We are resuming our consideration of the Judicial Appointments Commission Bill on amendment No. 12b, in the names of Senators McDowell, Boyhan, Clonan, Craughwell, Keogan and Mullen. It arises out of Committee proceedings and has already been discussed with amendment No. 12a. Is there a seconder for the amendment?
Judicial Appointments Commission Bill 2022: Report Stage (Resumed) and Final Stage
It cannot be moved, then.
Amendment No. 12b not moved.
Amendment No. 12c not moved.
Amendment No. 12d, in the names of Senators McDowell, Boyhan, Clonan, Craughwell, Keogan and Mullen, is on the second additional list of amendments, dated 16 May 2023, and arises out of Committee proceedings. Amendments Nos. 12d and 13 are related and may be discussed together, by agreement.
I wish to move the amendment.
Do we have a seconder?
No, so I had better call a quorum.
Notice taken that six Members were not present; House counted and six Members being present,
I move amendment No. 12d:
In page 13, to delete lines 28 to 30.
I second the amendment.
The purpose of this amendment is to remove section 13(9), which has the effect of saying the approval of the two Houses of the Oireachtas will not apply to ministerial appointments which have been made under sections 6 and 7 of the Act. The Act, as it stands, effectively states that in future the so-called laypersons will have to be on a longlist approved by the Public Appointments Service as comprising suitable people. Their names then go to the Minister, who can choose which to propose to each House of the Oireachtas. That is the standard procedure.
Unfortunately, however, it is the case that for the first number of years of the life of the commission, as a result of combining subsection (7) and section 9, the Minister will not have to seek any approval for people she proposes to appoint for the first time to this commission. Those people will be eligible for reappointment without ever having been scrutinised by Members of the Oireachtas. I cannot see any valid reason why, if on the second term of office of this commission the approval of the nominations by the Houses of the Oireachtas is a good idea, it is a bad idea in respect of the first raft of nominees. Subsection (6) reads, "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." Subsection (7) reads, "The Minister may, prior to the establishment day, designate a person or persons ... to be the first lay member or members of the Commission." Subsection (8) reads, "If, immediately before the establishment day, a person stands designated to be a first lay member under subsection (7), the person shall be taken to have been appointed as a lay member on that day." Subsection (9) reads, "A resolution referred to in subsection (6) shall not be required in respect of an appointment under subsection (8)." Effectively, the Government under this proposal gets one free go to appoint all four lay members of the commission without any Oireachtas scrutiny, and those four members are eligible for reappointment at a later stage, again without any Oireachtas scrutiny. That is a remarkable state of affairs. Why is it that people who are selected in this manner by the Minister should be made members of this commission, with no right on the part of any Member of the Houses of the Oireachtas to challenge their appointment or the choices the Minister has made?
On the previous occasion I pointed out that section 13 is not what it has been trumpeted to be. It has been claimed to be a process whereby an entirely independent group of people, the Public Appointments Service, will come up with a list and that will somehow translate into the four persons who will be the four lay members of the commission, but it is not that at all.
It may send forward a list of 20 people, and the Minister will have entire discretion to select four people from them. It will be a political choice, in the last analysis. The strange thing is that, it being a political choice, one would imagine that the first outing of this commission would be an occasion on which the four lay persons would have to be approved of, just as their successors will be in the fullness of time, by the Houses of the Oireachtas. Why is it that on the first outing for this commission, they are withdrawn from public scrutiny, especially when they are eligible for a second term without any scrutiny either? I am mystified by this, and I do not see why the Minister is insisting on subsection (9) being there. It is, in fact, a licence to appoint to this commission people who have never been the subject of Oireachtas scrutiny, and they are entitled to be reappointed at a later stage for another term.
I would like to hear the Minister's explanation as to why subsection (9) is there. It slid in under the radar. It was never adequately discussed. It has the effect of removing Oireachtas scrutiny for three to six years in respect of the lay members of the commission, and no explanation or justification has been offered publicly for the inclusion of subsection (9).
I thank the Senator. As he rightly outlined, section 13 provides for the selection and recommendation of lay members of the commission by the Public Appointments Service, PAS, for appointment by the Minister. It stipulates categories of knowledge and experience that the service shall have regard to in selecting lay members. Subsection (7) provides that the Minister may designate that a person or persons to be the first lay member or members who have been recommended by PAS prior to the established day. Subsection (9) is subject to subsection 6, where that provides that the Minister shall not appoint a lay person as a lay member of the commission unless a resolution approving the appointment has been passed by each House. Subsection (9) provides that such a resolution shall not be required, however, if a lay member or members have been designated before the establishment day as the first lay member or members under subsection (7).
Amendment No. 12, as the Senator has said, would have the effect of deleting from section 13 the power of the Minister in subsection (7) to designate a recommended person before the establishment date. What we are setting out, essentially, is that it is the case that individuals would have to come through the Public Appointments Service. A Minister, irrespective of whether they would be designated or go before the Houses, would choose from a list of names coming through the Public Appointments Service. It is not an absolute that subsection (9) would be applied this way in the first instance, but the challenge that potentially arises is if one had a scenario - and this is something that is being applied in other legislation going through the Houses at the moment - where a date had been set for the establishment of the commission. Obviously, the current commission and the process that exists now would fall on that date. We would need to ensure that a commission would be up and running. If again, for example, the Public Appointments Service, which is under a lot of pressure at the moment, with a huge amount of work being done, was not able to put forward names in time for the Dáil sitting, we might find ourselves on 1 January with names, a commission that is due to expire, or a current group of people who are working on this where it is due to expire, without an ability to put names to the Houses to establish the new commission on the date where the previous one would fall.
What we are talking about here is obviously hypothetical. It is to cover all scenarios, where an establishment date has been put in place for the commission, where one wants to ensure that it is up and running, and that there is no gap in ensuring that the process can continue. It would ensure that if the House is not sitting - and it might not be that it is in recess, but for whatever reason - one can still appoint. It is not to say that this is how this will be applied. It is not to say that this is absolutely what will happen in the first appointment process. Should a scenario arise where it is not possible to bring names before the Houses of the Oireachtas before the designated date, which I as Minister would set, then this is an option to make sure that the process is up and running, and that the commission is in place.
If we take subsections (5) and (6) together, and then subsections (7), (8) and (9) together, they can be applied thus; either the approach outlined in the former is taken or that outlined in the latter. It is to cover all bases, it is not to try to avoid or go around any process. It is to allow for the commission to be up and running should there be a scenario where names cannot be put before the House.
That really does not explain anything. In 18 months' time or however long it takes to establish this commission, if this legislation survives an Article 26 reference, we do not know who the Minister will be. We are giving to whomever will be the Minister for Justice at that time, the right to appoint people before the establishment day to be members of the commission. Section 14 states:
(4) Subject to section 19(3)—
(a) a lay member shall hold office for a period of 3 years from the date of his or her appointment, and
(b) where the lay member’s term of office expires with[in] the passage of time, he or she may be reappointed by the Minister to the Commission for one further ...[term] of 3 years without a further recommendation by the Public Appointments Service or a further resolution under section 13(6)
What this means is that the first raft of appointees, whether they are appointed before or after the designation date, can all be reappointed for a further term in the absence of any Public Appointments Service process. The Minister is asking us to take on faith that a future Minister will not, before the establishment date, appoint three members who, if that Minister remains in office, can be left there for six years without parliamentary scrutiny of any kind. Frankly, that is wholly unacceptable. The propaganda that has been delivered about the independence of these lay members is just propaganda, because they will be politically chosen. A Minister will choose four persons from, say, a group of 20 who have been approved by the Public Appointments Service to be the first four. If that Minister does that before the establishment day in order that the commission will be up and running from day one, those people can be reappointed by that Minister for a further three years without any Oireachtas scrutiny whatsoever. That is the long and the short of this. There is no way of escaping that. This is what we are being asked to put into law.
Of course, it is possible that a Minister would allow the establishment day to pass and then appoint laypersons. That is possible. However, it is equally possible - and, in fact, legislative licence is given - to do it the way I am talking about. If I were where the Minister for Justice is now, in three year's time or 18 months' time when this commission gets going, I would be able to appoint four persons from the long list on a political basis chosen by me, and I can, as long as I remain in office for three years, ensure that they are not subject to any scrutiny for a combined period of six years. That is not necessary and it is wrong. If it is a good idea that the Houses of the Oireachtas should scrutinise who these laypeople are and if it is a good idea that they require approval before they are allowed to carry out the tasks laid out for them under this legislation, then it is a good idea for it to apply to everybody, regardless of whether they are chosen before or after the establishment day. Otherwise, we are giving whomever the Minister of the day is in 18 months' time six years to stack this body with four politically chosen appointees of lay persons.
We always have to think ahead, but statute never knows who or what Minister will be in place when legislation is being passed through. However, we do have to try to plan for potential eventualities if for no reason other than a date is set with every intention that the names were to go before the Houses. That is an option available to me, as Minister, or to any other Minister who operates this.
If something were to happen such that it was not possible for those names to go before the Houses of the Oireachtas prior to the date that had been set for the old guard, shall we say, to stand down, there could be a gap where there would not be a commission in operation. Again, this is to provide options; it is not to say it is the approach that would be taken. In the same way that one cannot plan for whoever might be in office or what decisions might be taken, however, one should always, with legislation, try to plan for every potential option or scenario that may arise. Again, that is not to say this is the route that will be taken. Section 13(5) clearly states the Minister shall appoint lay members through the Public Appointments Service. It is a well established and respected service where individuals go through a rigorous process and names are provided to the Minister of the day or the organisation that seeks those recommended names. It is a system and process that is trusted. There is a process here but the purpose of the subsection is to allow for a potential scenario where it is not possible to bring the names before the Houses before the designated date. That is not to say that is what absolutely must happen here.
Amendment put:
The Seanad divided: Tá, 4; Níl, 28.
Tá
- Boyhan, Victor.
- Keogan, Sharon.
- McDowell, Michael.
- Wall, Mark.
Níl
- Ahearn, Garret.
- Ardagh, Catherine.
- Blaney, Niall.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Cummins, John.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Dooley, Timmy.
- Gallagher, Robbie.
- Hackett, Pippa.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Donovan, Denis.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Sullivan, Ned.
- Wilson, Diarmuid.
Tellers: Tá, Senators Michael McDowell and Sharon Keogan; Níl, Senators Robbie Gallagher and Joe O'Reilly.
Pursuant to Standing Order 57A, Senator Rebecca Moynihan has notified the Cathaoirleach that she is on maternity leave from 6th February to 18th August, 2023, and the Whip of the Fine Gael Group has notified the Cathaoirleach that the Fine Gael Group has entered into a voting pairing arrangement with Senator Moynihan for the duration of her maternity leave.Pursuant to Standing Order 57A, Senator Alice-Mary Higgins has notified the Cathaoirleach that she is on maternity leave from 19th June to 19th December, 2023, and accordingly has not voted in this division. Senator Ollie Crowe has notified the Cathaoirleach that he has entered into a voting pairing arrangement with Senator Higgins from 19th June to 19th August, 2023; and accordingly has not voted in this division.
Amendment declared lost.
I welcome the principal of Dundalk Grammar School, Jonathan Graham, his wife, Jane, and son, John, who are guests here today of Senator McGahon. They are most welcome to Seanad Éireann.
I move amendment No. 13:
In page 13, to delete lines 34 and 35.
I second the amendment.
Amendment put and declared lost.
Government amendment No. 14:
In page 14, lines 2 and 3, to delete “Minister for Public Expenditure and Reform” and substitute “Minister for Public Expenditure, National Development Plan Delivery and Reform”.
Amendment agreed to.
Government amendment No. 15:
In page 14, line 6, to delete “Minister for Public Expenditure and Reform” and substitute “Minister for Public Expenditure, National Development Plan Delivery and Reform”.
Amendment agreed to.
I move amendment No. 16:
In page 14, between lines 21 and 22, to insert the following:
“(6) A person appointed as a practising barrister or practising solicitor to be a member of the Commission shall hold office for a term of 3 years from the date of his or her appointment.”.
I second the amendment.
Amendment put and declared lost.
Is amendment No. 17 being moved?
Amendment No. 17 not moved.
Amendment No. 18 has been ruled out of order.
Amendment No. 18 not moved.
I move amendment No. 19:
In page 15, to delete lines 9 to 11 and substitute the following:
“(2) A committee shall consist of such and so many members as the Commission shall determine having an equal number of members who are judges and members who are not judges.”.
I second the amendment.
Amendment put and declared lost.
Government amendment No. 20:
In page 15, line 18, to delete “Minister for Public Expenditure and Reform” and substitute “Minister for Public Expenditure, National Development Plan Delivery and Reform”.
Amendment agreed to.
Government amendment No. 21:
In page 19, line 38, to delete “Minister for Public Expenditure and Reform” and substitute “Minister for Public Expenditure, National Development Plan Delivery and Reform”.
Amendment agreed to.
Government amendment No. 22:
In page 20, line 5, to delete “Minister for Public Expenditure and Reform” and substitute “Minister for Public Expenditure, National Development Plan Delivery and Reform”.
Amendment agreed to.
I move amendment No. 22a:
In page 23, after line 36, to insert the following:
Prohibition on publication of confidential information
35. (1) No person shall publish or cause to be made public whether in or outside of the State any matter, information, record or document which is or contains confidential information for the purposes of section 29 or the publication of which by a person to whom section 30 applies would be an offence under that section.
(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable—
(a) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €250,000, or imprisonment for a term not exceeding 5 years, or both.
I second the amendment.
This amendment is designed to cure a loophole in the legislation, namely, that the provisions on non-disclosure of the information relating to the appointments process are inadequate and have the effect of rendering some of the information capable of being published. If one looks at sections 29 and 30, the former restricts the revelation of material by a person who is a member of the commission or a committee, the director or a member of staff of the office and creates an offence of divulging that information. Section 30 says it applies to a person who was or is a member of the commission or a committee, or the director or a member of staff. It also prohibits the revelation of material. The problem is if that material finds its way into the hands of any third party, such as The Ditch, The Phoenix or similar, it is not an offence for it to publish same. It is not an offence to publish it outside the State, such as in Northern Ireland, the UK or to give it to Private Eye. In that respect the amendment crafted by us simply extends the duty of confidentiality to the world at large and says:
No person shall publish or cause to be made public whether in or outside of the State any matter, information, record or document which is or contains confidential information for the purposes of section 29 or the publication of which by a person to whom section 30 applies would be an offence under that section.
It also provides that a person who commits that offence is liable to the same punishments as those two provisions. If I am a reporter in RTÉ and a file comes onto my desk saying this is what happened at the commission-----
They have more to be worrying about.
They might be worried now all right. I am perfectly free to put that file out on television because it is possible other people committed no offence. Maybe they left it on a bus or did something stupid like send it to a shredder and it did not get shredded. Any person in the community is free to divulge that same information and make it public.
If we get to the stage that documentation which shows the internal running of the commission, the selection process or the marking of interviews, all that kind of stuff, finds its way into the hands of anybody who is not a member of the commission or a member of staff of the commission and they have it in their possession, there is no offence in making it public because unfortunately the two sections that are referred to are too narrowly cast. Sections 29 and 30 make it an offence for a particular class of people. A member of the commission and the members of staff of the commission, including the director, are criminalised if they can be shown beyond reasonable doubt to have leaked it.
However, if it just becomes available to the world at large in some accidental way or if it is leaked in bad faith, unfortunately the person who makes it public who is not a member of the staff of the commission and who is not a member of the commission, goes away scot-free. Is it the policy of the Department of Justice that a newspaper could publish this if it just happened to find its way onto a reporter's desk? Is that the Minister's intention? She should say it now if it is because if she does not accept this amendment, she will be leaving the door open for that in the future.
This amendment is similar to another amendment the Senator tabled to section 41 on the prohibition of canvassing. We need to ask the question as to how far we should go. We have tried to clearly state that anybody who is working on the commission or working in an office who is part of the overall process should not share that information or be careless such as leaving it on the bus or even to be bringing some of this home in a bag on the bus. They should not be so careless with information that I would deem as important - I am sure the Senator would also deem it as important. There are very clear penalties here - a fine not exceeding €50,000 or imprisonment for a term not exceeding five years or both.
We have made it clear that the fault will lie with the people who have the information, who are dealing with the information or who are processing the information. At the moment information can make its way to the media even though it should not be there. However, we do not criminalise or sanction newspapers, radio or television. Where that is the case, the fault lies squarely with Members of the Houses. That is what we are applying here. The same applies to the later amendment on canvassing. How far out should we go in this regard? I believe what we have here should be prohibitive enough for those on the commission or working in an office who will be handling this paper. It should ensure they are careful with the information they have and that they do not leave it on a bus, to use the Senator's example, or that they do not leak it to somebody else.
While there will be a team of people working here, it will be a small group of people. It will not be 100 people who will be engaging in this. It will be the commission, those working in that office and those who are there to support it. Being able to identify if there was a leak or if somebody goes directly to a paper is probably something that can be done. It is just to look at how far out we should go. I believe that what we have here, a fine of €50,000 and imprisonment of up to five years - I hope we would never get to the point where that would actually happen - is sufficient to prevent somebody from leaking this or to prevent somebody from mishandling or not being careful with the information that they have because it is obviously very sensitive information to start with.
I regret that response from the Minister. To compare this to Cabinet confidentiality is nonsensical. Cabinet confidentiality applies to many things and it can be breached by a Minister who just briefs a journalist and the journalist is free to say that the Green Party at Cabinet was opposed to this, the Fianna Fáil members were opposed to that or the Fine Gael members supported something else. That can of course be breached. However, here we are dealing with something which the Minister is saying merits a sentence of five years imprisonment in the legislation. A member of An Garda Síochána can without warrant arrest a person they suspect of having committed this offence. A person found to have deliberately leaked it can be fined €50,000. However, the person to whom it has been leaked can then publish it freely.
The Minister just said that. She said she does not want to criminalise anybody who gets this information and puts it on the front of a newspaper. I really get angry when I think about what the Minister just said, which is that a newspaper reporter who has this material is free to put it on the front page of the Irish Independent or The Irish Times without any penalty whatsoever. The Minister said the amendment casts the net too widely. Who does the damage? The person who slips the information to the reporter publishes it to one person. If a person goes on "Prime Time" and says that this is what happened and that Judge So-and-so was turned down by a narrow majority of the judicial appointments commission or that a senior partner in a large solicitors' firm applied to be a judge and was flung out on his ear as totally unsuitable, the Minister is saying that can be published once it comes into the hands of a media source by whatever means. The damage is done by its publication. That is what this amendment is about. It is not about breaking confidence. That is one bad thing but the real damage is done if people who apply to the judicial appointments commission to be recommended find that a newspaper can simply fling that information out into the public because it arrived on its court reporter's desk in a brown paper envelope.
Is there anything wrong with my amendment? Does the Minister really want to say that it is casting the net too widely and that somebody on the commission can go to jail if they do this but that anybody who receives information is scot-free to publish it? You cannot use conspiracy, aiding and abetting or any other offence because what will happen is that the information will come to a reporter on "Prime Time" in a brown paper envelope with a note saying "Here is the file." It will not be traceable. The receiver will claim journalistic privilege and do all of these things and damage will be done if the process is made public. I would bet my bottom dollar that any newspaper editor who got that material would go for it in a big way. It would tell the Irish people precisely what is happening behind the scenes and that Ms Justice So-and-so was considered an inadequate judge to be promoted, that Mr. So-and-so was considered an inadequate barrister to be made a judge or that a partner in one of our largest solicitors' firms was considered wholly unsuitable to be a judge. That is the kind of information that, if it were to come out, newspapers and the media in general would go for without any doubt. They will not be committing the offence of conspiracy or aiding and abetting anything. They will simply be publishing something given to them. Under the protection of journalists' sources and all the rest of it, they will just simply publish.
I implore the Minister to accept this amendment. If this whole Bill ends up in the Supreme Court and the judges are considering the debates and what went on in this House, what does the Minister believe they will think of this? What numbing effect will it have on applications to the judicial appointments commission that, if material comes available by any chance, everyone but those who did the actual leaking are free to publicise it and put it on the front of a newspaper? I really think this is a very damaging loophole in the Bill as it is before us. I really implore the Minister to accept the amendment.
The Senator is right; the damage is done by the time it is published. That is why we are trying to prevent it from being published.
To be published means it is in the newspapers.
No, it does not. If it is published, the damage has been done.
We are trying to prevent it from getting to that stage. We have a €50,000 fine and the potential for five years in prison. The fault lies squarely with the person who shares the information. It is not just "Prime Time", the Irish Independent or the Daily Mail. What happens if somebody finds such material on a bus and decides to share it on Facebook, as does the next person and the next until 50,000 people share it?
Are we then going to hold each and every one of them responsible, fine them, charge them and apply this €250,000? The responsibility lies solely with the people who have this information, as it should. It should not be just "Well if this happens and "Prime Time" receives this". We live in a digital era. We live in a world where somebody says something and it is seen by millions of people and repeated millions of times. One has to look at that logic when applying this. It is not just about the newspapers being sold; it is about social media and how far to cast the net out. The idea that every single person who shared it or put it into print or online would have all of these fines casts it too far out. It has to be that the responsibility lies with the person who slips it to the reporter, who leaves it on the bus or who puts the information out there.
If they do not want to work in an office or be part of a team where they can contribute to and make sure that there is confidentiality here, then they should not be part of that team. To my knowledge to date, people working in the Judicial Appointments Advisory Board - those working with any of the people who will actually be sitting on this commission - respect their job and the role that they work in. On the idea that this would be shared - it has not happened to date. We are speaking hypothetically.
Again, the responsibility must lie with the person who shared it. That is what we are trying to do here. I just do not see how, in the era that we live in, you could fine potentially thousands of people for sharing something. That is what happens and we cannot prevent it from happening. Sometimes you would love to stop it from exploding the way it does, but we cannot prevent that from happening. Legislating for it in that way is not the right way to do it.
The person who leaks it to another individual, the person who leaves it on the street and the person who puts it in a brown envelope and gives it to a journalist does very little damage. It is the person who publishes it who does all the damage.
Amendment put and declared lost.
Government amendment No. 23:
In page 24, line 10, to delete “Minister for Public Expenditure and Reform” and substitute “Minister for Public Expenditure, National Development Plan Delivery and Reform”.
Amendment agreed to.
Government amendment No. 24:
In page 24, line 37, to delete “Minister for Public Expenditure and Reform” and substitute “Minister for Public Expenditure, National Development Plan Delivery and Reform”.
Amendment agreed to.
Amendment No. 25 is ruled out of order.
Amendment No. 25 not moved.
Amendment No. a25a in the names of Senators Ward and McGahon is on the third additional list of amendments dated 4 July 2023 and arises out of committee proceedings.
Amendment No. a25a not moved.
I move amendment No. 25a:
In page 27, line 18, to delete “An applicant” and substitute “A person, including an applicant,”.
I second the amendment.
This amendment seeks to extend what is provided for on page 27, line 18 to any person, not merely an applicant. The present text reads that an applicant shall not, in relation to the process of selection and recommendation, including any step and so on, canvas or attempt to influence part of the decision. Again, is it legitimate for the applicant’s wife or husband to do it? Is it permissible for a Deputy to do it? Is it permissible for anybody except the applicant to canvas an appointment? This is a perfectly straightforward amendment and I appeal to the Minister to consider that if she wants to stop canvassing, she should extend the prohibition to people who are not the applicant themselves.
The approach taken here is somewhat similar to the previous approach with regard to how far you cast out the net.
Generally, when we talk about canvassing prohibition, it would normally apply to the person himself or herself who was seeking appointment, whatever role is being talked about. Whether it is through the Public Appointments Service or otherwise, it would generally apply to the applicant and that is the approach we are taking here - that you do not cast the net out so wide. There might be instances where people are canvassing without even the knowledge of the person, or they might say they are not canvassing but they say that, based on their knowledge, somebody might be good at what they are doing. It is important we are clear that the person who is seeking the appointment is the person who should not be canvassing. As I said, it is a question of how far the net goes. What we are trying to do here is make sure it focuses solely on the person who is seeking the appointment because that is generally how it applies in most scenarios.
It now means, for instance, that a judge who is pally with another judge is free to go to judges who are on the Judicial Appointments Commission and say, “Judge Michael McDowell is really the person we need”, so anybody is entitled to canvass in my favour except me or somebody I procure to do it. Is that really what the Minister wants, namely, that members of the Judiciary can canvass the judicial members of the commission and urge them strongly to appoint one person rather than another, and that is legitimate, or that the chairman of the Bar can do it, or that people can have their favourites in the race and go to members of the Judicial Council and do this? I do not see the logic for this. A person cannot ask himself or herself, and it is probably the least worrying thing, for example, to have somebody say, “I am going for a job; any chance that I will get it?” That is far less damaging to the process than saying that any other judge can get involved in lobbying on behalf of a particular judge as long as he or she is not instructed to do so by the judge himself or herself.
That is a recipe for a mess. It is not well thought through. This is not casting the net too wide. The purpose of this is simply to say to members of the commission that they should not entertain any canvassing. The purpose of it is to impose a summary conviction fine on anybody who opens his or her mouth on his or her own behalf but it is to leave everybody else free to put in their oar and try to influence the outcome.
I do not understand how any Department can put this legislation before the people in that form and say it is okay for ten judges to go to the Chief Justice and say, “We want Judge Gerry Horkan to be promoted to the Supreme Court”, but it is not okay for Gerry Horkan, if he meets the Chief Justice, to say, “I would love that job.” I do not understand how any serious Department can put this before this House and say that is the way it wants the law to be.
On this idea of spreading the net too wide, it is not. It is saying to everybody to keep their hands off, and that this is a process where they do not get involved in canvassing for anybody.
Hear, hear.
That is the purpose. If that is the purpose, then let us make it very clear that by simply changing two words, any person who does that, including an applicant, commits that offence. That will stop all canvassing of the kind the Minister is trying to stop.
Again, there is a mulishness in regard to this Bill. No amendments at all are taken from this side of the House – nothing. If it were not for the fact that the Minister's name was wrong, this would already have been through both Houses. The Minister has to go back to the Dáil in the autumn and the reason she has to go back to the Dáil in the autumn is that she does not want an Article 26 reference before the summer. So be it, but I cannot see why somebody would not accept the proposition that it is equally wrong for ten judges to go to the Chief Justice and say, “We want X appointed to our court”, as it is for that person himself to say, “I would really like to be a member of that court.” It just does not make sense. It is nonsense.
It is shameful that it has not been picked up. A simple amendment, tendered in good faith, is just cast aside because it is spreading the net too wide - is it? The Minister already said this afternoon that it is fine for a journalist to publish confidential information if he or she gets it. Is it fine, now, for members of the Judiciary to canvass the Chief Justice in favour of a particular judge? If it is, that is fine; I accept that. If it is not, I ask the Minister to please accept this amendment. Her dignity does not require that she reject every amendment.
I have not said it is fine for people to publish. In fact, I said the opposite - that we want to prevent it getting into the hands of people who would publish it. That is why there were such severe penalties in the previous iteration. In relation to canvassing, we are putting in place a very clear structure and a system in which the commission must outline the process it goes through, the requirements and types of skills people must have and there will be an interview process. There will be a very clear, open and transparent system as to how judges are appointed. If somebody says they know a person and thinks they would be a good judge, is that canvassing? Is an individual procuring somebody and asking them to go to a member of the commission and say he or she would make an excellent judge? Where does one draw the line? How does one decide what is canvassing and what is not? An individual, very clearly, seeking to influence, directly or indirectly, is the net we have cast and the parameter I have put around canvassing in section 41 of this Bill. There is a very clear process; whether it is a member of the Judiciary or the lay profession on the commission, they must go through a clear process, along with an interview structure, which did not exist previously. I believe they will make their recommendations based on that process.
Senator McDowell has contributed twice, as I understand it.
I am replying. I think I am entitled to a reply.
I am entitled to reply to what I heard. The Minister said it is all right for ten judges to go to the Chief Justice and lobby on behalf of one of their colleagues to be appointed. She said it would be spreading the net too wide to stop that. She said it is open to people to write to the commission, who have nothing to do with the judge, urging it to appoint one person rather than another. She also said it is all right for Members of the Oireachtas to canvass the members - including laypersons - in favour of a particular person or to communicate with them, other than through the process. That is what the Minister said. If somebody cannot attempt to canvass support for his or her application from anybody involved in the process, why is it legitimate for people outside the process to seek to influence it, especially people with positions of power and influence, such as Members of Oireachtas, Ministers, judges and the like, who are not that person? I cannot see any logic for not accepting this amendment, which was tendered in good faith on the basis that this was too narrow. If it is to be the law, hereafter, that ten judges can go to the Chief Justice and say that Ms Justice So-and-so should or should not get a job by way of promotion or that so-and-so should or should not and if that is to be the accepted legal status and the only person who cannot urge their candidacy on the Chief Justice is the person himself or herself or somebody acting on his or her behalf, so be it. It only weakens this Bill even more to say that is to be the law from now on.
Amendment put and declared lost.
I move amendment No. 26:
In page 28, between lines 28 and 29, to insert the following:
"Right of Government to advise President: consequential vacancies
43. Nothing in this Part affects, limits or inhibits the right of the Government in any case where it advises the President to appoint any member of the Supreme Court, the Court of Appeal, or the High Court to any judicial office in any of those courts to appoint any other such member to the vacancy thereby created without seeking any recommendation from the Commission.".
I second the amendment.
Again, the purpose of this amendment is to rescue the Bill from nonsense. It was pointed out to the then Minister, Deputy Flanagan, that the previous Bill contained the same mistake. If the Government appoints a member of the Court of Appeal or an ordinary member of the Supreme Court to be Chief Justice, a string of vacancies can arise as a result. At present, it is perfectly open to the Government to say that someone has been appointed to the Court of Appeal, which means there is a vacancy and that so-and-so will be moved from the High Court to the Court of Appeal to fill it. This can be done in an afternoon.
There can be three links in the chain. When this becomes law, if it were ever to do so, it would mean that if a vacancy were filled one afternoon at the Cabinet it must then start from the very beginning the whole process of filling the vacancy thereby created. To take an example, currently, if an ordinary member of the Supreme Court was made Chief Justice on the retirement of the Chief Justice, if a member of the Court of Appeal was considered by the Cabinet to be somebody who should be appointed to the Supreme Court and if a judge of the High Court was considered as someone to be appointed to the Court of Appeal in turn, the Cabinet could go through all three steps in one afternoon. As I see the matter, it will take between two and three months on a very favourable view to go through the entire process with advertising, interviewing all of the candidates and having meetings for each step. It means the series of vacancies will take nine months to resolve. It could be six months.
What I cannot understand about the Bill is that it was deliberately crafted to state that there cannot be standing applications. High Court judges cannot ask to be considered as candidates for vacancies that arise in the Court of Appeal. They cannot do this. There cannot be standing applications under the Bill because it has been crafted to state the only occasion on which the process starts is when the vacancy arises. At present, the Judicial Appointments Advisory Board, JAAB, takes existing applications and moves with them. It does not tell people that they have to start again and go back over everything. It does not interview everybody again. It has a much lighter touch approval or disapproval mechanism. If a vacancy arises at present, JAAB can state that it already has 20 names but that it can place an advertisement if the Government is not content to make an internal promotion within the Judiciary.
The Bill requires a rigid sequential system whereby one vacancy is filled and if this creates another vacancy, the Minister will have to inform the judicial appointments commission of the situation, which will have to advertise the position. It cannot take old applications out of the shoe box and look at them. It cannot look at the person who came fourth in the run-up to a shortlist of three on the previous occasion and state that the individual in question will do. There will be none of that. I find it very difficult to understand how anybody who has any practical knowledge of how the system works would say that the Government cannot fill three positions in an afternoon. That is the situation at present.
If it is necessary, which I do not believe it is, for existing members of the Judiciary to start filling out forms every time a vacancy arises, so be it.
However, I would imagine that a Court of Appeal judge should be able to say via letter that he or she would like to be considered if there is a vacancy in the Supreme Court and would be interviewed for it if the Government wanted, but that he or she did not want to start filling out essays about himself or herself every time there was a vacancy requiring a separate application. The Government might well decide to appoint the President of the Court of Appeal in the event of a vacancy in the Supreme Court because it does not want to complicate life and the president is the person it wants to appoint. This is what would happen currently. Now, however, all of that is to be swept aside. This amendment would avoid that.
We discussed this matter previously. The Senator referred to the sequencing and the time it took to make various appointments. In practice, the Judicial Appointments Advisory Board, JAAB, issues a call for applications annually. It provides-----
It does not interview anyone.
No, but it does issue the call and provides recommendations to the Minister from the pool of applicants. Each new vacancy requires new recommendations from JAAB, so there is still that pool. If I, as Minister, request a new JAAB for a new vacancy that arises, it is good practice. That is what we are trying to continue here by proposing names for a specific vacancy. For example, if someone with a particular expertise in court is promoted or retires, we want to be able to fill that need in commercial court, family court or whatever the case may be.
It is important that we have new lists or recommendations. Section 43(1) requires a person wishing to be considered to make an application to the commission. Section 42(3) states that the commission shall issue this invitation when the Minister has requested the commission to make recommendations or when the commission anticipates a vacancy in judicial office. This allows the commission, if it wishes, to operate annual calls in the same manner that JAAB does currently, meaning that it would not have to go back to the very start and organise competitions and interview processes each time. Whether it wants to issue an invitation at the start of the year for applications to, for example, the office of High Court justice will be a matter for the commission to decide. One could reasonably anticipate that there would be a vacancy in the High Court at some point during the year and that the Minister might seek to have a number of names put forward. What we are applying in this provision is the same logic that applies to JAAB. JAAB might decide not to do it that way, but it is often the case that it issues a call on an annual basis. People apply to it and JAAB has their applications to work through if the Minister seeks names or if a vacancy arises. That is what is provided for in the Bill in order that there will not be the lengthy time the Senator mentioned.
I agree with the Senator regarding someone having to start the process again for each vacancy that arises. There could be a situation where I brought to the Cabinet three names for three different courts, with two of those being elevations, only for other vacancies to have to be filled suddenly. To have to start the whole process again would delay matters, particularly when our Judiciary is already under significant pressure. While I agree with the Senator fully, it is set out in sections 42(3) and 43(1) that the commission shall issue an invitation or can, like JAAB, organise competitions in advance of particular vacancies arising, allowing for an annual call or invitation when interviews would take place. It is a lengthier process, but the premise of the Bill is that, irrespective of whether it is for a lower or higher court or whether someone is a sitting judge, barrister or solicitor, everyone must go through the same process of being interviewed and setting out his or her skills, education and professional route to that point. One court’s management, workload and requisite skill set is different than another court’s. The Senator will appreciate that different courts require different skill sets and types of individual. What we have in the Bill allows for what he is trying to set out.
Section 43(2) reads: "An application for recommendation ... shall not be made ... otherwise than pursuant to an invitation issued under section 42."
A section 42 invitation can arise only where the Minister requests the commission to make recommendations for appointment to a judicial office where a judicial office stands vacant or he or she reasonably anticipates that there will be a vacancy in a judicial office. If a judge retires or dies before retirement, that does not apply. When Deputy Charles Flanagan was the Minister, this whole process was gone through in this House, so I am not going to waste time on it again. It was very clear that what was in mind was that every single vacancy would have to be the subject of a request from a Minister and that the commission would issue an invitation to apply for a vacancy only upon getting a request from a Minister. The idea was such that anybody interested in being promoted at some point over the following one, two or three years, or another period, should send in an application. That is not the way it was done, and we were told it would not work that way, so I do not see why it is the case now.
With regard to what happens at the moment, the reason the problem I am raising is no difficulty is that no existing judge applies to JAAB for any job. No existing judge from the High Court is required to apply to JAAB to be appointed to the Supreme Court. That whole process does not exist. The JAAB process applies only to new applicants to the Judiciary.
This is going to cause chaos. It is going to slow the whole process down. We are only codding ourselves if we believe a process that involves an interview and the sending out of all the information to all the applicants about the process and all the rest of it is triggered only by a request from the Minister. An invitation to applicants must take place once the vacancy exists and a request has been made, so it has to start again for everybody.
Section 43(1) requires a person wishing to be considered for appointment to a judicial office to make an application to the commission. As the Senator said, section 42(3) states the commission shall issue this invitation when the Minister has made a request. However, taking the two subsections together, the commission is still allowed to decide if it wants to issue an invitation at the start of the year. That would allow a person wishing to be considered for appointment to a judicial office to make an application to the commission. Again, if a vacancy arose in the High Court as a consequence of a promotion from the High Court to the Court of Appeal or even a court beyond that, there is nothing that would preclude the commission from considering an earlier application for the High Court. I was not party to the lengthy debate with the former Minister, Deputy Charles Flanagan, but the intention is that the commission would be allowed to make an early call earlier in the year whereby people could apply. Names could be taken from the associated list as well.
Amendment put and declared lost.
Amendment No. 27 not moved.
I move amendment No. 27a:
In page 32, between lines 26 and 27, to insert the following:
"(6) The Commission shall not recommend any person for appointment to judicial office in the State unless it is satisfied that the person is a citizen of Ireland.".
I second the amendment.
Amendment put and declared lost.
Amendments No. 28 and 28a are related. Amendment No. 28a is a physical alternative to amendment No. 28 and they may be discussed together, by agreement.
I move amendment No. 28:
In page 34, to delete lines 1 to 7 and substitute the following:
“Appointments to judicial office in the State: recommended persons to be first considered
51. (1) In advising the President in relation to the appointment of a person to judicial office in the State, the Government shall first consider for appointment those persons who have been recommended by the Commission to the Minister under section 47.
(2) Where the Government advises the President to appoint any person eligible for appointment to a judicial office other than the persons mentioned in subsection (1), a notice to that effect shall be published in Iris Oifigiúil in accordance with section 54.
(3) The Government may request the Commission to confirm, prior to advising the President, that any person mentioned in subsection (1) is an eligible person.”.
I second the amendment.
These two amendments go to the heart of this legislation. The Government has chosen today to guillotine this debate and to bring it to a close. In effect, this legislation proposes to make it unlawful for the Government of the day to appoint anybody to any judicial office unless that person has been shortlisted by a group of eight people, four of whom are judges and four of whom are laypeople appointed in accordance with this Bill. I want to put the following point on record because people will look at the record of this House. It proposes for the first time in the history of this State to take from the Government by legislation the discretion as to who should or should not be appointed to judicial office from among those people who are eligible for appointment to judicial office.
It goes much further than that. In regard to a nine-person Supreme Court, as the Government will only receive a shortlist of three, for instance, for the position of Chief Justice if a vacancy arises there, it makes it unlawful for the Government to consider six of the nine members of the court for that position. It is possible that five or six of the members of the Supreme Court will be incapable of being legally appointed Chief Justice. That is an extraordinary proposition. It means that four judges, who effectively have a blocking majority, will be able to determine that five of the present Supreme Court, or the Supreme Court for the time being, may not be appointed Chief Justice as a result of a decision of the body which they collectively will dominate.
I am shocked at this full-scale, full-frontal assault on the Constitution. We have a Constitution. We have an independent Judiciary which has served this nation well. It has been selected by the Executive from among those who are legally eligible to serve. There is a distinction between eligibility and those who are, as a matter of discretion, chosen from among the eligible. In other words, if ten people are eligible and well qualified to be appointed, the discretion at present as to which of those people gets appointed to judicial office is vested in the Government of the day. The Government is the democratic institution which makes that decision. I want to emphasise that it is not merely a right of a Cabinet. It is the duty of a Cabinet to make appointments to the Supreme Court in accordance with what they consider to be the good of the country. It is not a right. It is not just a bit of patronage. It is a duty to select people who, in the view of the Cabinet, are the best people for the job, having regard to a number of criteria.
Some of those criteria include the general philosophical outlook of the candidates. Some people's general philosophical outlook may make them suitable for appointment in the eyes of any particular Government, where a successor Government would be unimpressed. With a rabidly pro-life judge, the present Cabinet might decide that, really, they do not want that person's views coming into the balance on the Supreme Court. With a radically politically left or right judge, the Cabinet is entitled to say that it wants the Supreme Court to have a certain liberal-conservative, radical-progressive balance. That is not merely the right of the Government; it is the duty of the Government. For any Minister who serves in the Government and who thinks, “We are only just giving out jobs for the boys. This is just patronage. Why can’t we control when we are handing out patronage?”, that is an entirely false and damaging view of what selecting judges for our Supreme Court is.
I want to make a second point. Our Judiciary is entirely different from the judiciaries of most member states of the European Union and, indeed, most member states of the Council of Europe. Unlike any other common law state, a High Court judge on his or her first day in office can invalidate an Act of Parliament, can release any person from unlawful custody, can overrule by judicial review any act of the Executive and can decide which of two persons was telling the truth in regard to any dispute, and in the High Court, decisions on facts are not appealable unless they can be shown to be perverse. No other member state in the European Union, nor the United Kingdom, accords a judge of the High Court the right to strike down an Act of Parliament. We do.
Our constitutional architecture is such that the ultimate body which decides what the Constitution means is the Supreme Court, acting by a majority. Our system operates on the basis that the Supreme Court interprets and keeps alive, as a living document, and in fact develops the Constitution by judge-made law. Therefore, and this is where this Bill fundamentally and philosophically fails, it is not a matter of deciding on some points system who is the person who deserves appointment on “merit”. What is the difference in merit between a highly intelligent left-wing judge and a highly intelligent right-wing judge? They are two industrious members of the Bench, both versed in the law. What is the difference between them when it comes to appointing one or other of them to the Supreme Court? It is a choice for the Executive. It is a case of: “We do not want that person. We want this middle-of-the-road person” or “We do not want this left-wing person. That is our choice.” Merit means nothing in that context. You cannot say that because someone shares your political or philosophical outlook, they have greater merit than somebody who does not. Even if you could, and this is the fundamental problem, it is a choice as to whether you put a liberal, a conservative, a reactionary or whoever else onto the Supreme Court.
That choice is one to be made by a body which is democratically accountable. This commission is accountable to nobody. If it is the right of the Government to select a member for appointment to the Supreme Court on the basis of their broad philosophical outlook, those on the judicial appointments commission cannot even ask them questions about their political views, their sexual orientation, their basic philosophies and how they actually view the world. They cannot ask those questions because they are not competent to make a decision that a left-wing perspective is better than a right-wing perspective, and they are not even given the function of saying, “We appointed one lefty last week so we will appoint a righty next week and have a balance.” We cannot ask judges to do that.
There is another point that I want to make in the short time that is available to me. Giving the Judiciary the power to effectively create a shortlist does two things.
It is an idle pretence that it gives the Government a discretionary choice because it actually prevents the Government from selecting anybody who is not on the list. The Bill is vesting in a committee dominated by judges the right to veto any other person from becoming a judge in the first instance, from being promoted within the Judiciary, or from being made president of a court or Chief Justice. It is giving four judges the right by simply leaving names off the list to sideline any of their colleagues or any person who wants to be a judge permanently. There is no solution for that. Having the Attorney General in there watching what they are doing does not change it.
Judicial politics and judicial cliquishness may determine that the judges, whom we know, who are proven and who are less troublesome, are the people we will push up the system. However, the Judiciary has no right to do that. The sad fact is that over the past 15 years it became the fashion - I hope it has stopped since - that serving members of the Judiciary began canvassing members of the Government as to who should or should not be appointed judges and as to who should or should not be promoted through the various courts. When I was there and when Rory Brady was there, that simply did not happen. I never heard of it happening before my time either that Ministers for justice were canvassed vigorously and sometimes very vigorously by members of the Judiciary asking them to support one person rather than another for judicial office. There is such a thing as judicial politics. The Bill gives this eight-person body the right to veto anybody from appointment in the first instance or from promotion. We will find that judicial politics, not party politics, decides the whole issue.
We have a system that is not broken and therefore should not be mended. We have a system whereby the Constitution states the Government has the choice and the President acts on the advice of the Government. We are led to believe by some people that somehow having a shortlist of three makes this Bill constitutional. If three is constitutional, why should a future Oireachtas not decide that one is enough? Why give it any discretion at all? Why just take away what it has, which is full discretion, and give it reduced discretion? Who says it should be three, two or one? I remember, when Shane Ross persuaded Enda Kenny to include this in his programme for Government, he said it should be three or whatever lesser number is constitutional and they went for three. That was in the programme for Government. That was what he was demanding. It does not save this Bill from being unconstitutional that the Government retains a tiny discretion which prohibits it from selecting somebody who is not on the list. That does not save the Government's discretion, which is a constitutional right and a constitutional duty. I cannot understand for a moment why we are going down this road.
I notice that the long Title of the Bill makes references to the Council of Europe and GRECO. They are not empowered or in any position to amend the meaning of the Irish Constitution. They have no constitutional status whatsoever. I am not just saying that; very senior lawyers in the European Union have told me the Irish system is not at variance with what is required by European law and is in no way invalid. We have a Constitution which works, we have a Judiciary which is an admirable model for the whole of Europe. It has been done on the basis that the Executive of the day has made appointments of people of high quality and of independent mind to the Judiciary for 100 years. We are now being told there is some European argument from the Council of Ministers' recommendations, which are mainly aimed at what happens in Poland, Romania and Bulgaria, which mean that somehow for consistency Ireland should regard itself as of the same class.
I will finish on that point. The guillotine is now coming down on this Bill. I hope to God it is referred to the Supreme Court and I hope to God it is thrown out as manifestly unconstitutional.
As it is now 5.15 p.m., I now required to put the following question in accordance with the order of the Seanad of this day: "that amendment No. 28 is negatived; that the Government amendments not disposed of are hereby made to the Bill; that Fourth Stage is hereby completed; that the Bill, as amended, is hereby received for final consideration; and that the Bill is hereby passed."
Question put:
The Seanad divided: Tá, 31; Níl, 3.
Tá
- Ahearn, Garret.
- Ardagh, Catherine.
- Blaney, Niall.
- Burke, Paddy.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Currie, Emer.
- Daly, Paul.
- Dooley, Timmy.
- Gallagher, Robbie.
- Hackett, Pippa.
- Hoey, Annie.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- Ó Donnghaile, Niall.
- O'Donovan, Denis.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Sullivan, Ned.
- Sherlock, Marie.
- Wall, Mark.
- Ward, Barry.
- Wilson, Diarmuid.
Níl
- Boyhan, Victor.
- Keogan, Sharon.
- McDowell, Michael.
Tellers: Tá, Senators Robbie Gallagher and Joe O'Reilly; Níl, Senators Michael McDowell and Sharon Keogan.
Pursuant to Standing Order 57A, Senator Rebecca Moynihan has notified the Cathaoirleach that she is on maternity leave from 6th February to 18th August, 2023, and the Whip of the Fine Gael Group has notified the Cathaoirleach that the Fine Gael Group has entered into a voting pairing arrangement with Senator Moynihan for the duration of her maternity leave.Pursuant to Standing Order 57A:Senator Alice-Mary Higgins has notified the Cathaoirleach that she is on maternity leave from 19th June to 19th December, 2023, and accordingly has not voted in this division.Senator Ollie Crowe has notified the Cathaoirleach that he has entered into a voting pairing arrangement with Senator Higgins from 19th June to 19th August, 2023; and accordingly has not voted in this division.
Question declared carried.
Cuireadh an Seanad ar fionraí ar 5.28 p.m. agus cuireadh tús leis arís ar 5.45 p.m.
Sitting suspended at 5.28 p.m. and resumed at 5.45 p.m.