Vol. 293 No. 1
Before we commence, I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment itself. On Report Stage, each non-Government amendment must be seconded.
Amendment No. 1 is a Government amendment and arises out of committee proceedings. Amendments Nos. 1, 3, 14, 15, 20 to 24, inclusive, 31 and 34 are related and may be discussed together by agreement. Is that agreed?
No, it is not agreed. The amendments listed are agreed but the rest are not.
We are on amendment No. 1.
I am agreeable to the grouping of amendments Nos. 1, 3, 14, 15, 20 to 24, inclusive, 31 and 34.
So, in terms of the discussion, the grouping and the amendments will be put separately.
Amendment No. 1 is a Government amendment and proposes changes to be made to the Long Title of the Bill.
The amendment is a technical amendment for the purpose of inserting two commas on either side of the phrase "by the Commission" where it appears in line 13 of page 5. The amendment was one of amendments to the Long Title suggested by Senator Ward on Committee Stage. I have asked my officials to consider these suggestions in consultation with the Parliamentary Counsel and out of that consideration arises amendment No. 1. I wish to acknowledge the Senator's eagle eye in this regard.
I will now speak to amendments Nos. 3, 14, 15, 20 to 24, inclusive, 31 and 34. On 31 January 2023, the Government made an order in exercise of the powers conferred on it by section 6 of the Ministers and Secretaries (Amendment) Act 1939. The name of the order may be cited as the Public Expenditure and Reform (Alteration of Name of Department and Title of Minister) Order 2023, SI 19 of 2023. The order came into operation on 1 February 2023 and altered the title of the Minister for Public Expenditure and Reform to that of the Minister for Public Expenditure, National Development Plan Delivery and Reform. The Office of the Parliamentary Counsel has advised that a formal amendment is now required to be made to the Bill in each case where the title of the Minister for Public Expenditure and Reform appears. The House will recall that I made reference to this matter on Committee Stage on 7 March when I signalled my intention to bring forward amendments for this purpose. The title of the Minister for Public Expenditure and Reform appears ten times in the Bill - in eight of its sections and in the Schedule to the Bill.
Amendment No. 2 is in the names of Senators McDowell, Boyhan, Keogan, Craughwell and Clonan. Amendments Nos. 2, 26 and 28 are related and may be discussed together by agreement. Is that agreed?
Not agreed.
Does the Senator wish to discuss them individually?
Does the Senator propose to discuss them individually?
Yes. I propose that they be discussed individually.
Yes, I second that.
Why would we not discuss them together?
They are different topics.
All right. Is it agreed to discuss the amendment individually?
Agreed.
Not agreed.
It is a matter for the Chair.
As they are related, it is up to the Senators. They are your amendments, if you want to discuss them individually. I have never been asked to discuss them individually when amendments have been grouped before but if you wish to discuss them individually-----
This is a matter of fundamental constitutional importance and I am not anxious to just abridge the debate by shoving everything together having one speech and the like. No, I am not prepared to do that.
All right. As they are your amendments, we will discuss them individually.
I move amendment No. 2:
In page 5, lines 14 to 22, to delete all words from and including “to” where it secondly occurs in line 14 down to and including “Europe;” in line 22.
I second the amendment.
This amendment has the purpose of removing from the Long Title of the Bill words contained at lines 14 to 22.
Those words are as follows:
... to provide for the aforementioned matters having regard to the recommendation of the Council of Europe’s Group of States against Corruption (GRECO) that the system of selection, recommendation and promotion of judges target the appointments to the most qualified and suitable candidates in a transparent way, and having regard to Recommendation CM/Rec(2010)12 of the Committee of Ministers to Member States on judges: independence, efficiency and responsibilities adopted by the Committee of Ministers on 17 November 2010, under the terms of Article 15.b of the Statute of the Council of Europe.
The words in question are, in effect, an attempt to introduce to the Long Title of this Bill, on the basis of some reference to European law, cover for the proposition that the terms of the Irish Constitution ought to be overwritten in this particular way.
It is important to state that the Council of Europe's views are not an assistance, in any sense, to the interpretation of the Irish Constitution. They are opinions and they are opinions given by a diverse body which has many member states in it with many different forms of constitution and judiciary. When you look to the GRECO document, to which I will return in a moment, you can see that it is primarily aimed at ensuring standards of integrity and honesty and at eliminating any possibility of corruption in the judiciary. That is what GRECO is about. I regard it as an insult to the Irish Judiciary that it should even be mentioned in the context of the appointment of Irish judges that these measures are somehow required to eliminate risks of corruption, lack of integrity and improper standards on the part of the Judiciary.
There has never been a case of corruption made out against a judge in Ireland, even in outline. There was the case of Mr. Justice Brian Curtin, where I, as Minister for Justice, Equality and Law Reform, had to move a motion for his impeachment, but that was nothing to do with corruption but with a personal matter and an infringement of the criminal law which was alleged against him. Looking to now, after a century of judicial activity in Ireland it has never been suggested that a member of the Irish Judiciary has acted corruptly. Yet in the Long Title of this Bill there is a reference to GRECO, the exact nature of which I will come back to later, in the context of a need for reform of the way in which Irish judges are appointed. It is a shame that such a thing should be done. That reference is only there to provide some kind of advertisement, perhaps to the Judiciary, that the provisions of this Bill on a commission were motivated by a desire on the part of the State to comply with European standards for the appointment of members of the Judiciary.
I mention the recommendation which is referred to, "Recommendation CM/Rec(2010)12".
It is notable that the document in question and the explanatory memorandum that goes with it are written in careful terms. Chapter 4 of the recommendation states, regarding the status of judges:
44. Decisions concerning the selection and career of judges should be based on objective criteria preestablished by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.
45. There should be no discrimination against judges or candidates for judicial office on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, disability, birth, sexual orientation or other status. A requirement that a judge or a candidate for judicial office must be a national of the state concerned should not be considered discriminatory.
I will halt my quotation here to state it is interesting to note that Irish law makes no such provision and does not require anybody being appointed to the Irish bench to be a citizen of Ireland.
The recommendation continues at paragraph 46, "The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers". This proposition is one that is an expression of opinion by a group of European ministers but it flies directly in the face of what is provided for in the Irish Constitution. It states that the selection of eligible persons to be judges is a matter for the Executive, that is, the Government to act on when advising the President.
The recommendation continues by stating, "With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers." This brings onto the stage the notion that the Judiciary should have a key role in selecting themselves. In Australia, New Zealand, Canada and the United States, all of the great common law countries with written constitutions like ours, no provision whatsoever is made for the selection by judges of their own colleagues or for the granting of a decision-making power regarding who should be promoted within the judiciaries of any of those states.
The case was made earlier in the debate that somehow, what we were doing was applying internationally accepted standards here. In so far as we are a common law jurisdiction and we have a common law tradition, and the role of Irish judges is fundamentally different from the role of judges in the civil law countries from which come the majority of members of the Council of Europe, it should be clearly understood that at no point has any self-respecting common law jurisdiction with a written constitution ever stated that its judiciary should self-select in order to be free from the taint of being politically appointed. There is a very good reason for this. We have a Supreme Court that consists of potentially nine but at present eight ordinary members and a Chief Justice. The Supreme Court interprets for the Irish people what their Constitution means. The Constitution means what the Supreme Court says it means in the last analysis.
That court has considerable power in that it determines the nature of the fundamental law of this land and how it can be applied in any particular circumstance. Therefore, the members of that court can have a potentially radical effect on the development of Irish society. If someone is progressive, liberal or radical in his or her intent or temperament, or in his or her approach to jurisprudential matters, and is appointed to the Supreme Court and joins a collegiate body, there is clearly the possibility that his or her outlook will determine the future characteristics of decisions of fundamental importance to citizens because they touch on the interpretation of the Constitution. A candidate may be liberal or conservative, radical or progressive, an inventive person or a person who is more inclined to be hidebound by previous decisions of the courts, a person who is notoriously pro-life or pro-choice, a person whose views on or relationship with the European Union lie one way or the other, or a person who is likely or more likely to take a view as to the extent to which the property rights, family law or education provisions of the Constitution should be interpreted in any particular way. It is obvious that such a person being appointed to the Supreme Court is not the same as anybody else being appointed.
The fallacy at the very heart of this Bill is the banal and slightly asinine proposition that everybody should be appointed on the basis of merit. In this context, "merit" does not mean anything to do with the issues I have just raised. Is a pro-life person more or less meritorious than a pro-choice person? Is the fact that somebody is notoriously pro-life or pro-choice to be considered irrelevant? Is there some other measure of merit which makes a person's views on those issues irrelevant in the decision as to whether that person should or should not be appointed to the Supreme Court?
That is the problem with this legislation. It is giving to a commission of four judges and four laypersons a role in determining which of the eligible judges of the superior courts should be in the Court of Appeal and Supreme Court, and who should become the president or Chief Justice of those courts. The commission will decide which judges should be promoted and which should be left in the courts where they are and where they have demonstrated conservative or liberal tendencies, or whatever. It is giving to the commission a choice which on the face of the Bill is to be entirely determined by merit.
In debating this Bill, I must go back to the debate on the previous Bill, which the then Minister for Justice, Charles Flanagan, was reluctantly pushing through this House. I asked at that time whether the four judges interviewing or promoting somebody could take into account issues such as philosophy, liberalism, progressiveness and all the other issues I have mentioned as they apply to the candidate in determining the meaning of "merit". At least at that stage, it was agreed that they could not, and that the four judges were not there to impose their own views on, for instance, pro-choice or pro-life matters or on the meaning of the family or family provisions in the Constitution.
That was accepted then but it is now being swept under the carpet. We are now being asked to decide whether this body, which is reduced in size from the previous Bill's proposal of eight persons, four of whom are judges, two of whom are ex officio members, subject to standing aside when the court in question does not concern one of them, and two of whom are elected by the members of the Judicial Council, will determine the future complexion of the Irish Supreme Court. They have no mandate to do it; none of them have. The present presidents of the Court of Appeal and the High Court have no mandate to do this. They were not appointed on the basis that they would come to a view about the desirability, yay or nay, of putting a liberal or conservative on to the Supreme Court. They were appointed to hold judicial office and be impartial arbiters in litigation between citizens and between citizens and the State.
Although I know many of the people involved and those likely to be the involved, it seems to me that their outlook has nothing to do with the future composition of the Supreme Court. I can go further. I can say without breaching any Cabinet confidentiality that the outlook and philosophy of persons who were under consideration for appointment to the High Court and Supreme Court - I was not there when the Court of Appeal was constituted - was something that was considered by those who made proposals at Cabinet for the selection of members of those courts. There can be no doubt about it. The Cabinet thought long and hard about who it actually wanted to appoint. The Minister for Justice and the Attorney General were obliged by the Cabinet handbook to consult with the Taoiseach, Tánaiste and leaders of the parties in the Government with regard to such appointments. It was not a matter of the Minister for Justice, which is an office I held, coming in one day and slapping down the name on the Cabinet table and saying, "I have the agreement of the Taoiseach and this is what we are doing". It was always the right and prerogative of the Cabinet to ask who that person is and what we know about him or her. That applied to appointments to the High Court in the first place and it applied to appointments to the Supreme Court.
For a certainty, the issue as to whether somebody was a social conservative or social liberal was something that was carefully considered in making the proposal for his or her nomination to Cabinet and was discussed by the people who are required by the Cabinet handbook to confer with each other before a proposal was made. Now, we are saying that Cabinet will have no function in that anymore, unless it considers that among the three people selected by the four judges for any particular appointment, it can detect a difference in outlook or philosophy or whatever at that late point.
What is more, let us suppose there were three conservative members of the Supreme Court and none of their names appear in the shortlist because the four judges have effectively left them off it. The consequence is none of them, if this Bill is to be believed, can be appointed to the position of Chief Justice. It is likewise with promotion from some lower court to the Court of Appeal or Supreme Court.
It is not simply a matter of making a recommendation and letting the Government choose from a smorgasbord of judicial temperaments in accordance with the direction the Government wants the complexion of the Supreme Court to move in. With this legislation we are doing the exact opposite. We are saying a group of people, in which the Judiciary will have a blocking vote because of the way the whole thing is structured, will have the power to exclude any member of the Judiciary from inclusion on a shortlist. Thus, we are saying a choice now open to the Government is to be put back and people the Government might prefer to appoint, for the reasons and on the bases I have just mentioned, will be withheld as potential appointees by the decision of some of their colleagues in the various courts. That is radically wrong and radically unconstitutional because it is not somehow infirm that the Cabinet of the day should determine the future direction and philosophical direction of the Supreme Court by the appointments it advises the President to make. There is nothing wrong with that.
We seem to think every decision made by the Government behind the cloak of Cabinet confidentiality is somehow infirm because it is not made in the open and because the media cannot see precisely what criteria the Cabinet took into account in deciding one person should or should not be made Chief Justice, a member of the Supreme Court, or whatever. There is a retrograde and damaging undercurrent below the GRECO considerations and across the European Council that somehow to have any discretion in the matter is to give to politicians something they will abuse, whereas the Constitution gives them that discretion.
I asked the then Minister, Charles Flanagan, whether he could give me one example of a question that could be asked at an interview of a candidate seeking promotion to the Supreme Court. Could he for instance say whether it was legitimate or not for the interviewers to ask them questions about their fundamental philosophical output about the direction of the court before making the appointment? He inclined to the view they could not and that it would be none of their business. That was at the time when the body making the appointment was one in which the Judiciary was a minority, but the principle does not change. Are the members of the judicial council entitled to take into consideration the general philosophical outlook of an applicant, including whether he or she is of the left or right, known to be pro-choice or socially conservative, or whatever it might be, when compiling their shortlist?
This legislation in draft form strongly suggests that they are not and that they cannot ask questions, the drift of which would tend to suggest that, if appointed to the court, they would tend to use their judicial power as a member of that court in future issues. However, that is the precise point the Government must have in mind when it makes an appointment. For instance, at the moment we have a housing crisis. We see in the newspapers various commentators arguing that amendment of the Constitution is needed and a referendum should be held in order to help us to deal with the housing crisis, the implication of which is that those commentators believe that the constitutional guarantees for property rights at the moment and the constitutional recognition of the right of the Oireachtas to legislate for the common good are considerations that will clearly be affected if one inquires of a judge or candidate for the Judiciary, directly or indirectly, where he or she stands, broadly speaking, on how the property rights in the Constitution should be interpreted and applied. Anybody who says that this is a non-issue in the selection of the Supreme Court, and possibly the Court of Appeal and High Court, misunderstands the constitutional function of our Judiciary. We do not have a situation under any circumstances in which the Government is obliged to be blind to the attitude and philosophy of a candidate for the Judiciary. To take an example, I am ineligible because of age but if Deputy Boyd Barrett and I were both eligible, he having done a Bar degree and having practised and I being younger, of course it is of significance where he and I are perceived by a Government to stand on issues to do with ideology, Marxist or otherwise. Of course it is a matter of significance.
I remember in my time as Attorney General or Minister for Justice - I cannot remember exactly when - a person was appointed to the House of Lords, or maybe it was the Court of Appeal, who was known to have been a member of the Communist Party in his youth and to be an active Marxist as a practising barrister. How can anybody say that a Government should not take that into account in determining whether that person should or should not be given senior office? It may be that the Government might come to the view that one Marxist out of eight in the Supreme Court would be a good thing. However, a Government might take the exact opposite view and say it does not want that person to be the swing vote on a divided court between different interpretations of the role of the State or the provisions of the Constitution.
The reason I say this is that there can be people who have radically different views and are both competent lawyers. The particular person I have in mind, and I do not want to misname him, was clearly a competent lawyer and his decisions seemed to me, as a lawyer reading his judgments, to be competent ones. However, when it comes to what happens in Ireland, that is, that the fundamental meaning of the Constitution is determined by members of the Supreme Court, the presence or absence of a person of his kin ideologically on the Supreme Court is a matter of huge consequence.
In the context of the Bill, the question arises, therefore, as to what criteria the commission is supposed, by statute, to apply to the making up of its shortlists. It is supposed to look to issues such as diversity, gender equality, capacity to speak the Irish language and factors that would make the Judiciary more reflective of the diversity of society as a whole. Those are statutory criteria it is obliged to take into account. It is then supposed to say that the decision should be made on merit after that. How is a strong capitalist more or less meritorious than a strong socialist, however? The answer is simple - merit has nothing to do with it. Both of the candidates could be perfectly intelligent people who got the same marks in their exams the whole way up and are perfectly capable of deciding a personal injuries case in exactly the same way but, when it comes to the meaning of the Constitution, one of them is highly likely to go in one broad direction when considering decisions and the other is likely to go in a diametrically opposite direction. The recommendation of the Council of Europe must be read very carefully. It states in the memorandum:
However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges [That is, people becoming judges in the first place and those receiving subsequent promotion] an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations [That is the first thing] or to express opinions [The second thing] which the relevant appointing authority follows in practice.
That is the giveaway that there was clear recognition that the most that could be expected of an advisory body was that its views would be followed in practice but not as a matter of law. If the Cabinet is given three names for an appointment to the position of Chief Justice or ordinary member of the Supreme Court but does not like those three nominations for any of the reasons I mentioned, it must, in exceptional circumstances, be free to say "No". Under the Constitution, it is the responsibility of the Cabinet, not anybody else, to make the appointment.
The recommendation of the Council of Europe states that, "the head of state [which would be the President], the government or the legislative power takes decisions". In some countries, it is necessary to get legislative approval. In the United States, the President's nominations have to be approved by the Senate judiciary committee. That is provided for in the US constitution, however. It is not something the US Senate dreamed up one afternoon or that the entire US Congress decided would be a proper amendment to the appointment of judges in America even though there is no mention of it in the constitution. It is provided for in the US constitution that it is the way in which judges of the federal courts of the United States are appointed.
I will go back to the point that no mention whatsoever is made in the American system of judges having any say, still less a veto, over the appointment of any of their number to any federal judicial position. The same applies in New Zealand. The same applies in Canada, where they have a written constitution, and in Australia. It is the Government of Australia that advises the Governor-General, and the same in New Zealand, to appoint persons to their highest courts. I think the same applies in Canada.
I have no problem with a judicial appointments commission which would make recommendations or express opinions. That is fine. However, it is an entire difficult thing to say that their opinions effectively determine the constitutional power of the Government to exercise its own discretion in these appointments. We will come to that at a later stage with other amendments, so I do not want to trespass on them. However, I want to ask that if three names, as provided for in this Bill, are somehow considered to be okay, why not five, or why not one? What rule of thumb, or constitutional slide rule, says three is enough for the Government to choose from, especially when the Government is prohibited from choosing anybody who is not on the list?
Effectively, we have to remember that the four judicial members of this body will know each other. Two of them, the President of the Court of Appeal and the President of the High Court, will be in daily communication with each other, and whoever the other two may be. The way things are stacking up, because of the pyramidal shape of the Judiciary, it is quite possible that one will have a Circuit Court judge and a District Court judge there. In effect, those four men or women will be in a position to say about anybody that, in the first place, they may never become a judge, because they will never put them on a list; second, that if they are a judge, they will go no further; and third, that if they are a judge in the superior courts, they will never be put onto the Court of Appeal or the Supreme Court. That is what we are actually providing for.
I am amused that Senator Ward's amendment has not been accepted, but it is notable that he asked what happens if the four judges go one way and the four lay people go the other way. What happens in such circumstances? The answer is that the list cannot contradict the view of the four judges, because there is no casting vote. There is no way of deciding such an impasse. A much more important question arises here. What is the likely cohesion of the four lay members regarding their knowledge of judges, and their knowledge of the outlook of judges and the like? What is going to happen with regard to them?
I believe there is nothing in the Council of Europe document which authorises a national parliament to override its constitutional arrangements. Where it states "which the relevant appointing authority follows in practice", it is using carefully chosen language. It does not state "which the appointing authority must follow" or what it is "legally bound to follow".
It is clearly put there that the practice should be that one follows the advice from such a body. There could be no constitutional objection were that kind of advice to arrive on the Cabinet table. The Government could say it knows the Supreme Court, has a good idea of the attitudes of the three people on the shortlist and, frankly, does not want to appoint any of them to the position of Chief Justice but would much prefer to select one of the other five members of the Supreme Court who it is prohibited from appointing because the Bill claims, for the Houses of the Oireachtas, the power to prohibit the Government appointing somebody whose name does not appear on the shortlist. If the carefully chosen language of the Council of Europe is that the relevant appointing authority follows in practice, which is clearly not a de jure obligation to follow it but just the expected norm, there could be no constitutional objection to this legislation. However, we have gone way past that. If the Council of Europe had wanted to say the relevant appointing authority "must follow", it would have said so. If that had been its meaning, it would have said it. Citing this opinion as a reason for the judicial commission in its present form is to misread the document in question. In any event, by any standard the opinion of the Council of Europe Ministers, no matter how firmly or universally held, cannot be something which authorises the abrogation of a constitutional discretion vested in our Government.
I want these two references removed from the Long Title because they are window dressing. They suggest in a slightly underhand way that the mandatory exclusion of the power of the Government to appoint eligible people either to the office of Chief Justice or ordinary membership of the Supreme Court, which is contained later in the legislation, is somehow required or directed by a decision of the Committee of Ministers. That is what those two references actually mean. They are not so required. I have no doubt the practice would be to follow a recommendation but, on occasion, the Government must be given the power to say it is sorry but it is not doing that; that it and not the commission bears responsibility for this appointment; and that, having watched the commission shortlist a lot of people and leave out many who it would have considered desirable appointees, the Government is now saying the group of three is not the best selection from the Supreme Court and it does not agree it should be tied to making a selection from among them. If it had been the intention of the Council of Europe that the judiciary must always select its own members and the government, no matter what is written in the member state's constitution, must always follow the judiciary's view on this matter or the judiciary's view when attached to the views of four laypersons, it would have said so. What it merely asks is that the practice should be to have regard for advice, recommendations and opinions. In this legislation we are going one unjustifiable step further and saying to the Government that a practice that is there must be made mandatory.
It should be noted that in respect of persons in the superior courts, the Judicial Appointments Advisory Board, JAAB, was never designed to give advice to the Government on those kinds of appointments. In fact, when Dermot Gleeson SC, one of our great Attorneys General, drafted an Act in 1994, he specifically provided that the JAAB should not trespass on the composition of the Supreme Court in the sense that the only way in which the board's views on that court could be relevant would be if somebody who was not a judge at all applied to the board to be recommended for appointment. There have been a few such instances. There have been very distinguished judges whom the Cabinet of the day selected from outside the existing Judiciary for inclusion as members of the Supreme Court. Those people were encouraged to apply to the JAAB and to be recommended by it. That was, to use the relevant phrase, the practice. All the Council of Europe says is that this should be the practice, but we are now saying it must be the rigid rule. That cannot be right. I have said enough in proposing the amendment.
Amendment No. 2 relates to the Long Title of the Bill, which gives a synopsis of what the Bill proposes to do and the legislation it proposes to amend. The amendment provides for the deletion of an element of the Long Title referring to the recommendation of the Group of States against Corruption, GRECO, of the European Council on the system of selection, recommendation and promotion of judges and the recommendation of the Committee of Ministers to member states on judges. Those recommendations are reflected in the content of the Bill, particularly in sections 47, 48, 51 and 52, which also reflect the engagement over a considerable period in consultations about the new procedures with both the European Commission in the context of its rule of law reports and GRECO in its review of member states.
A significant concern of the European institutions is the level of discretion a member state government might have in regard to a body with an advisory or recommending function in respect of judicial appointments. The European Court of Justice, ECJ, has made it clear in rulings that an obligation under the rule of law, as it operates in the EU, is the maintenance and enhancing of the impartiality and independence of the courts in member states. The ECJ has taken the view that because national courts, including the courts in Ireland, must implement and adjudicate on various fields of EU law, the process of appointment of judges to those courts must ensure the effective judicial protection of individual rights.
The measures in this Bill will strengthen and enhance those procedures. We must continue to safeguard the integrity of the judicial selection process in Ireland and the independence of the Judiciary. The extent of the discretion the Government will have, including on the number of recommendations made, was prepared following careful legal consideration of the relevant Committee of Ministers recommendations and the emerging jurisprudence of the ECJ and of the Constitution. A power of the Government under the Constitution to appoint a person who is not recommended by an independent advisory body is not consistent with the requirements of the rule of law in the European Union. The Minister has been advised to that effect and the Government agrees with that position. To put it another way, the possibility that the Government would appoint a person who was not recommended by an independent body would be contrary to the rule of law. The Minister has been advised that the provisions in the Bill do not compromise or impede in any way the Government power or in any way invalidate the Executive function under the Constitution to advise the President on the appointment of judges, including in circumstances where only one or two persons can be recommended. This element of the Long Title has been included as being specifically in line with the advices of the Attorney General. Consequently, I am not in favour of the amendment.
I listened carefully to what the Minister of State has said, which included the phrase "contrary to the rule of law". What rule of law? The Commission of the European Union is not competent to determine the law of the European Union. It is not its function to do so. Even though it may have rows with the Polish state about amendments to the manner in which Polish judges hold their office and the tenure accorded to them, the simple fact is that the Commission of the European Union has no function in directing that the discretion of the Irish Government under the Irish Constitution should be abrogated, diluted or confined in any way.
The simple fact is the Commission of the European Union has no function in directing that the discretion of the Government under the Constitution should be abrogated, diluted or confined in any way, any more than the Council of Europe's views on this matter are binding on the State.
More fundamental than that, when the Irish people adopted the various European treaties, no competence whatsoever was given to the institutions of the European Union to tell the Irish people they must amend their Constitution by domestic law in order to comply with the Commission's view of what the rule of law entails. The Irish people never voted for the proposition that somebody in Brussels could tell them who could be appointed judges in Ireland.
Ireland is a member state only to the extent its Constitution permits it to be a member state. The European Union is not some superior body. It is a treaty organisation. Its court, the Court of Justice of the European Union, is a treaty tribunal. It is not a European supreme court and is not entitled to abrogate or overturn provisions of the Constitution unless and until the Irish people by referendum so decide. The mere fact it may suit the European Commission in its ongoing spat with Poland and Hungary to take up positions about what it names the rule of law is irrelevant. The rule of law in Ireland is the Constitution, subject to our EU obligations but not subject to desiderata developed by the Commission, to views expressed by councils of ministers or even the European Parliament, for that matter; nor is it subject to the views of European judges congregating together. They do not determine the nature or extent of the Government’s discretion in nominating Supreme Court judges.
As I wrote in the Irish Times recently, the effect of the legislation is as follows. Let us be very clear about what will happen on the next occasion there is a vacancy in the position of Chief Justice if this Commission is up and running and its statute has not been amended – which I hope it will be, if it ever becomes law. This group - the President of the Court of Appeal, the President of the High Court and two elected judges, probably a Circuit Court judge and a District Court judge - will come up with a list of three people of the eight or nine ordinary members of the Supreme Court, which may or may not be all members of that court. There could be a High Court judge or a Court of Appeal judge. It might be that the Government will be confronted with a shortlist containing only one judge of the Supreme Court. There is no reason the Bill should be otherwise interpreted. It is possible that only one member of the Supreme Court would be recommended. It is improbable, I suppose - maybe two and one from the Court of Appeal. The Government is being told, in effect, of the ordinary members of the Supreme Court eligible to be made Chief Justice, if it is two, that six people who sit on that court, day in and day out, may not be appointed.
That is what this Bill means, and pretending that European law somehow requires that to be the case is scandalous and bogus. No concept of the rule of law and no documents being bandied about to keep President Duda and Prime Minister Orbán in check have the effect of saying that, in Ireland, henceforth, it could be the case that, of the eight ordinary members of the Supreme Court, the Government, legally, can appoint only one or two and that it would breach the law if it were to appoint any of the others. No document in Europe, whether it comes from the Council of Europe or the European Commission, warrants such a proposal. I do not trust the European Commission because it is concerned more with putting manners on the Poles and the Hungarians than with what we have had in this country, the longest continuous constitutional democracy in Europe, when other states were run as dictatorships of one kind or another. We have a Judiciary which has always been free, independent and impartial, and that has always been so by the operation of the constitutional provisions under the 1922 Constitution or the 1937 Constitution by a Government which is free to make its mind up on which person should get this job.
I look back over the history of chief justices. It is well known, since everybody concerned has now gone to meet their maker, that there was a time when the Government, under Jack Lynch, was concerned about the activism of the Supreme Court in constitutional matters. Two titans of that court, Mr. Justice Séamus Henchy and Mr. Justice Brian Walsh, were seen at the time to be very active in developing constitutional law. The Government at the time decided that it would appoint William O'Brien FitzGerald, Billy FitzGerald, to be Chief Justice. The reason he was chosen was that the Government wanted the court to take a more conservative line. Would he have been selected by this commission? No. Would the members of this commission be entitled to ask whether they are appointing a conservative or a radical? No. Can they ask any of the candidates to express their views as to how they would decide future cases? No. The Government, however, is entitled, in looking at all the candidates, to say, "We do not think that person has the same view of the development of the Constitution as we have".
It it easy to come in here and produce a pat proposition such as that the rule of law in the European Union being directed against the Poles and the Hungarians somehow involves telling us we can no longer appoint judges in the way we have done for a century - and it is a century - but there is no provision of the European treaties which entitles the institutions of Europe to have such a view. Well, they can have their views if they like, but there is no provision to impose them on other people. The Irish people were never, ever told at any time, in respect of any treaty put before them for their approval in a referendum, that one of the consequences of voting a certain way would be that somebody would stand up in the Oireachtas and say the European concept of the rule of law no longer permits the Government to select from among a majority of the Supreme Court a person to be Chief Justice but could restrict the Government to one, two or three persons, some of whom may or may not be members of that court.
It is illogical and fundamentally straining language beyond its fair use to say that this is somehow imposed on us from outside or that the European Commission has a role in assessing our system or has found fault with it. It may express views, it may think it is far far better to have an independent, self-selecting Judiciary, but unfortunately the Irish people in 1937 chose a different way to select their judges. There is nothing in the European treaties which elevates to a mandatory rule or requirement that Ireland must now abandon the system that has given us one of the best, least corrupt, most impartial and most hardworking superior court judiciaries in the EU.
The final point I will make about Europe is that I would like to be shown anywhere else where a single judge, man or woman, sitting in the equivalent of the Four Courts, can invalidate by a decision an Act of Parliament or any Act of the Government by way of judicial review. I ask to be shown anywhere in Europe where that is permitted. The members of our Judiciary are given a much more fundamental and active role than any other judges in the EU. It is not possible to walk into some palais de justice in Lyon, or somewhere like that, and say "I want an Act of Parliament invalidated". There is a Conseil d'État, which is different thing, in France. It has a role in respect of proposals for legislation. None of those systems, however, allow one individual, man or woman, to hear both sides of an argument, hear the state, and then say a proposed Bill is unconstitutional and void. None of those countries have this. This is because the adversarial common law system accredits full and original jurisdiction to high court justices to determine the validity of laws, having regard to the constitution. Nowhere else is this available in Europe now. It is not even available in England. When we consider this point and the enormity of then coming into this Chamber and telling us the Europeans want us to change the way we appoint our judges, I must say I feel a sense of shame.
Does the Minister of State have anything to add? No.
I welcome the staff and students from the Atlantic Technological University Sligo. They are all very welcome to Leinster House today and I thank them for being here.
Amendments Nos. 4 and 16 are related and may be discussed together.
I move amendment No. 4:
In page 10, to delete lines 26 to 33, and in page 11, to delete lines 1 to 7 and substitute the following:
“Membership of Commission
9. (1) The Commission shall consist of 9 members, subject to section 45, being—
(a) the Chief Justice,
(b) subject to subsection (2), the President of the Court of Appeal,
(c) 2 members of the Judicial Council nominated and appointed in accordance with section 12,
(d) the Attorney General,
(e) 2 lay members appointed under section 13, and
(f) 2 members, one of which shall be a practising solicitor and one of which shall be a practising barrister nominated and appointed in accordance with the provisions of this Part.
(2) Where the Commission is performing the function of selecting and recommending persons for appointment to judicial office in the High Court, Circuit Court or District Court, the President of the Court concerned, and not the President of the Court of Appeal, shall be the member for the purpose of performance of that function.
(3) The Chief Justice shall be the chairperson of the Commission.
(4) The General Council of the Bar of Ireland and the Law Society of Ireland shall each respectively nominate a practising barrister and a practising solicitor for appointment by the Minister for the purposes of subsection (1)(f).
(5) No person nominated and appointed under subsection (4) shall be entitled to receive any remuneration or expenses under section 14.”.
I second the amendment.
Amendments Nos. 4 and 16 are related and I propose to speak to both at this point. The present proposal in the Bill is that there should be a nine-member commission, that four of those members can be members of the Judiciary and that four should be laypersons selected in the manner provided for in the Bill. The present wording of section 9 reads:
The Commission shall consist of 9 members, subject to section 45, being—
(a) the Chief Justice,
(b) subject to subsection (2), the President of the Court of Appeal,
(c) 2 members of the Judicial Council nominated and appointed in accordance with section 12,
(d) subject to subsection (3), the Attorney General, and
(e) 4 lay members appointed under section 13.
Subsection (2) states:
(2) Where the Commission is performing the function of selecting and recommending persons for appointment to judicial office in the High Court, Circuit Court or
District Court, the President of the Court concerned, and not the President of the Court of Appeal, shall be the member for the purpose of performance of that
function.
(3) 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.
(4) The Chief Justice shall be the chairperson of the Commission.
Senator Ward tabled an amendment to deal with the situation of what happens if this commission divides four votes to four on any issue. First, it is clear from subsection (3) that the Bill in its current form proposes to have votes and, presumably, to have a vote on the composition of a shortlist. The Attorney General will be given no say if the commission divides four to four in any way on whether somebody should or should not be on the shortlist. The Attorney General is apparently entitled to discuss the matter with the other members but is not entitled to even resolve a four-four split between the members of the commission where such a situation arises. Senator Ward tabled an amendment to the effect that the chairperson should have a casting vote. Alternatively, if one gets rid of subsection (3) in respect of the Attorney General, there will always be nine voting members on the commission and one could not have a dead heat or impasse between the two sides on any issue. Why are we creating a deliberately chosen deadlock and providing for a nine-member commission of whom only eight can vote and where those eight differ evenly as to any particular decision, the commission cannot decide it? No explanation has been given as to why any body whose function it is to make a recommendation should not be able, among its own members, when divided evenly on an issue, to have some mechanism for deciding which view should prevail.
I will give the House an example of what we are dealing with here. Let us say there is unanimity on two names to be included in the shortlist of three but two of the judges and two of the lay persons go for candidate A to be put on to the shortlist and two of the judges and two of the lay members say they want candidate B. The Attorney General may or may not say he thinks A is better than B but he cannot impose his will on the either side. The commission then sits down and stares at the blotter and asks what does it do about this. This must be the only case in recent legislative history where the Oireachtas is being asked by the Government to enact legislation designed to create situations where there is deadlock between the members of a body corporate in respect of one of its central functions. I can think of absolutely no other case in any Bill, that I can call to mind at any rate, where the Government has come before the Houses of the Oireachtas and said we will create an institution which can vote on an issue but if its members are evenly divided, it cannot decide anything.
That is an extraordinary situation. It is ludicrous, to be honest. It does not bear any consideration in terms of arriving at decisions or whatever. I cannot think of any body corporate ever established by a statute with an even number of people on it, where, if there is an even division of opinion on any matter and the matter is put to a vote, the body can do nothing. That is what we are being asked to approve here.
I think this is slightly more sinister than that and that it bears this construction, which to me is a rational construction, namely, that the four judges will always be able to prevent anybody from being on a shortlist. As I said in my contribution on the previous amendment, because they would be elected by the Judicial Council, in which the great majority of members are Circuit Court and District Court judges, two of the judges will probably be a Circuit Court judge and a District Court judge, a man and a woman, one of whom was a barrister when appointed and the other of whom was a solicitor. Those two, plus the president of the court to which the appointment is being made and the Chief Justice or, where the Chief Justice is not there and particularly if he or she has ceased to be a member of the commission, has died, retired or whatever the case may be, the President of the Court of Appeal, are, between them, being given by this legislation the right to say, in respect of any person, that he or she may not become a judge. They are entitled to say in respect of any judge that he or she will not go any further in the Judiciary and will not be made president of any court because they will not put that person on a list. The four lay people can get blue in the face and the Attorney General may say this is very unsatisfactory but, in fact, the four judges will have a blocking vote if they act together in any particular case or decision. The consequence of that is that four judges are, in effect, being given the right to prevent anybody becoming a judge and the right to dictate to the Government who can and cannot be appointed to any position.
What does the amendment in our name do? First, in section 9(1)(d), it proposes to take out the words "subject to subsection (2)". Subsection (3) states: "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". We are saying we should take out the exclusion on the right of the Attorney General to vote. That is one way of getting around the gridlock of a four votes to four decision. Senator Ward's amendment simply gives the chairperson of the commission, who is normally the Chief Justice, the right to a casting vote where there is a division of opinion of four votes to four. That is the first thing that our amendment does.
I have not heard at any point or seen in print any attempted justification for this deadlock structure which has been advanced here.
A slightly sinister aspect is that it actually confers on four judges a veto. There cannot be a shortlist unless they agree all the names on it. That means that no matter what the Government thinks in respect of any appointment, in all probability a judge of the District Court, a judge of the Circuit Court, one president of the relevant court and another will between them have the right to say in respect of any other judge, "You're not being promoted. You're not being made a member of the Judiciary in the first place. You're not going to be President the High Court. You're not going be President of the Court of Appeal. You're not going to be capable of being made Chief Justice." Is it fanciful to say this? Is it fanciful to make the point there could be four and four divisions? The section in the Bill contemplates votes being dealt with in this matter. In particular, as the Attorney General is prohibited from exercising a vote, it is very clear that there can be a vote. This means that the four laypersons chosen in the way that the Bill later provides are given a blocking vote against the will of the Judiciary.
The second thing that our amendment does is to delete four laypersons appointed under section 13 and to substitute for it two laypersons appointed under section 13 and two persons one of whom shall be a practising solicitor and one of whom shall be a practising barrister nominated on appointment in accordance with the provisions of this Part. What is the point of that? The point of that is that at present the Bill stipulates one category of persons who can have no input into the competition shortlist: practising lawyers. It can be anybody who gets past the Public Appointments Commission, but it cannot be somebody who is actually seeing members of the Judiciary functioning day in day out and is seeing a Circuit Court judge, for instance, carrying out his functions and has come to a conclusion about his suitability for higher office or his capacity to deal with his work. People like that are actually in court and see these people working. They are the one category of people the Government has decided should have no input whatsoever to the selection of names for a shortlist.
Arguably they are most likely to be in the best position to express an opinion. A practising solicitor or practising barrister sees people administering justice, sees how they do their job, sees how their temperament is in reality and not in a little curriculum vitae sent into to the commission, and knows that the person is fine to do simple stuff but has huge difficulty with the complex stuff. They see that.
They know that the judge has a short fuse or that the judge is entirely amicable and decent to everyone, even perhaps to a fault. They know that. The Chief Justice does not know that. The Chief Justice has no idea, and he is chairman of this commission, as to what any individual district judge is like. None whatsoever. He probably does not even know the names of most District Court judges. He might know the names of most Circuit Court judges but now the Judiciary is expanding at such a rate that I can tell you it is a bit of a mystery. Your eyes blink sometimes, when you see the lists, and say you did not know that she or he is now in the High Court.
This is the important point. There is one group of people who day in, day out have an appreciation of what it is like to be a judge, what it is like to be dealt with by a judge, how judges interact with the public, how they interact with the law, their degree of comprehension, their understanding of legal principles, their willingness to sit late and work hard and all of those things. The one group of people who have a clear view on that are the practitioners. For some reason, between the Bill whose ghost Minister was the former Minister, Mr. Ross, and this Bill, that idea is dropped. Then there is the idea that people who are best positioned to have some input into the selection of a judge and who have the best insight into the kind of person the judge actually is when administering justice are told not merely they are not members but they may never be members of the commission. They are told there is something wrong, in principle, with allowing them to indicate their day-to-day, on-the-ground understanding of the suitability of a judge.
The Minister of State is, like myself, a member of the Bar and he knows what I am talking about. He knows what it is like to sit before a Circuit Court judge and he knows that he can form an opinion fairly quickly as to whether the judge is good, bad or indifferent, or is capable of being a High Court judge, capable of being a member of the Court of Appeal, of being promoted or whatever. I do not suggest that the Minister of State's view or my view will be infallible on these issues, but at least he would be able to throw in his tuppence worth and say that between these three or five remaining people looking for the last place on this shortlist, he could certainly tell you that candidate D should not be on that list. The judges from the superior courts could ask why that was and the Minister of State, if he was there, could say it is because he has seen the candidate, he knows how impatient the person is, how he or she rushes to judgment, how the candidate is prejudiced or whatever or that he knows the person's tendencies and the High Court would not suit him or her. He could certainly do that but, for some reason, this Government has decided that those people cannot have any input. That is all the more mysterious because in the Judicial Appointments Advisory Board there has been a representative of the Bar and a representative of the solicitors' profession. I have served on that board myself, as Attorney General, and I know from people who have served on it, as representatives of the legal profession, that they take their position very seriously, they do not attempt to run their own horses in races for judicial appointment but they do believe it is their function to inform the other people who are going to make the recommendation, under the existing advisory board system, about the reputation and the perception of the candidate among those who see that person operating as a judge.
As far as I am concerned it is an amazing slap in the face for legal practitioners to tell them we do not want them to have any hand, act or part in making that information available to a group of people who are selected on the basis that they are not legal practitioners and who are unlikely to have appeared before any of the people or been in court when any of those people have been sitting as judges. It is a slap in the face for the legal profession and it is unwarranted.
Members may want to know why, in subsection (5) we have provided that "No person nominated and appointed under subsection (4) shall be entitled to receive any remuneration or expenses under section 14". We had to do that to avoid being accused of putting down an amendment which would have the effect of imposing a charge on the Exchequer. I am equally clear that the Bar Council nominee or the Law Society nominee would not be doing it for the money or expenses; those nominees would be quite happy to do it out of the goodness of their hearts and out of a sense of professional duty to the operation of the administration of justice.
What are we dealing with? We are dealing with a body which has in-built paralysis and for which one member, though he or she can contribute to the discussion, can have no say, even in the case of a tie. We are dealing with the only body the Irish Legislature has in the past 100 years, as far as I know, created as a body corporate with a voting function and no means of resolving a difference of opinion where the members are evenly divided. We are doing all of that in the context of according to four judges a veto over any other person becoming a judge or being promoted to any position within the Judiciary. That is what section 9 is intended to bring about. The amendment that was made to deprive the Attorney General of a vote was a deliberate act because it was thought that he or she might be "political", even though he or she has to be consulted by the Minister for Justice when the matter comes before Cabinet, even on the shortlist, under the Cabinet handbook. The Attorney General can watch the proceedings as a kind of legal voyeur but can have no hand, act or part in the consummation of the decision-making process.
If anybody thought about this for long, he or she would say we should not deliberately create a situation where a body composed of even numbers has no casting vote and where one of its members, who might have a vote, may not vote, thereby creating this division. Such a person would say we should not create a situation where four people can effectively block a name, even though the other four may not really be clued in as to why this is happening. I ask the Minister of State to accept from me that this is not just a matter of selecting a shortlist of three for recommendation; this is a matter of saying, in many cases, that the people not on that list may not serve in that position and if they continue, frequently and repeatedly, not to be included on the list, they can be excluded by these four members of the Judiciary from any further development of their career. It is cronyism.
The funny thing is that the former Minister, Shane Ross, accused the legal profession of cronyism.
He accused the whole system of cronyism. He wrote a florid book that detailed how judges' children got married to one another and invited people to one another's weddings and all the rest of it. I cannot understand how we can say that four judges, who are definitely more likely to know each other than the four lay people, having a veto is a transparent or appropriate method of resolving a genuine difference of opinion between the members of the commission. How is it appropriate to deprive them of a casting vote and to deprive even the Attorney General of a say where there is a split decision among the others?
I referred earlier to the Judicial Appointments Advisory Board regime, whereby the Law Society and the Bar Council were represented and they diligently, faithfully and scrupulously advised the other members of the reputation, competence and day-to-day suitability, as far as they knew it, of a sitting member of the Judiciary regarding promotion. I cannot see any reason they should be told we do not want to hear their view. The Bill goes even further than that because if they heard that the dreadful judge, Michael McDowell, was seeking promotion, they will not even be able to intervene to prevent it. The Bill tells them they should not write letters trying to influence the result. If they knew there were two or three people in contention, and two of them were substandard and one was the obvious person, they could not write letters to intervene to state people were in danger of barking up the wrong tree. All of their knowledge will be cast into the wastepaper basket for no particular reason.
It is not as if it would be risky to allow them to have input. The Minister knows, and if not the Attorney General will tell him, that Judicial Appointments Advisory Board is greatly enhanced by the presence on it of a representative of the Bar Council and Law Society who can give this type of information. These are the reasons that lie behind the amendment. It would make a far better Bill if adopted. It would deal with the gridlock issue that has been artificially created, for the first time in Irish legislative history, denying anybody a casting vote and allowing for no means of resolving a division of equal opinion between the parties on a body corporate. In the circumstances, I have to recommend it to the House.
I welcome the opportunity to say a few words on the amendment tabled by Senator McDowell. I must say it has been very interesting to listen to him for the last number of minutes. I will vote for the Government, of course, whatever the Government decision is. I might be voting against my beliefs but I will vote with the Government. At the same time, as I have said, it has been very interesting to listen to Senator McDowell. It would seem very funny to have a corporate body with nine members, one of whom has no vote and where the other eight can have a stalemate with no way to resolve it. I was a local authority member for many years. We made various appointments to various boards. In Fine Gael, we had a system whereby a tie was decided by choosing whoever received the most second preferences. I do not know whether there is any such provision in this case or whether the eight people have just a single vote. How will they decide what to do in the event of a tie?
It seems to me that common sense has gone out the window. That point has been well illustrated by Senator McDowell. That observation does not relate only to this commission. In the public service and Civil Service as a whole, there are questions about how people are appointed through the Public Appointments Service. I spoke to a lady in the past week who told me that for preselection, a candidate fills out a form and does an interview online. The application is then fed into a computer with algorithms on it. That is how preselection is done now. It is done with computers. It does not matter how highly educated a person is or how well that person fits the available job. The candidate's fate lies with the computer. As we all know, computers are only as good as the information fed into them and the criteria that are established. When a candidate appeals after a failed application, the decision on the appeal is vague and the candidate is not provided any great detail about what emphasis was put into the computer. I know a number of people who have applied through the Public Appointments Service. They are highly educated and have a lot of experience. In my view, they would be way ahead of some of the people who were preselected but the computer let them down for various reasons. Perhaps the person concerned had a stammer or something else. I do not know what the reason was but the computer let those people down.
Over the years, I have seen technical college teachers being appointed by boards. People were giving out that there was favouritism, political influence and all those sorts of things. However, in the 30 years I have been a Senator, only once was a committee put in place to get rid of a judge. That case had nothing to do with his performance as a judge. Something else was at issue. I have not seen many bad teachers who were selected by boards. People are always giving out about various things but it is hard to get away from the knowledge that people have built up through sitting on interview boards. That is how we should approach public appointments. The elected Government of the day should not shirk the responsibility to appoint people to the top posts in the country. The Government should take the consequences that come with the people it selects or elects to those jobs. That is what the Government is there for. It is there to make those decisions. This is a cop-out. I do not agree with it even though I will be voting for it because it is a Government Bill. I believe the Government of the day should make the decisions about who takes the top jobs in this country and that it should live with the consequences for the term it is in government. The people will then deal with that Government after four or five years or whatever its term is. Senator McDowell has made some great points and it was interesting to listen to him speak about this Bill. The Minister of State will probably have an answer to my question about what happens when a stalemate arises. There is no doubt but that it will happen one day.
Amendment No. 4 is grouped with amendment No. 16. Amendment No. 4 seeks to amend section 9 by replacing it. Section 9 provides for the membership of the commission and provides, in line with the Government programme, that the commission will be chaired by the Chief Justice. It provides for an equal number of lay and judicial members, four of each. The judicial membership comprises the Chief Justice, the President of the Court of Appeal and two nominees of the Judicial Council.
Section 12 provides for a more detailed prescription for the nominees of the Judicial Council. New members will be recommended by the Public Appointments Service nominated under section 13. The Attorney General is a non-voting member.
While amendment No. 4 does not change the overall number of commission members, its overall effect would be to replace two laypersons on the commission with two legal professionals. In doing so, the lay members would be consigned to a minority position on the commission. The commission would be comprised of four judges including the Chief Justice, who would be chairing, two legal profession representatives, the Attorney General and just two lay members. That would mean it would have just two lay members out of a total of nine. That is interesting because when compared to the existing mechanism, which we have set out to reform - I refer to the Judicial Appointments Advisory Board, JAAB, arrangement, which has three lay members out of a membership of 11 - it would be a regressive step. The Government could not accept this.
The provisions of the Bill have been very carefully designed to provide a balance of membership on the commission between the judicial members and lay members. Specifically, the amendment proposes that the Law Society of Ireland and the General Council of the Bar of Ireland shall each nominate a practitioner representative, and these will be a practising solicitor or practising barrister along the lines of the current job representation. These are to replace two of the lay members. The Minister decided that a representative of each of the solicitors' practising profession and the barristers' practising profession are not essential to the functioning of the commission. Lay persons will come through a clear, transparent and expert nomination process operated by the Public Appointments Service, which is a tried and trusted process. All the judges on the commission will have been practising barristers and solicitors, as will have been the Attorney General. That is a significant background.
This is my current understanding of what applicants from the respective practitioner fields might bring to the role of judges. They would be able to copper-fasten this applied knowledge by stipulating in section 12 that one of the Judicial Council nominees must have been a practising solicitor and one must have been a practising barrister. The amendment also removes the condition that the Attorney General would be a non-voting member. That provision is important in the context of the existing section 9. It would have the effect of putting the Attorney General in a position whereby his or her vote might be a casting vote. In the context of the suggested amendment, it is just another vote being provided for and has no specific significance given the way the amendment rearranges the membership and then minimises lay involvement. I am not, therefore, in favour of adding new legal practitioner nominees, reducing lay members or providing the Attorney General with a vote, which would be the global effect of the amendment. I am, therefore, not in favour of the amendment.
The Bill in all of its elements, including in particular those relating to the composition of the commission, was drafted on the basis of careful legal consideration of the relevant committee of Ministers, of the recommendations and jurisprudence of the Court of Justice of the European Union, CJEU, and of the Constitution. This is notably the case in its inclusion of a substantial number of judges and an equal number of lay persons along with the Attorney General. This approach will serve to strongly underpin the independence of the Judiciary.
The linked amendment No. 16 proposes to provide in section 14, which deals with the terms and conditions of membership of the commission, that the term of appointment of the nominated legal professionals, whose membership is provided for under the Senators' amendment No. 4, would be three years. For the reasons stated in my argument against replacing section 9 in the manner proposed by the Senators, I cannot accept this consequential amendment either.
I am interested in what the Minister of State has said about the transparent and well-trusted method of appointing the lay members because, unfortunately, his remarks do not reflect the reality of the intention of the Government. Section 13, in respect of the proposed selection of lay members, states that the Minister will ask the Public Appointments Service "to undertake a selection process." Then, under subsection (2), the Public Appointments Service undertakes a selection process in accordance with the selection criteria and will "recommend to the Minister, from among the persons who participated in the process, those persons whom it is satisfied are suitable for appointment as lay members." Therefore, if 50 people apply, the Public Appointments Services could come up with 12 people who are suitable.
The machine will reduce it to 12 people.
Yes, it could do that. It could come up with 12 and bring those names to the Minister. Subsection (5) states that "the Minister shall appoint lay members from among the persons recommended by the Public Appointments Service under subsection (2)." We now have a situation where the Minister, who is depriving the Government of the right to choose its own people for the Judiciary, accords the Minister of the day the right to select from all the people who pass the test of suitability at the Public Appointments Service appointment stage. The Minister can choose the people he wants to be the lay members of the commission. This is a fascinating aspect of this legislation. We take the discretion away from the Government and give it to the Minister. We take the discretion to appoint people as judges away from the Government, but the Minister is entrusted, by the people who drafted this Bill, with the right to decide who among all of the suitable lay persons will actually get appointed. Why are we doing that? If it is so transparent and independent, why does a political officeholder decide who the lay persons will actually be? There is an interesting little curlicue on that as well because if we look subsection (6) provides that "The Minister shall not make an appointment under subsection (5) unless a resolution approving the appointment has been passed by each House of the Oireachtas." Therefore, the laypersons' names will be brought to this House and we will have to decide whether we are happy with the Minister's selection. The same will happen in the Dáil. Wait for the little bonus cherry on top, however.
Subsection (9) provides that "A resolution referred to in subsection (6) [which is the resolution of both Houses of the Oireachtas] shall not be required in respect of an appointment under subsection (8)." Who are the subsection (8) appointees? They are the first cohort of people to be appointed as laypersons at the establishment day. The Government is going to be able, without any scrutiny from the Houses of the Oireachtas, to appoint all the laypersons prior to the establishment day and the Minister alone can do it. The first outing for this great commission of total transparency will be one where Government appointees - Government henchmen - get all the jobs because they are the people who the Government liked most among the laypersons approved by the Public Appointments Service. How much rank hypocrisy can we have that we have this claim that these people will be chosen entirely by the Minister, and it will be above board? Yet, if 50 people apply and 20 are approved as potential candidates, the Minister of the day has the right to look at the list of 20 and say, "I will choose four". The Minister brings a Bill before the Houses of the Oireachtas and says, "Of course, you will all have a right to reject my choices; except that for the first three years of the commission, it will be my cronies who operate this system alone." That is what this Bill states. It will be the Minister's four choices who are on that commission. They will be people who were politically chosen by a political appointee. The Minister will look at the 20 names or whatever it is that comes thorough and say those are the four people that Fine Gael, Fianna Fáil or the Green Party, or all three of them, would really like out of that list. They will be the people and the other Members of the Oireachtas will not have any opportunity to comment on it because they will be the first cohort of lay appointees. Therefore, far from being an apolitical system, we will have a cohort politically chosen by a politician. He or she will choose from among a cohort of people doubtless chosen apolitically. The Minister of the day will say, "There are ten or 12 people on the list before me but I am choosing the following four, and because this is the first go of this commission, nobody gets a right to veto me in either House of the Oireachtas."
We are told that is supposed to make a clean, clear and transparent system to prevent the Government from using its own discretion. The Minister is given a discretion as to who he puts on to this commission. That is what we are voting for. This is a shocker, as people say.
It is brazen to say that we could not have a situation where the Houses of the Oireachtas would have any input into the first commission. That will be chosen in secret by the Minister from among the names. It really is brazen. I find it offensive to reason that subsection (9) comes in. Why can the Minister not ask Members of the Oireachtas to approve his nominees in public in respect of the first three years of this commission? The people who are there in the first three years will be eligible for reappointment without having to go back to the Public Appointments Commission, so one could have six years of the Minister for Justice's nominees being the four people involved. That is what we are going for here with our eyes wide open. It is really bad and it should not be permitted.
If it had been said that everybody appointed had to be approved by both Houses of the Oireachtas, that would be fine. At least that would be a political decision. The whips would be on with that. It is not as if we would all sit, the whips would be off and we would be able to make a choice. That is not going to happen. It is going be a party political, whip-driven choice as to who appears as the laypersons on this commission and it is going to be done in secret for the first commission. All of those people are going to be eligible for reappointment if the same Minister or his party is in office for the second time around. That is not worthy. Let us go back now to the GRECO and the Council of Ministers and let us see what the European Commission thinks about this little arrangement, under which there appears to be parliamentary scrutiny but there is not for the first outing, the Minister, a political person, appoints four appointees from a list and the only sanction on him is that somehow his Government supporters in both Houses of the Oireachtas might rebel and vote down his list. That is not apolitical; it is blatantly political. When I was Minister for Justice I could not have thought up a better scheme than this for ensuring my pals got on the Bench. It is disgraceful.
There is sanctimoniousness about the claim that this whole operation is making the system much fairer, more independent and impartial and much more in accordance with European standards. Are these European standards that a party political Minister for Justice chooses from among a wide range of people - his own appointees - whom the first commission can appoint in secret and, thereafter, the Minister uses the party whip to shove them through? That is supposed to be an advance. The Minister has the neck to come in here and say that appointing a practising barrister and a practising solicitor is diluting lay participation so that these four people can be politically appointed instead. It is disgraceful.
