the commission. Receiving all names will allow the Minister to assess in time the level of applications for a particular area, the range of persons applying, the professions of the applicants and whether it is likely that the diversity goals will be met. It is more for statistical purposes than anything. However, it cannot appoint anybody who has not been recommended.
How does it help the process if the Government is advised just for its information of the names of 12 people who applied but were not considered suitable? Why is the Cabinet told of the names of 12 unsuccessful people who applied and were unsuitable if it can do nothing about it as a matter of law?
It is important that the Minister can keep under review the type of applicants who are applying for different positions to see that the different goals are being met in terms of diversity and see the interest in and attractiveness of different positions. It is important for the Minister to have that information. The Government may only appoint someone who has been recommended.
This goes to the heart of the constitutionality of this legislation. For the first time the Oireachtas is saying to the Government people may be eligible for appointment and may be entirely qualified for appointment, but because the commission believes other people are more qualified, more eligible, better or more diverse, the Government may not appoint a particular person who is otherwise suitable. The Bill makes it unlawful to make that person a judge.
Does the Department appreciate that if, for instance, a vacancy for the position of Chief Justice came about unexpectedly by resignation, death, illness or whatever, as a result of this legislation, assuming that two Supreme Court judges apply and are recommended on the list and that one member of the Court of Appeal applies and is put on this shortlist of three, it becomes illegal for the Government to appoint any other serving member of the Supreme Court? Therefore, as a matter of law, when the position of Chief Justice becomes vacant, it will be illegal to appoint one of a majority in the Supreme Court to that position because a commission of four judges and four laypeople did not include them in a list. In other words, it will become illegal for a majority of the Supreme Court to be made Chief Justice every time it happens. A majority of ordinary members of the Supreme Court will be effectively made ineligible by law because at the very best only three members of the court could be on a shortlist.
There might be two members and theoretically there might be one member. However, let us be practical. Let us say that one member of the Court of Appeal is recommended and two members of the Supreme Court are recommended. For the first time in the history of the State, the Bill is proposing to make it illegal for the Government to look to a majority of members of the Supreme Court when considering who the Government wishes to be Chief Justice. I find that to be an astonishing proposition.
These people have made it to the Supreme Court; the Cabinet knows who the members of the Supreme Court are. The Cabinet is well capable of determining whom it would wish to appoint as Chief Justice. It might decide that it wants a woman on this occasion and the list may contain three men. It might want to have a liberal and is suddenly confronted by three conservatives. It becomes illegal to look to other members of the court. The Government's right under the Constitution to appoint the Chief Justice is pared down to a small minority of the existing members of the Supreme Court.
I would like to understand how that can be constitutional. The Cabinet knows all the people who are all functioning as Supreme Court judges and they have got that far. How can it be right to say that the majority of them, five or six of them, may not be considered by the Government because a body consisting of four judges and four laypeople came up with a different recommendation? It is a dramatic reversal of our constitutional order. As far as I am aware, nowhere else in the common law world has a government been prohibited as a matter of law from selecting one of the Supreme Court justices from becoming Chief Justice because other judges thought that other people were better.
The members of the Supreme Court are men and women of extraordinary talent and ability. They have been entrusted with the most far-reaching functions. It is not right to say the Cabinet may not decide which of them is to be the constitutional officer, namely, Chief Justice, because a group of judges - it will be a group of judges - have effectively determined that they are not on a list.
As a proposition of constitutional law, that is very far-reaching. I wonder why the Government will not have a constitutional referendum if it is going to curtail the powers of Government to do this and give this House and Dáil Éireann the right to tell future Governments that, every time the position of Chief Justice comes up, a majority of the Supreme Court will be ineligible to be appointed. I cannot see any reason that should be so. The previous Bill at least had a different arrangement for the positions of Chief Justice, President of the High Court and President of the Court of Appeal to reflect that fact. We are now in a position where the Judiciary will effectively select the Chief Justice. Senator Ward's proposal for anybody to have a casting vote is not acceptable. A group of four judges will effectively determine this because the four laypeople will have very little input. The group of four judges will determine who in the Supreme Court will be on the short-list of three and, by definition, say to the Government that the remainder, who are the majority of the Supreme Court, cannot lawfully be made Chief Justice. I find that an astonishing proposition of constitutional law.
It has never been alleged that a person who was made Chief Justice was unsuitable for that position. This is a solution in search of a problem. It has never been suggested that any Cabinet looking at a Supreme Court could be told that the majority of the court are now ineligible for appointment because of an Act passed by both Houses of the Oireachtas. I take this opportunity to ask that consideration be given by the President, using his powers under Article 26, to refer this to the Supreme Court to determine whether it is within the competence of these two Houses to bring about such a radical transfer of power and discretion from the Executive, elected by and answerable to the people, to a group of people who are not answerable at all to the people in any shape or form with regard to the choices or recommendations they make. That is what we are doing. We are actively saying that the people who are elected to govern and, under the Constitution, are elected to advise the President on who should be appointed, are to be divested of that function, and that people who have no accountability of any kind whatsoever to the Irish people should be given the right to exclude from eligibility to be made Chief Justice the majority of the members of that court at any given time. I think that is a terrible mistake.
I cannot understand why it is being done. I was in Cabinet when two people were made Chief Justice. I will not deal with why they were or were not made Chief Justice but it was a decision made by the Ministers at that time. It was made by a group of people selecting the person who they believed best served the Irish people as Chief Justice. In both cases, their choice was eminently correct, but it might not have been the case that either of those two people would have been selected if the matter had been handed over to a group of eight people dominated by four judges, who might or might not have different views from the Cabinet about who was most worthy of appointment to that position.
Nobody has ever explained to this House why the Government changed and abandoned the provision in the last Bill. The same Department has come with two different Bills. Why was it changed to create a situation where the majority of persons in the Supreme Court shall now become ineligible for appointment? I think it is an insult to them that, by statute, a lottery is effectively held among the members of the Supreme Court and good, sensible, reasonable candidates for the position of Chief Justice are rendered ineligible by a decision of the outgoing Chief Justice, the presidents of various courts, and one or two judges appointed by other judges. I do not see what responsibility or accountability there is in that or why that should be the case in a democracy.
I also want to make the point that it was represented to this House that this was in accordance with international norms. It is not. This Bill is not in accordance with common law norms internationally. This cannot and has not been done in Australia, New Zealand, Canada or the United States of America. If we are being told that international best practice is now represented by what happens in European Union states, leaving out Council of Europe member states for the time being, which includes countries such as Russia, they have an entirely different system. The Supreme Court in Ireland has functions which the Conseil d'État has in Paris. The German constitutional court in Karlsruhe has different functions too. It is not by any means the case that, for some reason, to stay in tune with the European norms, we must make the position of Chief Justice tenable only by somebody selected by four judges against the wishes of a majority of the Government. The common law way is for that matter to be entrusted to the Government, which is elected by the people and accountable to Dáil Éireann for the choices that it makes.
We believe this legislation is constitutional; otherwise we would not have tabled it. I will not repeat the speaking points about why we are gathering this additional information.
Regarding eligibility, all Supreme Court justices will be eligible to apply for that vacancy. The independent commission is simply making recommendations and it will not go as far as to say anybody is unsuitable to be Chief Justice. It will simply look at those applicants and decide which of them it believes are best to be recommended to the Government to choose from.
This is not just about recommendations but disqualifications for five people in the Supreme Court every time.
That is what this commission is doing. It is disqualifying the majority of the Supreme Court every time it functions, for the position of Chief Justice. It is not just making a recommendation and giving the Government a choice; it is saying: “You may not appoint the following five members of the court who are present members”, so it is a ban or disqualification, which is for the first time being brought into the Irish constitutional pantheon. I object strongly to it. Could I move the adjournment and report progress?
We have an hour to go. That will happen at 4.30 p.m.
I am sorry. I thought you were nodding at me, a Chathaoirligh.
Gabh mo leithscéal.
I am sorry about that.
Question put:
The Committee divided: Tá, 29; Níl, 4.
Tá
- Ahearn, Garret.
- Ardagh, Catherine.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Mark.
- Daly, Paul.
- Davitt, Aidan.
- Doherty, Regina.
- Dolan, Aisling.
- Gallagher, Robbie.
- Garvey, Róisín.
- Hackett, Pippa.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Sullivan, Ned.
- Ward, Barry.
- Wilson, Diarmuid.
Níl
- Keogan, Sharon.
- McDowell, Michael.
- Mullen, Rónán.
- Wall, Mark.
Tellers: Tá, Senators Robbie Gallagher and Regina Doherty; Níl, Senators Michael McDowell and Rónán Mullen.
Question declared carried.
I welcome the Clonakilty Men's Shed group to the Gallery. Its members are here with Deputy Christopher O'Sullivan.
Section 48 agreed to.
SECTION 49
Question proposed: "That section 49 stand part of the Bill."
This section provides that people who are unsuccessful applicants - those who do not see themselves in The Irish Times or the Irish Independent as having been appointed, can find out what happened, insofar as they are entitled to inquire as to whether they were recommended, and they are also entitled, if no recommendation has been made, to be informed of that fact. A person who applies is entitled to be told that none of the people who applied was considered suitable and therefore there was no recommendation. Second, a person is entitled to know if he or she was shortlisted. Could the Minister of State indicate whether that is the only information that would be given to somebody who was not given an interview? Will he or she just get a piece of paper saying he or she was not recommended, full stop? Is that what is intended?
That is my understanding, yes.
I see, yes.
Question put and agreed to.
SECTION 50
Question proposed: "That section 50 stand part of the Bill."
This section requires that: "The Commission shall, in respect of each person whom it recommends to tell the Minister", for justice in most cases, what is set out in paragraphs (a), (b) and (c). I am a bit mystified as to why paragraph (c) is there. It refers to, "the results of the interview of the person conducted, in accordance with section 46(2), by a panel of the Commission,". There will be a "result" of an interview. What does that mean? Is it that the person was interviewed? The paragraph also refers to, "the results of any other selection process conducted by the Commission in considering his or her application". What is meant by "the results of the interview"? If a person has been recommended and been found eligible, what is the "result" of the interview?
At the risk of getting into synonyms, I think it just means the outcome of the interview. It is not expanded upon other than that.
The interview is conducted by a panel. I do not know how it has a result. Presumably the panel reports to the commission what it thought or if it came to any conclusions that there was nothing much one way or the other about this person and that he or she is what he or she appears to be on paper. I am wondering what the "result" of a panel would be.
This goes back to a point we have just dealt with. Are people who are in the running to be on the short-list going to be interviewed? Is there going to be some marking system or a method of determination? In most jobs, there is a scheme of the questions that can be put. I have always wondered, in respect of persons applying to be a judge or to be promoted from the High Court to the Court of Appeal, what questions are put to them at interview. They cannot be asked how they are going to decide cases. I presume they cannot be asked questions to determine whether they are conservative or liberal. They cannot be asked questions about their gender, orientation or those kinds of things. What questions can be put to them? If the interview process is going to be fair between applicants, is there going to be a scheme of the interview questions that may be put to people, asking them why they want to be promoted or given this position? Is their response to be evaluated on the basis of credibility or comparatively to other candidates?
I am a bit mystified as to what the results of an interview process could be. It is one thing if it were simply the case that the whole of the commission, having made a decision in principle to appoint Joe or Mary Bloggs to a particular position, were to say "We better check with an interview that the appointee is a reasonably normal person." However, if the panel goes to the list of applicants and determines that they will interview the following eight people, on what basis are they going to report back to the rest of the commission that Mary Bloggs was better than Joe Bloggs or did better at interview? What does "doing better at interview" actually mean in these circumstances, especially when one gets to the position of Chief Justice? A good interview or a bad interview to become Chief Justice - I do not know what that would be.
Since we are being told the Government has to be informed of the results of an interview, what does that mean and what formality is there that a person is deemed okay or far better than the other people who were interviewed, or better in the following respects, or exhibited the following attributes at interview? I would like to know what is meant by that phrase.
If I could interrupt the Minister of State for a moment, I would like to welcome a group into the Chamber from the Centre for Democracy and Peace Building, including people from its Northern Ireland fellowship programme. You are very welcome.
The conduct of the interview process is a matter for the commission. As to the results of the interview, an outcome is that there has to be an actual recommendation. While paragraphs (a) and (b) provide for specific particulars, the Government will be making a decision between those who are recommended. Therefore, the result of the interview, its outcome, is that the persons are recommended.
Now we are getting to the nub of the issue. It is going to be an interview of a person, providing some kind of description of the person based on the interview so that the Government can take that into account. That seems to be the only purpose it serves. At interview, Mr. Justice McDowell impressed us in the following four ways-----
Not yet.
Getting notions
-----or did not impress us in the following four ways, or was whatever. If it is to be of any assistance to the Government, it would have to be some kind of a description of the interview process and the kind of impression the candidate made on the panel, which is a subset of the commission. It would have to be reduced to writing, in some respect, and sent to the Government so that it could say "they look equally good on paper but he or she did a better interview, so we will go with that person." Is that what is being envisaged?
No. The result of the interview is simply that the person is recommended, if that is the outcome. There has to be a statement that they are recommended. That is the outcome if they are recommended.
The result of the interview is that the person is recommended.
The Minister must be informed if a person is, in fact, recommended.
With respect, that is not what the section states. Clearly, if the person is recommended, he or she is on the short-list of three. The section states that the Government is to be told the result of the interview with each of the three people. If the Minister of State is going to say that this just means they are on the list in the first place, what is the purpose of the paragraph at all? If they are on a short list, they have been recommended - we know that. If the Government is entitled to see, before it makes its choice, the results of interviews carried out by each of the successfully short-listed people, what is it to be told under paragraph (c)? Is it how they performed at interview or what the interview was about?
Obviously, the commission will decide the results and what that means. While it may be implied that a person being put forward is recommended, I do not think there is any issue with a commission setting out in black and white that the person is, in fact, recommended. In something like this, simply leaving it to implication, it would be open to authoritative criticisms in such circumstances.
I do not take that at all and I do not think that is what this section means. If we look at paragraph (a), it states "a statement setting out the reasons it is of the opinion that the person is suitable for appointment". That is one thing the commission has to tell the Government. Paragraph (c) states it has to give the results of an interview, and the Minister of State will not tell us what that interview process is. He is saying it is for the commission to decide, but the Government must see the results of the interview. I am saying it cannot just be that the person's name is on the list, because the commission will have already said why it thinks the person is suitable under paragraph (a). I am trying to work out what that Government will learn from paragraph (c) that may affect its decision to choose candidate C rather than candidates B or A on the short-list.
I can only repeat what I said before. The results are a matter for the commission to decide and set out.
Hold on a second, we are making it a legal requirement for this commission to set out the results of an interview, in addition to the reasons it thinks the person is qualified. That is a legal requirement we are imposing on the commission. It is not good enough to say it is the choice of the commission. If there is a statutory interview process which, due to the withdrawal of Senator Ward's amendment, is mandatory if the Bill goes through, surely it must be the case that those words mean something and that the interview had some result. It cannot just be that the interview process ended up with the person on the short-list. If they are on the short list, it would be quite unnecessary to give the Government an indication of the results of the interview process. I think there is more intended by the draftsmen here than simply saying they are on the list and that is all you need know. Under paragraph (a), they are required to say the reasons the person is on the list. Paragraph (c) states, in addition to that, the results of the interview have to be given. It is not satisfactory to simply say that this means nothing.
I confirm nothing more is intended regarding that.
Question put and declared carried.
SECTION 51
Question proposed: "That section 51 stand part of the Bill."
This section is definitely not agreed. In my view, this is a non-constitutional section that has no merit whatsoever. Section 51 purports that: "In advising the President in relation to the appointment of a person to a judicial office in the State, the Government shall only consider for appointment those persons who have been recommended by the Commission to the Minister under section 47." The reason I did not object to section 48 is that it does not concern constitutional appointments. The Constitution is very clear that, at present, and as recently as yesterday, the choice of persons to be the subject of advice to the President for appointment as judges is a matter for the Executive. Two matters arise here. Section 51(1) is strangely phrased because it states: "the Government shall only consider for appointment those persons who have been recommended by the Commission to the Minister under section 47." This is open to the construction that a person who was previously recommended by the commission to the Minister for a similar position in the same court could be the person who has been recommended by the commission. It is not narrowed down to the particular vacancy we could be dealing with. Even if that is not the case, and I presume it is not the intention, we will now be left in a different position. The Government is currently given discretion under the Constitution, but it is now to be left with the vestiges of discretion, curiously, when the number of persons on a short list is three. Looking back to section 47, however, if the commission takes the view that it cannot recommend three people and only recommends two or one, that is the only person the Government can appoint. The effect of that is to transfer, in respect of three, two or one people, the discretion of the Government in a reducing order to a group that is not contemplated by the Constitution, namely, a group of four judges and four laypersons appointed in the manner we have seen.
I will say two things about that. The judiciary in question are two presidents of courts and two elected judges who make up the four judicial members. That group of four judges will effectively, in the main, have a veto on anybody being recommended. As I understand it, one of them would be President of the District Court and the other would be President of the Circuit Court - I may be wrong about that - and the remaining two would be other elected judges, say, for a High Court appointment. The Minister of State might indicate whether I am wrong. Who would be the four judges who would determine a High Court appointment?
The Chief Justice and the President of the Court of Appeal.
Yes. If the Chief Justice's position is vacant-----
The Supreme Court would nominate a substitute.
There would be four judges in this group, two of whom have been elected by the majority of the judiciary and two of whom hold office as presidents of two courts. They would decide whether a judge is eligible for promotion from now on. As I said in the case of the Supreme Court, we are now faced with a situation whereby, if this becomes law and has the meaning the Minister of State said it had on a previous occasion, either three or two persons would be recommended for a senior position, or possibly even one, theoretically, and the Government would be obliged to make that appointment even though other people were seeking that position. Effectively, this means that the Government's discretion is reduced to nothing, in the extreme case, or to practically nothing in the case of two or three appointments when, as I said, dealing with the ordinary membership of the Supreme Court, which has eight members. One of those members would, in effect, be in a position, along with the other judicial appointees, to determine who is or is not eligible for appointment to that job and the Government would have no discretion to appoint any of the majority of the Supreme Court.
To leave aside the constitutionality of that, I ask the Minister of State to indicate, as a matter of policy, why is it considered that the Government should not have a choice between eight ordinary members of the Supreme Court when making a decision as to who should be Chief Justice? Let us forget about the Constitution altogether. Why is it that a majority of this court will, through a decision of a group of people, only one of whom is a member of the court, be rendered ineligible? As a matter of policy, why is that important? I will go back to judges appointed in the past.
I do not want to embarrass any judges who are around now but William O'Brien Fitzgerald was appointed by the Lynch Government rather than some of the existing more prominent members of that court, including great jurists such as Judge Henchy and Judge Walsh. They said they wanted a different person, for reasons of State, to occupy that position. The reason of State was that they believed the Supreme Court at the time was being excessively activist in its approach to its jurisprudence. They wanted to insert a damper in the judicial process, which was their entitlement to do. He was an excellent Chief Justice, if somewhat unexciting. He did what he was intended to do and that was to take a conservative view of the court's function.
Looking back at people who have been appointed Chief Justice by successive Cabinets, it is a choice they make conscientiously. They think about it. They think long and hard about it. They look at the implications of one judge rather than another, liberal judges and very conservative judges, and they look at the direction of the decisions they have been making. Quite reasonably, in those circumstances, they say the court is veering too far in this direction or that direction and they want to make its president somebody who has a different view, or alternatively somebody who shares that view so as to make sure that remains the attitude of the court.
That discretion is vested in the Executive and it is a decision which elected people, accountable to Dáil Éireann, are given by the Constitution. It is a responsibility cast on them and on nobody else. I refer to the infamous Bill proposed by Shane Ross when he was in opposition. As part of his obsession with the Judiciary, he wanted to have every candidate for judicial office vetted by a committee of Dáil Éireann on which the Opposition, and I do not know how he managed this, would be in the majority. Only persons recommended by such a committee, curiously by a majority of the Opposition, would be eligible to be appointed. What is wrong with that as a method of doing this? Why not trust Deputies with the appointment of judges if you are going to trust judges and four lay people selected in the manner suggested here with that discretion?
The underlying thing is that the independence of the Judiciary has to be preserved. That is the underlying constitutional value. If it is regarded as inconsistent with the independence of the Judiciary that the Government of the day in Ireland can do what the Governments of New Zealand, Canada and Australia do, that is, recommend to their respective Governors General the name of a person to be appointed as a matter of their discretion, and if that is to be prohibited by law, that is giving the two Houses of the Oireachtas the power, effectively, to amend the Constitution. If this Bill is passed, what was the constitutional function of the Government last week will cease to be its function. I do not see where the right is vested in the two Houses of the Oireachtas to do that. If we wanted an American system whereby a judicial committee of the Senate considers a nominee and vetoes that person or does not appoint him or her, that would be in the Constitution. If we wanted to divest the Government of the power to directly appoint a judge to the extent that an American President requires concurrence of one House, that could be in the Constitution but it is not.
Is it equally open to the Oireachtas to say, as we are saying with this legislation, that the views of legal practitioners are irrelevant and may not be part of the procedure at all? The people who see these people operating on the ground dealing with litigants, who know all these things, have some insight as to what kind of judge this woman or man really is, which fellow judges do not have and lay people on this commission will never have. Are they up to the job? Are they brusque? Do they take a careful approach or a less careful approach? Are they judicial in their temperament? Those things are far better known by legal practitioners, for instance, than by fellow judges, especially when considering the appointment of practitioners to the Bench. Is the Legislature at large to decide the composition of a judicial appointments commission? If we say on this occasion that it is, and if an amendment is proposed at some later stage, it will be for the Supreme Court to decide, in the end, a challenge as to whether that amendment undermines the independence of the Judiciary. The method of selection here is not very independent.
I was at the funeral of the late Chief Justice John Murray, where the former Attorney General Paul Gallagher reminded everybody that the independence of the Judiciary is not a right vested in privilege of the judges; it is a duty they owe to the rest of society. If this commission comes up with people who, generally speaking, do not accord with the approval of the populace at large on a consistent basis, who can remove them? Who can say it got that wrong? Who would even know if it got it wrong? Who will know what decisions it made and who it excluded? From my perspective, the argument that this improves the independence of the Judiciary confuses the proposition that somehow members of the Judiciary are an elite who need not be accountable, even to their own composition. One country where something like this has happened is India, where the supreme court of that country began to take on itself massive powers and kept telling the Houses of Parliament in India that these were derived from the constitution. It then denied the Houses the right to amend the constitution to curtail these powers by saying these were so fundamental to the rule of law that they could not be amended by Parliament and they became a self-selecting group of people. The Indian constitution provided that in appointing members of the Supreme Court, the Government of India had to consult with the chief justice of that country.
The Indian chief justice and a majority of the supreme court of that country decided that term “the obligation to consult with” was the obligation to get the consent of the chief justice. They told the Indian Government that it could not appoint people that the court rejected. That is what happened in India and we are going down that road here.
Some lawyers have pointed out to me the question of how anybody will have the right to challenge this Bill if it is passed. Who could challenge it? Would a barrister with 12 years’ practice who is eligible and who applies, but is rejected, be affected by it? Is the citizenry at large affected by legislation that takes away from the government that they elect and gives an important constitutional function to a different group? Perhaps any citizen is entitled to challenge this on that basis. It may be that the President will refer this legislation to the Supreme Court under Article 26 to see whether the Supreme Court believes that it is lawful for the Oireachtas, in this particular way, to leave the Government with no discretion whatsoever. That is where we are going with this section.
It has not been justified on constitutional grounds at any point that I can see. The Government has not outlined the reasons it believes that it is lawful to trammel its discretion, or that this House and this Government can surrender a right for future governments to appoint judges in this way. Could the whole thing be repealed? Of course it could, and we will be back to square one. Is it open to the Executive of the day and the two Houses of the Oireachtas to water down the Executive’s constitutional right to determine who should or should not be Chief Justice, members of the Supreme Court and the like? I say it is not.
I have to protest the purpose of this section in the strongest possible away. With the exception of the zeal of the former Minister, Shane Ross, this legislation would never have seen the light of day. He was pressing for it, demanding it and, in his off-stage remarks, accusing the Judiciary of being effectively a self-serving crony clique, the mode of which had to be reformed in order to carry out the functions of the Government. Going back, it was something I never had to do as Attorney General or as Minister for Justice, Equality and Law Reform. I would love to see the opinions at the time when the Judicial Appointments Advisory Board was established as to how far the Executive could go in trammelling the discretion of the Government. I do not believe that at that time anybody considered that the Constitution allowed to make it unlawful for the Government to appoint an ordinary judge of the Supreme Court to be Chief Justice. For one thing, and let us be clear about this, no promotion of a judge required any outside influence at all. The Government was free to appoint any High Court judge to the Supreme Court or whatever, or any Circuit Court judge to be High Court judge, for that matter.
We are now in a position where somehow, somebody has decided that the Constitution means something different from what it used to mean at the time that the Attorney General, Dermot Gleeson, introduced the Judicial Appointments Advisory Board legislation. I have not seen where anybody says precisely why that is. Why was this not done in whenever it was – 1994 – if it is constitutional now? I do not see any excuse for a failure to tell us precisely how it comes about that there is some problem now in the perception of the Irish Judiciary that requires that a method that has served this people extremely well since the foundation of the Free State and the enactment of Bunreacht na hÉireann in 1937 is somehow defective and different people are entitled to make decisions for the Government, instead of the Government of the day.
I appreciate what Senator McDowell has said. I will not say that I agree with everything he said, but as I said on Second Stage – and I tabled an amendment in this vein – the culmination of this Bill is de facto an abdication of power from the Government to the Civil Service. Being perfectly frank, I do not understand why it is that the Government has taken the power it currently has and devolved that to people who are not elected. I say that without criticism of those people, obviously.
The reality is that our democracy and Government is made up of three branches – the Executive, the Legislature and the Judiciary. The Judiciary is equally a part of our democratic Government. The democratic element of that is introduced by the appointment of judges by the democratically elected Government. That is important.
Unfortunately, in the modern era, there is, as has been mentioned, a growing view that somehow politicians cannot possibly make decisions that are not in their self-interest, which is demonstrably not true. In fact, if one looks at the decisions that politicians make, they are invariably against their own interests, as is evidenced from this Bill. They frequently make decisions that are objectively not in their interest. They do so because they serve the people they represent, the population at large and the country in whatever way it is.
The same is true in relation to decisions on the appointment of judges. If it ain’t broke, don’t fix it. I know that there is a drive to transparency, but the reality is we are very lucky in this country – and I have said this on a number of occasions as well – to have a Judiciary that is honest, reliable and respectful of the rule of law, applies the law without fear or favour and is essentially corruption free, insofar as anybody can say that about any body of people. It is in stark contrast to other common law jurisdictions and the judiciaries in those countries. We can be enormously proud of the judges we have at every level of this country. Being perfectly honest, I do not believe this Bill will change that for the better.
The transparency drive is based in the notion that we cannot trust politicians. I regret that politicians are buying into that at one level or another. I do not understand why, in section 51, this Bill would seek to essentially remove from the Government the power to decide, of their own motion, who should become a judge. The amendment that I tabled earlier was to the effect that the Government could still exercise its franchise to appoint a member of the Judiciary outside the recommendations that came from the commission, but would have to explain why that was the case. Any number of examples have been expanded on why that might arise on any given occasion. This section is retrograde because it removes that discretion. God knows that the more discretion people have, the better it is, as a general rule.
I do not agree with Senator McDowell insofar as this is not in perpetuity. He pointed out, in fairness, that it can be repealed although I would also recognise the unreality, perhaps, of that and the fact that once a power is taken away, it is very difficult to give it back. That is why I have grave reservations about this. I am in real terms committed to supporting the Bill in the broadest way and I recognise I am part of a political party that is supporting it. However, the reservations being raised are legitimate. I ask the Minister of State to seriously consider them, if not on Committee Stage, then on Report Stage.
Former Deputy Shane Ross argued for a version of this reform on the basis of transparency and openness.
Nothing will be clearer from this as to why anybody became a judge. The unsuccessful candidates will be secret. The one thing we will know is that the Judiciary selected them, and that there were four people there as spectators, watching the process. That is what we will know from now on and we will not know who they rejected or what cliques developed among the Judiciary. We will never know those things again if this becomes law because the four laypeople will not be in a position to effectively control the process and nobody will know why decisions were really made. The formula that is in the section we were just discussing will not enlighten anybody as to why that was done. As far as transparency is concerned, this Bill will enshrine a totally secret process and hand over its operation to people who are completely unaccountable.
I am loath to halt the Senator in a view that I have much sympathy with but I ask him to report progress.
I report progress.
Progress reported; Committee to sit again.