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Select Committee on Justice and Equality debate -
Wednesday, 7 Feb 2018

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

The meeting was scheduled to begin at 9 a.m. I emphasise that for all members. It is critical that people respect the committee system and are here for their business on time.

I take that as being directed at me, a Chathaoirligh.

No, it is directed at everyone, Minister, you included, if it applies.

The meeting has been convened to resume our consideration of Committee Stage of the Judicial Appointments Commission Bill 2017. I welcome the Minister for Justice and Equality, Deputy Flanagan, and his officials to the meeting.

We were about to consider amendment No. 49 when we adjourned on the last occasion. I believe we inadvertently skipped over an earlier grouping that includes this amendment. However, the first amendment in that section was not moved as the member was not present. The grouping is reconstituted, therefore, with amendments Nos. 49 to 68, inclusive, 70, 71 and 173.

I am uncertain whether this is the third or fourth session on this Bill. It is creating significant concern for me given the build-up of legislation on other matters that we must address. I am appealing to members – the Minister included – that we expedite the processing of the remainder of the amendments today to, hopefully, conclude Committee Stage before we complete today's session.

I will invite Deputy O'Callaghan to address us on amendment No. 49, which is the first in the grouping.

NEW SECTIONS

I move amendment No. 49:

In page 15, between lines 3 and 4, to insert the following:

“Recommendation of lay person for appointment as member and chairperson

15. (1) The 6 lay members of the Commission shall be appointed by the Minister on receipt of the following nominations:

(i) one shall be nominated for appointment by the Citizens Information Board;

(ii) one shall be nominated for appointment by An tÚdarás um Árd-Oideachas;

(iii) one shall be nominated for appointment by the Competition and Consumer Protection Commission;

(iv) one shall be nominated for appointment by the Irish Human Rights and Equality Commission;

(v) one shall be nominated for appointment by the Free Legal Advice Centres Limited;

(vi) one shall be nominated for appointment by the Top Level Appointments Commission.

(2) The Minister shall appoint as Chairperson a retired Judge of the High Court or Court of Appeal or Supreme Court.

(3) The Minister shall ensure that a lay person is appointed under this section only if he or she is satisfied that the person—

(a) is a fit and proper person to be so appointed, and

(b) is suitable for appointment having regard to—

(i) his or her having demonstrated experience of effective board management and corporate governance, and

(ii) his or her having such experience, qualifications, training or expertise as is appropriate having regard to the functions of the Commission.

(4) The Minister shall not make an appointment under this section unless a resolution approving the appointment has been passed by each House of the Oireachtas.”.

I am not going to spend much time on this because we have already discussed it to a certain extent before. Amendment No. 49 seeks to put in a new section for section 15. Instead of having the six laypersons nominated or appointed by the Public Appointments Service, the six would be nominated by the Citizens Information Board, An tÚdarás um Árd-Oideachas, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission, Free Legal Advice Centres Limited and the Top Level Appointments Committee.

It gets away from the idea that we have to put out an advertisement to see who will apply. We have six respected bodies that will do their best to appoint suitable people. The proposed section 15(2) makes the point on who the chairperson should be. If this amendment is passed, it will mean that we do not have to deal with amendments Nos. 50 to 68, inclusive. I am throwing that in, not to tempt members to support it, but it is something that will have a consequence. I urge the Minister to accept amendment No. 49.

Other amendments are dealt with in the grouping but no other amendments in that group are in my name. Amendment No. 70 is in the name of Deputy Sherlock. Amendment No. 71 is in the name of Deputy Clare Daly. She is trying to delete the word "lay". I am supportive of that.

Amendment No. 173 is the last amendment, which is in the name of Deputy Daly.

As amendment No. 50 is also in this grouping and has the same net effect, it is not a case of just addressing it because if amendment No. 49 is agreed then amendments Nos. 50 to 68, inclusive, cannot be moved. That said, if Deputy Ó Laoghaire wishes speak to amendment No. 50 and any other member wishes to address any of the amendments within the collective in this instance, could they indicate before we bring in the Minister?

I outlined previously that there are three different approaches in the amendments to how we might ensure that the lay representation is perhaps different from some of the standard State boards and is representative of key organisations that would have an interest in judicial diversity and representativeness. My first preference is for the approach in amendment No. 50. I will come back to that. My second preference would be for the approach taken by Deputies Daly and Wallace. I will not support amendment No. 49 as it would mean that my own amendment would fall. I think it is too prescriptive. Certainly these are all relevant organisations but we need an approach that ensures greater flexibility for the kind of organisations that can be represented and I think this is achieved in amendment No. 50. As I said before, the approach that would be taken is that the lay appointments would be divided into two parts, one part which would be appointed through the traditional Public Appointments Service approach and the other part involving three positions, and possibly more than that if we are looking at additional lay members, that would be nominated through a process whereby a panel would be drawn together from all the relevant organisations. Any relevant organisation could apply to be on that panel, be it any of the six mentioned in Deputy O'Callaghan's amendment or others such as the Immigrant Council of Ireland, the Migrant Rights Centre Ireland, the National Women's Council of Ireland or the Irish Council for Civil Liberties. All these organisations could apply to be members of that panel and would be contacted at the point at which a vacancy existed in the Judicial Appointments Commission and would be entitled to nominate somebody for that position. At the end of that process, three persons would be appointed. It creates greater flexibility but also potentially greater diversity in the organisations that would be represented. With regard to Deputy Daly's few minutes in this group, could she tell us what the implication or result of removing the word "lay" from all those sections would be?

I repeat that in the event that amendment No. 49 falls and amendment No. 50 is accepted, amendments Nos. 51 to 68, inclusive, cannot be moved.

It is confusing when we rejoin the discussion and because groups of amendments are linked with other ones and are contingent on them passing, it is a bit chaotic so I am not entirely sure. We have been discussing this. This group of amendments is really about aiming to have a diverse as a commission as possible. The Bill favours individuals with particular skills from particular backgrounds. They may well be qualified. They might be a bit monocultural. What this seeks to do is shake it up a bit. We did propose a number of lay appointments from FLAC, the Irish Human Rights and Equality Commission and the Irish Council for Civil Liberties. The amendments in this group take another step and provide that the lay membership should have at least some members with experience of working with offending behaviour and-or rehabilitation of offenders while removing the requirement that they have experience in commerce, finance or administration and in making appointments to public office or senior private appointments. I know amendment No. 67 in the name of Deputy Wallace is similar in that it says they should have experience of civil society, trade union activity and academia. I agree with that as well.

Amendment No. 60 introduces other amendments to another aspect of section 15 in that it introduces an obligation on the Public Appointments Service in appointing lay members to have regard to the objective of equal gender representation on the commission and the objective that the members of the commission reflect society's diversity. I do not know why that is not in the Bill in the first place. Amendment No. 69 in the name of Deputy Wallace does the same. I am not fully sure where the "lay" thing comes in with regard to this group of amendments but I think they are linked to another batch of amendments. I will have a look and come back in a minute.

I have tabled about seven or eight amendments in this grouping. The points are much the same and I do not want to go over them again. As Deputy Daly just said, the broader and more diverse the group that makes up the commission, the better it will be all round. A few of my amendments involve deleting stuff to facilitate a situation where the chair is picked by the commission. I am not getting much support on this one. As I said before, I am not hung up on whether the chair is lay or legal but I just think the commission should pick the chair. We probably have not finalised exactly the full make up of the commission and the number because of the amendments we have gone through to date but I do think that allowing the commission to pick its own chair is a good idea. I cannot help it if not enough members agree with me. Most of the points have been made.

Regarding the lay issue, which is linked because all these groups tie in, I am pretty sure that we are recommending that some of the people nominated by the NGOs could have had a legal background. They could be there representing the Irish Council for Civil Liberties but they would still come from the lay category so it is removing the "lay" definition from the people who come from those NGOs. We have said that while they are coming from that component body, the fact that they would have a legal background and be involved in that body would not necessarily exclude them or count them as one of the legal people. They could come out of the lay bit and that is why it is removed there. I think that is what it is.

As there are no other members seeking to speak, I will return to the Minister.

There are 24 amendments in this grouping. We are now dealing with key aspects of the Bill in terms of the nominating bodies and the nominating process. We are really at the heart of the legislation. I will deal with the points made in support of the amendments. In the first instance, I want to consider the proposed section 15 in respect of amendment No. 49, the deletion of section 15 and the substitution of that with a new section. In summary, the amendment replaces the role and function of the Public Appointments Service in the recommendation of lay members and indeed the lay chairperson as envisaged under the legislation. The amendment deletes the provision in the Bill relating to knowledge and professional experience pertaining to lay members and the non-legal chairperson. The amendment also substitutes a nomination process for the appointment by the Minister of lay members involving six specified nominating bodies. The amendment also provides that the Minister shall appoint as chairperson a retired judge of the High Court, Court of Appeal or Supreme Court. The amendment effectively replicates other provisions of the Bill. For example, those relating to the suitability of persons to be appointed, as provided for under section 15(4) and those relating to approval by resolutions of the Houses of the Oireachtas of layperson appointments, as provided for under section 17(1) of the Bill.

Indeed, on the matter of the Public Appointments Service aspect of the amendment, I am concerned at the effect of these provisions which seek to remove from the process the appointment of members. Removing any role from the Public Appointments Service is not something that I can support. I am aware that concern was expressed on Second Stage of the Bill by Deputies at the involvement of PAS in the process. I stated then, and repeat now, I do not see any foundation for aspersions cast on the Public Appointments Service process in so far as that would relate to the selection of the non-legal or lay members, including the lay chairperson, as provided for under the Bill. The position under section 15 of the Bill provides for an independent, detached and objective process for securing the services of lay member appointees.

The Public Appointment Service model is the centralised recruitment process across the public service, including appointments to State boards. I have heard criticism of the process in the House. I have read it in the media. I am firmly of the view that that process is open to scrutiny and transparent. Furthermore, I believe it is highly effective in doing the job it is required to do under legislation. I am not convinced by arguments that appear to question the integrity of such a fundamental public service process.

As far as the application of the Public Appointments Service to this particular piece of legislation is concerned it seems that in the matter of selection of lay members, the Public Appointments Service would, indeed, be the appropriate body to charge with responsibility and that process is, to my mind, the most appropriate. It also ties in directly to the carefully designed provisions of section 15(7) setting out the relevant knowledge, the matter of experience and the level of expertise that we would be looking for in the lay appointees.

I believe that it is important that we keep this to the fore in the context of what we are doing here. We are not merely appointing individual non-legal randomers here. We are charging persons with certain responsibility. Of course, I fully accept that it is important, and striking at the heart of this process, that there will be a non-legal chair and non-legal majority of those on the commission but I cannot accept that there is any plausible basis for a suggestion that there could be either political interference or what might be described as legal interference in the selection of lay members once the Public Appointments Service is the recommending body for appointment of lay members.

The PAS will conduct the selection process. It will recommend the names. The Minister will appoint such persons but only following resolutions approving the appointments in the Houses of the Oireachtas. I would perhaps see a role potentially for this committee in the matter of the resolutions of the appointments of the Houses of the Oireachtas, and this is as it should be.

It is not reasonable, in my view, that what is now effectively the standard arrangement for such board appointments could be construed as anything other than independent or how it could in any manner be characterised as being potentially an instrument for some sort of agenda-pushing or preferment. The PAS is the centralised provider of recruitment assessment and deals with the selection services. It provides recruitment services to many public bodies that members around this table will be aware of. It is the recognised leading recruiter for public service jobs here and as a member of Government, I endorse that role.

Deputies have suggested that this system produces a certain homogenous type of board member. I reject that. I do not believe that to be the case, especially in the circumstances where varying criteria for selection, as is the case here, are being provided for.

I am particularly concerned at the manner in which Deputies propose to dispense with the carefully crafted wording of section 15(7) of the Bill that we have made reference to in previous debate. It is vital that the Bill continues to contain very well considered and sufficiently detailed criteria against which the appointments of the non-legal members must be considered.

It is important that we consider the detail here - the indicated knowledge and indicated experience of the lay members, the operation of the courts, the provision of supports to persons who are victims of crime, human rights, equality, issues concerning diversity among members of society, process and procedures for making appointments to public office or to senior positions in public or private sector organisations, commerce, finance, administration, including public administration, board membership and corporate governance, professional dispute resolution, experience in the area of mediation. This is also supported by the stipulation in section 15 that PAS shall have regard to the desirability that the lay members of the commission will, among them, possess certain knowledge and experience in as many as possible of the areas as outlined.

I am not really sure on what basis the stipulated criteria around experience or knowledge might be dispensed with under the amendments that we have here. I would have thought knowledge and experience of the operation of the courts, matters pertaining to diversity, appointments procedures and corporate governance, for instance, were really important in the context of what we are discussing.

I do not agree to the proposed amendment that would move away from the Public Appointments Service model and dispense with a set of known experience and knowledge criteria.

On the last aspect of the amendment dealing with the nominating bodies, having regard to the fact that the amendments envisage no role for the Public Appointments Service, this involves the deletion of section 15 so that the mechanism for securing lay membership of the commission is based on a nominating bodies approach - these bodies ranging from citizens advice bureau to TLAC. However, I need to stress here that given the position of the Deputies as far as the committee model is concerned and other aspects of the membership of the commission, there are consequential issues here that we will have to revisit on Report Stage. I want to flag that now. I am sure I am saying something that, having regard to amendments already made, will not be taken as a surprise by members but that may well entail a different design. It may entail a bigger, somewhat tailored commission, for example, to ensure that all five court presidents have an appropriate involvement and role. There may be some scope to consider how precisely the appointment or nomination process for lay-members might best be organised. I have already indicated that I would be far from happy to have a situation where we are writing out or deleting all reference to or role of the Public Appointments Service.

As regards this amendment, as the Deputies are putting forward a nominating body mechanism which is focused on six specific organisations, it is true that a number of other board arrangements are based on a nomination system focused around a specific number of organisations.

We have examples, such as the recently inaugurated Legal Services Regulatory Authority. We look at the Policing Authority nominating bodies for membership. Having nominating bodies is not in any way objectionable in itself. However, while the bodies with which we are now dealing may well be in a position to nominate suitable persons, it is possible to think of many more bodies that could have a role. Many of those would perhaps say that they have an even more relevant role in these circumstances. In ways, it is invidious to speak of different bodies here in terms of their possible contribution or lack thereof, but any departure from the role of the PAS will give rise to a weakness in the legislation.

I cannot accept the specific aspect of the amendment which provides that the chairperson would be a retired judge of the High Court, the Court of Appeal or the Supreme Court. I said this on Second Stage, and perhaps I have even said it at this committee, so it will come as no surprise if I repeat it, but I cannot accept that a person with such a bank of experience, knowledge and expertise, having regard to his or her fundamental and active role of the Judiciary, can suddenly become a lay person within the meaning of the Bill. I would have thought that in order to qualify under the term "lay", one's experience and expertise would have to be outside of the area of law.

Amendment No. 4 seeks to provide that an individual who previously held judicial office could be considered a layperson. That strikes at the heart of the Bill. I strongly contend that a layperson should not have held senior judicial office or, dare I say, any judicial office. Having a lay chair of selection commissions is not uncommon in other jurisdictions. Corresponding commissions in England, Wales and Scotland have lay chairs. It is clear that not everyone agrees with this measure, but the amendment puts forward the notion of a retired senior judge as chairperson and I do not believe that is in keeping with the letter or spirit of the Bill. I am not going to accept that amendment.

Amendment No. 50, in the name of Deputy Ó Laoghaire, seeks to replace section 15. My difficulty with this prescription is that the targeted and comprehensive framework to be referenced in selecting six ordinary lay members as set out in the section 15(7) would be very difficult to observe if the PAS was confined to only making three selections from these seven categories of experience and knowledge. Again, my concern would be that we would lose valuable inputs to the judicial appointments framework of the commission if we embark on a process that would unduly restrict the operation of section 15(7). The Deputy has indicated that he wants to consider some diversity aspects of the Bill on Report Stage. As I have already mentioned, I am not overlooking the need to reflect on the lay membership aspects of the Bill between now and Report Stage.

I cannot agree with the approach in amendments Nos. 51 and 52 in the name of Deputy Wallace. I understand that amendment No. 54 in the name of Deputy Seán Sherlock will not be moved.

Amendments Nos. 53, 56, 57, 59, 61 and 62 in the name of Deputy Clare Daly would have the effect of removing certain references to laypersons being recruited by the PAS, instead giving it the job of recruiting the practising solicitor member of the commission, the practising barrister member and the four lay members. These amendments are necessary to facilitate the overall approach of Deputy Daly's amendments which seek to replace the Bar Council and the Law Society nominees on the commission with a practising solicitor and a practising barrister recruited by the PAS. The effect of that is to remove the very important role for the Law Society and the Bar Council, which is that they would be the bodies charged with the responsibility of nominating members of their own society or organisation. I will be supporting the retention of this section.

On Amendment No. 60-----

On a point of order, we have listened to this for approximately 15 minutes. I wonder if the Minister's explanation is directly linked to the absence of a particular Fine Gael member. The Minister has spent 15 minutes regurgitating the same point over and over. It is important that there be some kind of time limit on the contributions of members because we are never going to-----

I have never sought to do that previously. It is very vexatious that we could be faced with yet another deferral of consideration of this Bill, particularly as these deferrals are causing enormous difficulties for the schedule of work of the committee. I am anxious to expedite it and I ask for the co-operation of everyone, including the Minister, in facilitating that progress today.

We do not have any problems. The Deputy is totally wrong. We do not have any problems with any Fine Gael members. They are all available this morning.

I have no understanding of that reference. My only concern-----

I am just saying that a Fine Gael member is absent and the Minister's contribution is the longest I have ever heard on Committee Stage. I wonder if he is waiting for that particular member to arrive before a vote is called.

I will concede to the Deputy and I will cease. For the Chair to suggest that there is any process that might be regarded as vexatious is worrying. I have amendments which were tabled by Deputies in accordance with their rights.

Let me clarify something for the Minister.

If I am not afforded an opportunity to reply, I will defer to the committee.

Of course the Minister is being-----

However, I would ask for a submission to be placed on the public record that it was suggested that my replies were vexatious by the Chair of the committee.

That is not what the Chair said. It is important not only that the Minister is heard, but that he listens. Nobody, the Chair included, made any such charge against him. I will tell the Minister what is vexatious.

I am glad the Chair clarified that.

It is vexatious that the work of this committee is being seriously impeded by virtue of the elongated time which we are having to allocate to this particular Bill.

I did not table amendments for Committee Stage.

That work includes other Bills which the Minister is anxious for the committee to address. I appeal for us all to be mindful of our efforts to try to conclude this business today and I ask for the co-operation of the Minister in that regard.

There is one way of doing that and that is to curtail the matter of the amendments.

The Chair had not interrupted the Minister but a member has pointed out the length of time and degree of repetition involved in the Minister's response. We ask him to be mindful of that and I think that is a respectful intervention.

The Minister is insinuating that we want to get rid of the authority of the PAS but the amendments I have tabled, for example, those that proposed to remove sections 15(7)(e) and 15(7)(f), were drafted to remove any requirement or desire on the part of the PAS for experience in public sector appointments, board membership and corporate governance. These proposals are made with a view to broadening the potential for the PAS to choose from outside of the usual career civil servants or retired civil servants who would be likely to have experience in these areas, thus encouraging as broad and as diverse an approach as possible by the PAS rather than restricting it only to candidates who have such experience. This would also minimise the potential for public sector groupthink within the commission. The commission is unique and would be best served by a diverse membership with a dynamic and innovative approach to decision-making.

From this perspective, the inclusion of lay members with little or no experience of public sector appointments processes or board membership would be preferable. This is also the reasoning behind the amendment of section 15(7)(e) to remove the reference to "public administration" and insert the words "civil society, trade union activity and academia". Again, this would encourage the casting of the net wider to include lay members from these backgrounds, rather than seeking only to appoint lay members with backgrounds in finance, commerce and public administration, as is the case under section 15(7)(e) as currently drafted.

Amendment No. 69 proposes to insert a new subsection (8) to impose a statutory requirement on the PAS, when selecting lay members of the commission, to aim for gender balance and diversity. I am not arguing for one moment that we should abandon the use of the PAS. This proposal provides for an innovative approach to the selection of judges. It is desirable to have diversity in the composition of the commission. No one denies that people from the backgrounds that have been highlighted are more qualified than some of the lay members who should be included for diversity reasons. However, this does not change the fact that it is good to have a wide range of approaches. None of us has a God-given right to believe our approach is always correct. People take different views and all I am asking is that the make-up of the commission be as diverse as possible and reflect society to the greatest possible extent. Regardless of how clever or experienced a person is, all of us are members of society and our objective here is to establish a commission that reflects society. If we do not make the commission diverse, it will reflect only part of society. We are not, as the Minister appeared to insinuate, calling for the PAS to be abandoned.

Deputy Wallace and I are arguing for the PAS to have a greater role in the process on condition that, as Deputy Wallace stated, it casts the net wider to increase diversity on the Judicial Appointments Commission. I apologise if my earlier explanation was unclear. In fairness to the Minister, he explained the issue better than I did. The reason our amendments propose removing the word "lay" is that we are also proposing that the legal persons be appointed by the PAS. To improve diversity on the commission, we want these appointments to be made on the basis of the same standards that will apply to the appointment of laypersons. We recommend that the barrister and solicitor be appointed by the PAS. To this end, we propose the deletion of the word "lay" to ensure these two nominations are also covered by the diversity requirement when the PAS is making its decision.

I was about to make the same point as Deputy Clare Daly.

On the issue of diversity, there is no suggestion that there would be legal or political interference in lay appointments, which appears to be the Minister's interpretation. It is more a sense that there is a degree of inertia among the types of persons who are sometimes appointed to State boards. While they are often competent and capable individuals, as many Deputies from all political backgrounds who have experience of State boards will agree, these boards are not as diverse as we would like them to be.

As Deputy Clare Daly stated, we are asking the PAS to cast the net wider. The Minister made a number of criticisms, most of which do not apply to amendment No. 50. I should clarify that the Minister's specific criticism of amendment No. 50 is inaccurate. He indicated the proposal seeks to remove the criteria for lay appointments set out in subsection 7. The new subsection (10), proposed in amendment No. 50, provides that the persons appointed under the diversity and inclusion panel would be subject to the same criteria as those laid out in subsection (8) of the new section. These are the same criteria as those set down in section 15(7) of the current text. As such, the same criteria would apply and the Minister's criticism of the proposed amendment is inaccurate.

In respect of Deputy Wallace's amendment No. 67, my concern is that the terms "civil society", "trade union activity" and "academia" may lack a certain degree of specification. I do not see any direct relationship between the three terms and I foresee problems in the selection process in this regard. I also suggest that the concepts of civil society and dispute resolution, which would, I presume, include trade dispute resolution, are already reflected in the other expertise and experience headings we have included in the legislation in any event.

As far as amendment No. 68 is concerned, the effectiveness of the new commission and the manner in which it will get its work done is absolutely critical to the success of the body. I stress again the necessity to have good experience. I do not see any valid reason for deleting the reference that would be imported by amendment No. 68 and I will not accept the amendment.

That is fine. As no one is indicating, we will-----

While I do not wish to unduly delay proceedings, the Minister has not given a substantive reason for rejecting amendment No. 50. The point about whether it would be invidious to select certain organisations is not a criticism that applies to amendment No. 50. My amendment retains all the criteria by which people would have to reach certain standards, creates greater flexibility and preserves the role of the PAS. As such, none of the criticisms made about other potential appointments systems applies to amendment No. 50. Perhaps the Minister intends to accept the amendment but, if not, I would appreciate a substantive reason for his decision.

I made it clear that I will not accept the amendment. In fact, I have been accused by members of taking such a long time to explain my reasons for not accepting it as to be in some way holding up the work of the committee.

I have not made any such accusation. With respect, most of the Minister's contribution related to amendment No. 49. He did not give substantive reasons for not accepting amendment No. 50. I corrected the only issue he raised in respect of the amendment.

I am worried that we would lose the valuable inputs to the appointments framework of the commission if we were to unduly restrict the operation of section 15(7), to which I referred at length in the course of my contribution.

I addressed that matter when I pointed out that the role of the PAS would be preserved under amendment No. 50. Subsection (10) of the new section addresses the issue because the criteria in the original text are preserved in the new subsection (8). The same criteria would apply.

To ensure that the committee does not spend an unduly long time debating this issue, I will accept Deputy Ó Laoghaire's point that we need to consider further the diversity aspects of the Bill. Let us reflect on the lay membership aspects of the Bill ahead of Report Stage at which point we can revisit the issue. I will not accept the amendment today, however.

We will proceed to make a decision on amendment No. 49. Where stands the amendment?

It is being pressed.

I remind members that if the question on amendment No. 49 is agreed, amendments Nos. 50 to 68, inclusive, cannot be moved. The amendment proposes to insert a new section and would have the effect of deleting section 15.

Amendment put and declared lost.

I move amendment No. 50:

In page 15, between lines 3 and 4, to insert the following:

“Recommendation of lay person for appointment as member and chairperson

15. (1) The Public Appointments Service shall organise the following selection processes—

(a) as soon as may be after the commencement of this section, a selection process referred to in each of subsections (2) and (3) for the purposes specified in those subsections, and

(b) thereafter—

(i) from time to time when requested to do so by the Minister, a selection process referred to in either subsection (2) or (3), or both, for the purposes specified in either or both of those subsections, and

(ii) if the request relates to a selection process referred to in subsection (3), for the recommendation of such number of lay persons as is specified in the request.

(2) The Public Appointments Service shall recommend a lay person for appointment by the Minister as chairperson following a selection process held by the Service for that purpose.

(3) The Public Appointments Service shall recommend lay persons for appointment by the Minister to the Commission, according to section 12(1)(h) (the General Lay Appointments) following an open selection process held by the Service for that purpose.

(4) The Public Appointments Service shall recommend lay persons for appointment by the Minister to the Commission, according to section 12(1)(i) (the Diversity and Social Inclusion Appointments) according to the process outlined in subsection (9).

(5) The Public Appointments Service shall ensure that a lay person is recommended under subsection (2) for appointment as chairperson only if it is satisfied that the person—

(a) is a fit and proper person to be so appointed, and

(b) is suitable for appointment having due regard to—

(i) his or her having demonstrated experience of effective board management and corporate governance,

(ii) his or her having such experience, qualifications, training or expertise as is appropriate having regard to the functions of the Commission, and

(iii) the desirability that he or she has knowledge of, and experience in, the matters specified in paragraphs (a) to (e) and (g) of subsection (8).

(6) Subject to subsection (7), in conducting a selection process under subsection (3) for the purpose of recommending lay persons under that subsection for appointment, the Public Appointments Service shall have regard to the desirability that the lay members of the Commission will, amongst them, possess knowledge of, and professional experience in, as many as possible of the matters specified in subsection (8).

(7) The Public Appointments Service shall ensure that a lay person is recommended under subsection (3) for appointment to the Commission only if it is satisfied that the person—

(a) is a fit and proper person to be so appointed, and

(b) is suitable for appointment by reason of the person’s possessing such experience, qualifications, training or expertise as is appropriate having regard to the functions of the Commission.

(8) The matters referred to in subsections (4) and (5) are matters connected with:

(a) the operation of the courts;

(b) the provision of supports to persons who are victims of crime or to users of the services provided by the courts;

(c) human rights, equality or issues concerning diversity amongst members of society;

(d) processes and procedures for making appointments to public office or to senior positions in public or private sector organisations;

(e) commerce, finance or administration, including public administration;

(f) board membership and corporate governance; and

(g) professional dispute resolution or mediation activities.

(9) The Public Appointments Commission, shall for the purposes of this section, seek nominations from a list of named nominating bodies, hereafter to be known as the “Diversity and Inclusion Panel”—

(a) this Panel of nominating bodies shall be maintained by the Public Appointments Commission, and to qualify for membership, an organisation must demonstrate its relevance to the objectives of diversity outlined in section 7, and/or the nine grounds in the Employment Equality Acts,

(b) this Panel shall not have a maximum number of organisations entitled to nominate a person for this section, however, each organisation will only be entitled to nominate a single person on each occasion, that there is a vacancy in line with section 12(1)(i),

(c) on each occasion that there is a vacancy under section 12(1)(i), the Public Appointments Commission shall seek expressions of interest from the organisations on the Diversity and Inclusion Panel, and

(d) the Public Appointments Service shall from these named persons, recommend lay persons for appointment by the Minister to the Commission, in accordance with subsection (10).

(10) Subject to subsection (9), in conducting a selection process under subsection (4) for the purpose of recommending lay persons under that subsection for appointment, the Public Appointments Service shall have regard to the desirability that the lay members of the Commission will, amongst them, possess knowledge of, and professional experience in, as many as possible of the matters specified in subsection (8).”.

Amendment put:
The Committee divided: Tá, 3; Níl, 5.

  • Daly, Clare.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Chambers, Jack.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
Amendment declared lost.
SECTION 15

I move amendment No. 51:

In page 15, line 7, to delete “each of subsections (2) and” and substitute “subsection”.

Amendment put:
The Committee divided: Tá, 4; Níl, 4.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
  • Ó Caoláin, Caoimhghín.
Amendment declared .
Amendment declared lost.

I move amendment No. 52:

In page 15, line 11, to delete “either subsection (2) or” and substitute “subsection”.

Amendment put and declared lost.

I move amendment No. 53:

In page 15, line 14, to delete “lay”.

Amendment put and declared lost.
Amendment No. 54 not moved.

I move amendment No. 55:

In page 15, to delete lines 16 to 18 and substitute the following:

“(2) As soon as may be after commencement of this section, members of the Commission shall elect a chairperson from the Commission's membership by way of a simple majority vote.”.

Amendment put and declared lost.

I move amendment No. 56:

In page 15, line 19, to delete “lay”.

Amendment put and declared lost.

I move amendment No. 57:

In page 15, line 20, after “Commission” to insert “, pursuant to paragraphs (e), (f) and (h) of section 12(1)”.

Amendment put and declared lost.

I move amendment No. 58:

In page 15, to delete lines 22 to 32.

Amendment put and declared lost.

Is amendment No. 59 being pressed?

No, for a bit of variety.

It has been a while.

We will spice it up a bit.

Thanks for the variety.

It is the spice of life.

Does Deputy O'Connell see what she has been missing?

It is very uplifting at times.

Amendment No. 59 not moved.

I move amendment No. 60:

In page 15, lines 35 to 37, to delete all words from and including “have” in line 35 down to and including line 37 and substitute the following:

“have regard to:

(a) the objective that the members of the Commission appointed pursuant to paragraphs (e), (f) and (h) of section 12(1) will, amongst them, possess knowledge of, and experience in, as many as possible of the matters specified in subsection (7);

(b) the objective that the members of the Commission appointed pursuant to paragraphs (e), (f) and (h) of section 12(1) will comprise an equal number of women and of men;

(c) the objective that the members of the Commission appointed pursuant to paragraphs (e), (f) and (h) of section 12(1) will reflect the diversity of the population as a whole.”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

Is amendment No. 61 being pressed?

No, and neither are amendments Nos. 62, 63 and 64.

Amendments Nos. 61 to 64, inclusive, are not being moved.

Actually, I am not sure about amendment No. 64.

We have noted the Deputy's indication that she will not be moving three amendments.

Amendments Nos. 61 to 63, inclusive, not moved.

I move amendment No. 64:

In page 16, between lines 10 and 11, to insert the following:

“(d) offending behaviour and/or the rehabilitation of offenders;”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

Amendment No. 65, which has already been discussed with amendment No. 24, is in the name of Deputy Wallace. Is the amendment being pressed?

I am sorry, but just so that I understand, does the previous change not affect amendment No. 65? Lines 10 and 11 have been deleted. Is line 11 not something else now?

All I can say is that, from the notation that I have, if the question on amendment No. 65 is carried, then amendment No. 66 in the name of Deputy Daly cannot be moved.

Then move amendment No. 66 instead.

I believe that what Deputy Ó Laoghaire is saying is that we have a new line 11, so would we be deleting what we have just agreed?

Is that what Deputy Ó Laoghaire means?

The Deputies should only move amendment No. 66. Do not move amendment No. 65.

Okay. We will do that.

It looks like a juxtaposition, there is no question. It is Deputy Wallace's call.

These are the old lines 11 and 12.

I will not move amendment No. 65.

The Deputy has the opportunity to, on review, resubmit on Report Stage if he feels it appropriate.

Amendment No. 65 not moved.

Is amendment No. 66 being pressed?

For the information of members, I must advise that, if the question on this amendment is agreed, amendment No. 67 cannot be moved.

Then I shall not move my amendment. Is that right?

Deputy Daly is not moving the amendment.

No, although I now wonder whether we are being conned by Fianna Fáil.

No. Does Deputy Daly wish to revert to amendment No. 65?

I am lost now.

The information is provided by the Chair.

It has absolutely nothing at all to do with Fianna Fáil.

Do not be so suspicious of us.

Fianna Fáil is so helpful normally.

We have done nothing wrong here.

Okay. Fianna Fáil is innocent. I take it back.

They have not gone away, you know.

(Interruptions).

I do not know about that, but I am here.

We are not talking about Sinn Féin now, are we? It is Fianna Fáil.

Do I take it that Deputy Daly is moving her amendment?

I am completely lost.

I am confused on it as well.

In that case, the wisest course may be not to press the amendment and reserve the right, which is Deputy Daly's, to resubmit on Report Stage.

Press amendment No. 67.

Which one does Deputy Wallace wish to press?

We will press amendment No. 67.

This is so confusing.

As I have stated repeatedly, that amendment No. 66 is not moved does not scuttle any intent that the Deputies may wish to revisit it at a future point.

Amendment No. 66 not moved.

Amendment No. 67 has already been discussed with amendment No. 24. I have no little hidden notes to share with members.

I move amendment No. 67:

In page 16, line 13 to delete “or administration, including public administration” and substitute “, civil society, trade union activity and academia”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

In this grouping, bar amendments Nos. 70, 71 and 173, we have reached the last of the block of amendments from amendments Nos. 49 to 68, inclusive.

I move amendment No. 68:

In page 16, to delete line 14.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared .

Amendment No. 69 has already been discussed with amendment No. 2.

I move amendment No. 69:

In page 16, between lines 15 and 16, to insert the following:

“(8) When conducting a selection process for the purpose of recommending lay persons for appointment, the Public Appointments Service shall have regard to—

(a) the objective that the membership should comprise equal numbers of men and women, and

(b) the objective that the membership should reflect the diversity within the population as a whole.”.

From my memory, I thought the Minister said he would agree with us on this one.

I must dig back up the notes.

It is a harmless enough one.

It merely seeks equal male and female membership. I would be very surprised if Deputy O'Connell votes against us on this one. For a woman fighting the good fight for women in here, it will go down badly if she votes against it.

This amendment has already been discussed with amendment No. 2 so we will not open it up again.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared .
Section 15, as amended, agreed to.
SECTION 16
Question proposed: "That section 16 stand part of the Bill."

Deputy Daly indicated that she is opposing section 16. Would she like to speak to-----

I spoke to that already.

Question put and declared carried.
SECTION 17
Amendments Nos. 70 to 72, inclusive, not moved.
Question proposed: "That section 17 stand part of the Bill."

We are opposing the section because we believe that the chairperson should not be a layperson. It should be a person who is either appointed by the board or holds judicial office.

Does anybody else wish to speak or should we proceed to make a decision?

I am on the record as having opposed it and have outlined reasons accordingly. I will not be repetitive.

Question put and declared carried.
SECTION 18

I move amendment No. 73:

In page 17, line 2, to delete “and each relevant committee”.

It was voted on previously because we agreed to remove the committee structure. It is just consistent with those previous amendments in the larger grouping. Therefore, I will press it.

Amendment No. 73 was already discussed with amendment No. 9.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared .

I move amendment No. 74:

In page 17, line 6, to delete “or a relevant committee”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared .

For the information of members, the likelihood is that there will be a series of these votes, allied to the decision on amendment No. 9 in a significant grouping of amendments at least a couple of meetings back.

I move amendment No. 75:

In page 17, line 9, to delete “or the committee”.

We are pressing our amendment for the same reasons as before.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

Amendment No. 76 in the name of Deputy Wallace is not grouped nor has it been previously addressed.

I move amendment No. 76:

In page 17, line 10, to delete “lay”.

I actually have addressed the matter.

Perhaps, when discussing other amendments, but amendment No. 76 has not been grouped nor addressed individually.

I understand. My amendment is linked to other amendments that I have discussed.

My amendment is based on the same principle. Obviously I have established that my amendment will not be accepted, so I will not push it to a vote.

Does the Minister wish to make a further comment on the amendment?

No, I am not minded to accept it.

The Minister's position is on the record.

Amendment put and declared lost.

I move amendment No. 77:

In page 17, line 12, to delete “and each relevant committee”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

I move amendment No. 78:

In page 17, line 14, to delete “or a relevant committee”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

Amendment No. 79 in the name of Deputy Sean Sherlock cannot be moved as he is not present.

Amendment No. 79 not moved.

I move amendment No. 80:

In page 17, line 15, to delete “, 4 of whom shall be lay members”.

Amendment put and declared lost.

I move amendment No. 81:

In page 17, lines 16 and 17, to delete “or a relevant committee”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

I move amendment No. 82:

In page 17, line 18, to delete “or committee”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

I move amendment No. 83:

In page 17, line 21, to delete “and each relevant committee”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Section 18, as amended, agreed to.
SECTION 19

I move amendment No. 84:

In page 17, lines 28 to 30, to delete all words from “, the majority” in line 28 down to and including “determines” in line 30.

Amendment put and declared lost.

I move amendment No. 85:

In page 17, lines 36 to 38, to delete all words from “, the majority” in line 36 down to and including “determines” in line 38.

Amendment put and declared lost.
Question proposed: "That section 19 stand part of the Bill."

This matter has been discussed before. The reason we oppose section 19 is it refers to the "Procedures Committee and other committees of Commission." We have made the decision, as a committee, that we will remove the committee structure so, consistent with that, we should not allow in section 19. Therefore, I am pressing the opposition to the section as a whole.

I wish to put it on record that there were also votes on, specifically, the procedures committee. The select committee agreed that the procedures committee was the one committee that was worth preserving and, therefore, I shall vote to maintain section 19. It will require an amendment to reflect the other changes that I have made but I intend to vote to retain the section.

Does the Minister have anything further to add?

I am on the record, as far as the importance of the committees is concerned.

That is fine.

Question put and declared carried.
SECTION 20

I move amendment No 86:

In page 18, line 22, to delete “a relevant committee” and substitute “the Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Amendment declared carried

I move amendment No. 87:

In page 18, line 24, to delete “relevant committee” and substitute “Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Amendment declared carried.

I move amendment No. 88:

In page 18, line 26, to delete “a relevant committee” and substitute “the Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Amendment declared carried.

I move amendment No. 89:

In page 18, lines 27 and 28, to delete “relevant committee” and substitute “Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Amendment declared carried.

I move amendment No. 90:

In page 18, lines 29 and 30, to delete “a relevant committee” and substitute “the Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Amendment declared carried.

I move amendment No. 91:

In page 18, line 32, to delete “relevant committee” and substitute “Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

I move amendment No. 92:

In page 18, line 33, to delete “a relevant committee” and substitute “the Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Amendment declared carried.

I move amendment No. 93:

In page 18, line 35, to delete “that committee” and substitute “the Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Question, "That section 20, as amended, be agreed to", put and declared carried.
Section 21 agreed to.
SECTION 22

I move amendment No. 94:

In page 19, line 19, to delete "nominated by the Law Society of Ireland" and substitute "appointed pursuant to paragraph (e) section 12(1)".

Amendment put and declared lost.

I move amendment No. 95:

In page 19, lines 21 and 22, to delete “nominated by the chairperson of the General Council of the Bar of Ireland” and substitute “appointed pursuant to paragraph (f) of section 12(1)”.

Amendment put and declared lost.
Section 22 agreed to.

When I asked if section 22 was agreed to I did not hear any dissent.

Other than that bulletin from the Minister.

Section 23 agreed to.
SECTION 24

Amendment No. 96 was already discussed with amendment No. 1.

I move amendment No. 96:

In page 20, line 32, to delete "Director" and substitute "Secretary".

Amendment put and declared lost.

I move amendment No. 97:

In page 21, line 6, to delete "Director" and substitute "Secretary".

Amendment put and declared lost.
Section 24 agreed to.
Sections 25 and 26 agreed to.
SECTION 27

I move amendment No. 98:

In page 22, between lines 36 and 37, to insert the following:

"(4) The annual report will contain a diversity statement on the success of the Judicial Appointments Commission in furthering the objectives outlined in section 7(2).".

This brief amendment is germane to the intention of the Bill. It requires that the annual report, which the judicial appointments commission would be required to publish, would contain a diversity statement. We are trying to achieve diversity and wide representation in our judicial appointments and the judicial system generally. It makes sense that the annual report be required to make a specific statement on how successful it has been in achieving that.

I do not intend to accept this amendment because I believe that its import is to unduly tie the hands of the commission and what it might focus on in its annual report. I refer the Deputy to section 27(4) which enables the Minister to direct the commission to provide an annual report "in such form and manner" as may be specified. Under subsection (5) the commission must comply with such a direction. Section 28 contains similar provisions in so far as the functions of the commission are concerned. It is my belief that these provisions already in the Bill adequately cater for what the Deputy is seeking to achieve and I am not going to accept the amendment.

I do not agree but I do not think there is any need to rehearse this at any greater length.

Amendment put and declared lost.
Section 27 agreed to.
Section 28 agreed to.
SECTION 29

Amendment No. 99 was already discussed with amendment No. 9.

I move amendment No. 99:

In page 23, lines 9 and 10, to delete "a relevant committee, the Procedures Committee or any other committee of the Commission,".

Amendment put:
The Committee divided: Tá, 4; Níl, 4.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
  • Ó Caoláin, Caoimhghín.
Amendment declared .

Standing Order 97(1) negatives a question when there is an equality of votes.

Amendment declared lost.

Amendment No. 100 has already been discussed with amendment No. 1.

I move amendment No. 100:

In page 23, line 11, to delete "Director, a member of staff of the Office" and substitute "Secretary".

Amendment put and declared lost.

Amendment No. 101 has not previously been discussed.

I move amendment No. 101:

In page 23, lines 21 and 22, to delete from "person;" in line 21 down to and including line 22 and substitute "person.".

This is a proposal in respect of confidential information. The purpose of the amendment is to remove the wording " 'relevant committee' includes a subcommittee of such a committee". As we have approved the removal of committees that is consistent with the other amendments. However, I am conscious that Deputy Ó Laoghaire will note that it refers to the procedures committee as well and he may be opposed to it.

It is not grouped and has not been addressed previously.

It does not refer to the procedures committee.

Does the Minister wish to respond?

While it has not been grouped it is undoubtedly consequential on the earlier group of proposed amendments which have already been discussed.

Amendment put:
The Committee divided: Tá, 4; Níl, 4.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
  • Ó Caoláin, Caoimhghín.
Amendment declared .

Standing Order 97(1) negatives a question when there is an equality of votes.

Amendment declared lost.

If there is any confusion members can revisit their position on Report Stage.

Question proposed: "That section 29 stand part of the Bill."

With regard to the series of amendments made recently, some of the amendments we have made have probably gone further than members anticipated. I say that with particular reference to amendment No. 99. These are issues we will revisit on Report Stage.

Amendment No. 99 did not succeed.

I see that. It probably bolsters my point that once Committee Stage has been completed, and having regard to the number of amendments that have been made, there will be an opportunity to regroup at that stage. Obviously that is the import of Committee Stage, but I am particularly mindful of it in the context of recent amendments made. I take your point about amendment No. 99.

Question put and agreed to.
SECTION 30

I move amendment No. 102:

In page 23, lines 25 and 26, to delete “a relevant committee, the Procedures Committee or any other committee of the Commission,”.

Amendment put and declared lost.

I move amendment No. 103:

In page 23, line 27, to delete “Director, a member of staff of the Office” and substitute “Secretary”.

Amendment put and declared lost.

I move amendment No. 104:

In page 23, line 33, to delete “and of its committees”.

Amendment put and declared lost.

I move amendment No. 105:

In page 23, line 34, to delete “and its committees”.

Amendment put and declared lost.

I move amendment No. 106:

In page 23, line 35, to delete “or its committees”.

Amendment put and declared lost.

I move amendment No. 107:

In page 24, to delete lines 3 to 6.

Amendment put and declared lost.
Section 30 agreed to.
SECTION 31

I move amendment No. 108:

In page 24, line 10, to delete “each relevant committee” and substitute “the Commission”.

Amendment put and declared lost.
Section 31 agreed to.
SECTION 32
Question proposed: "That section 32 stand part of the Bill."

We have notified our opposition to the section because, as was stated in the first session of this committee, we oppose the idea of setting up a judicial appointments commission office. It is an unnecessary quango. This matter was discussed already on the first day of the committee's hearings so I will not repeat the arguments I made previously.

Question put and declared carried.
SECTION 33

I move amendment No. 109:

In page 24, in line 34 to delete “director (in this Act referred to as the “Director”)” and substitute “Secretary (in this Act referred to as the “Secretary”)”.

Amendment put and declared lost.

I move amendment No. 110:

In page 25, line 1, to delete “Director” and substitute “Secretary”.

Amendment put and declared lost.

I move amendment No. 111:

In page 25, line 3, to delete “Director” and substitute “Secretary”.

Amendment put and declared lost.

I move amendment No. 112:

In page 25, line 7, to delete “Director” and substitute “Secretary”.

Amendment put and declared lost.

I move amendment No. 113:

In page 25, between lines 10 and 11, to insert the following:

"(6) The Secretary shall be responsible to the Commission for the performance of his or her functions.".

Amendment put and declared lost.
Section 33 agreed to.
SECTION 34
Question proposed: "That section 34 stand part of the Bill."

We oppose the idea that there would be a director for this quango which will recommend about ten to 15 people per year for judicial office. We oppose section 34 for that reason.

I made clear both here and on Second Stage the importance of the functions of the director.

Question put and declared carried.
SECTION 35

Amendment No. 114 in the name of Deputy Sean Sherlock cannot be moved as the Deputy is not present.

Amendment No. 114 not moved.

I move amendment No. 115:

In page 26, to delete lines 15 to 26 and substitute the following:

“(3) Subsection (1) shall only apply to a legal academic who has qualified as a barrister or solicitor and subsequent subsections of this section, in so far as they relate to a person who is referred to in them as a ‘head of a faculty’ or ‘head of another faculty’, shall not be construed as enabling such a person to be the subject of such an appointment unless the person has qualified as a barrister or solicitor.”.

This amendment refers to the new section which it is proposed to insert into the 1961 Act and which concerns persons who are entitled to be appointed to judicial office. The ostensible intention of the proposed new section is to make the process more open and flexible, but there is a difference between the provisions included in the Bill concerning legal academics potentially qualified to be judges and the heads of Bill, as published, which I seek to reintroduce. The distinction in the heads of the Bill is that someone who has practised as a solicitor or a barrister for four years and is a legal academic could be appointed a judge. The key part of the proposed new section, as worded, is subsection (3)(a) which states "who, at the time of the appointment referred to in that subsection, is a barrister or a solicitor". It requires a higher standard. Essentially, it require the person to be a barrister or a solicitor at the time of his or her potential appointment, a restriction which I do not think is necessary. It will restrict the desire to allow legal academics, even those who are qualified, to become judges to the point where the proposed new section is of no particular additional benefit. The amendment seeks to address this issue.

I cannot accept the amendment because it would remove two very important elements from the requirements of eligibility of legal academics for appointment to judicial office. First, it would remove the requirement to be a solicitor or a barrister at the time of appointment. Second, it would remove the requirement for practical experience of the courts for a continuous number of years, namely, at least four years. The proposed section 45A to be inserted into the 1961 Act provides the additional basis for qualification for appointment as a judge. It opens up eligibility for appointment to a legal academic of not less than 12 years' standing who, immediately before such an appointment, has been employed as a legal academic for a continuous period of at least two years. In addition, such a legal academic, under the terms of the new section 45A, must (a) be a barrister or a solicitor at the time of being appointed as a judge and (b) have practised as either a barrister or a solicitor for a continuous period of not less than four years. Similar requirements, with some modification, take account of the role applying in the case of a person who may be a head of a faculty. In addressing the amendment I wish to be clear that the Government was persuaded of the need to tighten the provisions of the general scheme in order to ensure legal academics appointed to the Bench would have had an amount of practical experience of the practice and procedure of the courts. The practising qualifier, as it could be called, is an essential supplementary element and I am not disposed to dispense with it. Therefore, I cannot agree to the amendment.

I think there have been a number of judges who were legal academics and, in general, the experience has been very positive. It is also common in other countries. In America many people appointed straight to the Supreme Court come from an academic background. It is important, however, to maintain, particularly in courts of first instance, a practical knowledge of how courts operate. I would be concerned if legal academics were, say, put straight into the High Court, the Circuit Court or the District Court without any experience of appearing before courts and practical experience of how the rules of evidence operate. For this reason, I do not support Deputy Donnchadh Ó Laoghaire's amendment. However, it is an issue that needs to be looked at. Perhaps the Minister might look at it from the point of view of appointments to the appeal courts, to which someone could be appointed without the necessary practical court experience.

I take on board the Minister's point and will not press the amendment, with a view to reconsidering and perhaps redrafting it before Report Stage. The provisions need to be loosened somewhat as the section is too restrictive. I take the point about the necessity to have some practical experience, but the bar is being set too high. Provisions such as those which have been suggested by Deputy Jim O'Callaghan could be considered in that regard. It is likely that I will redraft my amendment in the light of the Minister's comments, but I ask him to reconsider the matter.

The Deputy is not pressing the amendment. However, like all members, he reserves the right to resubmit it on or redraft it before Report Stage. Section 35 is opposed by Deputy Sean Sherlock, but he is not present to outline his position.

Amendment, by leave, withdrawn.
Section 35 agreed to.
Section 36 agreed to.
SECTION 37

I move amendment No. 116:

In page 27, line 34, to delete “a relevant committee” and substitute “the Commission”.

Is the amendment being pressed?

Yes, it is for the same reasons and because it is part of the large grouping we discussed.

Is Deputy Bernard J. Durkan offering to substitute for Deputy Clare Daly because that would be the day? I welcome Deputy Seán Canney who is substituting for Deputy Kate O'Connell who was substituting for Deputy Colm Brophy.

Are the substitutes party-based?

Deputy Seán Canney is really a member of Fine Gael.

It is my understanding that, under Standing Orders, substitutes should be members of the same party.

(Interruptions).

If Deputy Seán Canney accepts the mantle, I will accept his attendance.

Deputy Jack Chambers is correct in principle. I was excluded from committee meetings because an acceptable substitute was not available. Deputy Seán Canney is welcome, but the principle should be acknowledged.

It is nothing personal.

I do not mind that the Deputy is substituting. I am very happy he is here because I want the meeting to conclude.

Has Deputy Seán Canney accepted membership of Fine Gael?

I apologise to Deputy Seán Canney, but I have been advised that Deputy Jack Chambers has raised a valid point which poses an issue for the committee.

Is it a good time to have a coffee break?

Deputies will deserve a coffee at the conclusion of the meeting. I say to Deputy Peter Fitzpatrick that it might be better to have had Deputy Bernard J. Durkan-----

That is no problem.

I apologise to Deputy Seán Canney, but there is a serious question to be answered on this issue.

The door has closed.

Deputy Seán Canney promised to give all members €10 and Deputy Jack Chambers €20.

The time allowed has elapsed.

The time allowed - eight minutes - has not elapsed. We are asking------

(Interruptions).

I note that the Chair has indicated that it is a serious question. If a member is prepared to accept the Whip in respect of the individual grouping, that should suffice. He or she does so by dint of his or her attendance. It is not my place to make suggestions or give directions to an autonomous Dáil select committee, but the Chairman has stated it is a serious question. If that is the case, he is required to establish the veracity of what has been said.

I indicated on an uninformed basis that if Deputy Seán Canney accepted the mantle of responsibility, I was satisfied to accept the substitution. However, the clerk to the committee intervened and advised me that the substituting member was required to be a member of the same party or grouping. Therefore, I made a further intervention. I welcome Deputy Bernard J. Durkan who is a bona fide member of Fine Gael and, therefore, entitled to substitute for his colleagues.

Does he have his card with him?

I thank the Chairman.

I thank Deputy Seán Canney for his attendance.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.

I move amendment No. 117:

In page 27, line 38, to delete “a relevant committee” and substitute “the Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.

I move amendment No. 118:

In page 28, line 5, to delete “a relevant committee” and substitute “the Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.

Amendments Nos. 119 to 122, inclusive, are related and may be discussed together. Amendments Nos. 121 and 122 are alternatives to amendment No. 120, while amendment No. 122 is an alternative to amendment No. 121.

I move amendment No. 119:

In page 28, lines 6 to 9, to delete all words from “has—” down to and including “procedure,” and substitute “has an appropriate knowledge of the decisions”.

This group of amendments relates to a requirement in the Bill that a recommendation for appointment to the higher courts - the Supreme Court, the Court of Appeal and the High Court - only be made if the candidate has an appropriate knowledge and experience of these courts. The Law Society of Ireland, among others, thought this was an unnecessary provision to include in primary legislation. It is not a requirement to be met in terms of eligibility for appointment to the District Court or the Circuit Court. The legislation provides for the commission to set out detailed eligibility criteria, including a statement of skills and attributes for appointment to each court. For reasons of diversity, it would probably be better if the eligibility criteria under that heading were set out by the commission rather than in primary legislation as it would facilitate greater access.

Judicial appointments are currently open to barristers and solicitors, but the bulk of them are made from the barrister profession. Only eight solicitors have been appointed to the superior courts since solicitors became eligible in 2002 for such appointment. No solicitor has been appointed as a judge of the Supreme Court and no female solicitor has been appointed as a judge of the superior courts, in spite of the fact that 51% of the membership of the Law Society of Ireland are females. There have been 90 appointments since solicitors became eligible for appointment, but only a handful have made it through, with solicitors constituting only 8% of the membership of the superior courts, even though 80% of legal practitioners in the State are solicitors. That cannot be reconciled with the public interest or the desirability to have a broadly experienced Judiciary which is reflective of the community it serves. It is too narrow. Why would this be provided for in legislation?

A small effort to draw in solicitors is made in subsection (5). However, that effort is minimal. Clearly, solicitors are pegged below barristers in the sense that personal conduct at proceedings can be taken into account by a relevant committee which would favour barristers. It also references practice and knowledge of procedure in the courts. It is necessary to have rules on eligibility and experience, but it would be far better to leave it to the commission to outline in its statement on skills and attributes, as in the case of appointments to the lower courts. That would be better with a view to encouraging diversity. That is the intention behind the amendments.

I acknowledge the strong lobbying engaged in by the Deputy on behalf of the solicitor profession. She has made an important and serious point.

However, I cannot accept the amendment for the following reason. It is essential that any lawyer seeking appointment as a judge, and particularly as a judge of the superior courts, must be in a position to demonstrate knowledge not only of that court but also knowledge and experience of the practice and procedures of the court. That is probably best garnered from working on a daily basis within the ambit of the superior court. Deputy Clare Daly's amendment No. 120 seeks to delete the text of sections 37(4) and 37(5), the purpose of which is to give guidance to the commission in assessing whether a person has the appropriate knowledge of the decisions and the appropriate knowledge and experience of practice and procedure. Section 37(4) allows for a disregard of the necessity for Court of Appeal knowledge and experience in respect of a serving judge candidate who was appointed to the Bench before the Court of Appeal came into existence in 2014. I note, however, the point made by the Deputy that in order to ensure there is a breadth of legal experience on the bench, it should not in all circumstances be confined to one arm of the profession. I have some sympathy with that. I would say that is changing, there is no prohibition in law to preclude such a change as is now taking place, particularly in recent years. As legislators, we need to be conscious to reflect certain diversity in our courts system and those who preside over it, but I do not accept that this amendment is the most appropriate way of so doing.

It is important to recall that the Courts Act is the legislation that sets out the qualifications for persons who wish to apply for appointment to the courts. Currently, any solicitor or barrister can apply to be appointed to the District Court up to the Supreme Court. Deputy Clare Daly is correct where she says that the majority of appointments to the superior courts come from the barrister profession. Similarly, the majority of appointments to the District Court come from the solicitors profession. The reason for both practices is because barristers practise more in the superior courts, whereas if one goes to the District Court, one will see that the advocacy and practice there is dominated more by the solicitors profession. I am not suggesting that either is not capable of doing the other work, and perhaps there should be more barristers in the District Court and more solicitors in the superior courts. However, the section before the committee is giving guidance to the commission and says that it should not recommend anyone for appointment to the Supreme Court, the Court of Appeal or the High Court unless he or she has an appropriate knowledge of the decisions and appropriate knowledge and appropriate experience of the practice and procedure of the courts. Irrespective of whether one is a barrister or a solicitor, I do not believe anyone should be appointed to a superior court unless he or she has knowledge of that court. It would be a virtually impossible task for someone who has never been in the court before to be put on the Bench and told to run the court. We need more solicitors to apply for positions on the superior courts. Many solicitors have been appointed. We do have a female solicitor in the High Court. It is changing over time and in a few years, I am confident that there will be a much higher percentage of solicitors in the superior courts than is now the case.

Does Deputy Clare Daly wish to speak further on the amendment?

The points that have been made are interesting. I am not sure what the solution is but I am sure that we have a problem. I agree about practice and procedure and that there should be a level of knowledge there, but the fact that later there is mention of personal conduct of proceedings, would tend to offset the knowledge of practice and procedure and would give a preference to barristers by having the two. Practice and procedure are absolutely fine, but then there is the question of having the other as well. I am prepared to look at it again when we get to Report Stage. The points that have been made are interesting and I will consider them further.

I do not disagree. I acknowledge the Deputy's comment that she will reflect on the matter between now and Report Stage. However, a strict reading of the amendment indicates that the Deputy is seeking to reduce the two requirements to one, namely that a person has appropriate knowledge of the decisions only. That is somewhat narrow. I accept what Deputy O'Callaghan has said about the knowledge of the practice and procedure on the structure and operation of the court as well as the decisions. I am sympathetic to the point being made.

Amendment, by leave, withdrawn.
Amendment No. 120 not moved.

Amendment No. 121 cannot be moved as Deputy Seán Sherlock is not present.

Amendment No. 121 not moved.

I move amendment No. 122:

In page 28, line 17, to delete “a relevant committee” and substitute “the Commission”.

This amendment similar to those in the big grouping. I am seeking to delete the reference to "a relevant committee" and replace it with a reference to "the Commission".

put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
declared carried.
Question put: "That section 37, as amended, stand part of the Bill".
Question put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Question declared carried.
SECTION 38

I move amendment No. 123:

In page 29, line 2, to delete “A relevant committee” and substitute “The Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.
Amendment No. 124 not moved.
Question proposed: "That section 38, as amended, stand part of the Bill."

It is not agreed but it is understood that a majority of the committee is in favour of such an amendment.

That is okay. The Minister's point is noted.

Question put and agreed to.
SECTION 39
Question proposed: "That section 39 stand part of the Bill."

There are no amendments to this section. Deputy Wallace has indicated that he is opposed to section 39. I invite the Deputy to outline his position.

The aim of the removal of the section, and the amendment to remove section 46 later on, is to ensure that all applicants for all judicial appointments must go through the formal application process, which requires the commission to advertise rather than undertake the expressions of interest process envisaged in section 46 when "the judicial office of Chief Justice, President of the Court of Appeal or President of the High Court stands vacant" - in other words, the most senior positions. The expressions of interest process under section 46 provides that the Minister convenes a sub-committee of the Chief Justice, the chairman and the Attorney General, and their job is to select and recommend three names for these vacancies. There is no public advertisement process. Section 46 states that "the Minister shall request the Commission to seek expressions of interest on the part of eligible persons...". I believe this allows too much scope for a non-transparent and selective approach since it leaves it to the commission to approach eligible persons.

I do not accept what the Deputy has said. I believe we dealt with that early on, during Second Stage, in ensuring that in the process, the senior appointments are made along the lines envisaged by the Bill.

Do any other members wish to address this matter before we move on to a decision? Does Deputy Wallace want to respond in any way? Is he happy that he has made his point?

Question put:
The Committee divided: Tá, 3; Níl, 5.

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.

Níl

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.
Question declared lost.
SECTION 40

Amendment No. 125 is a standalone amendment. It is not grouped or previously addressed.

I move amendment No. 125:

In page 29, line 31, to delete “may” and substitute “shall publicly”.

This is a really tiny amendment. The Bill currently provides that the commission may provide information on the selection procedures and other matters in a statement. This amendment puts an obligation on the commission to publish the information so the public can access it. I do not believe it would be a very onerous task to publish the information on selection procedures if we are talking about transparency and public confidence.

The import of amendment No. 125 is to reduce the discretion of the commission and to provide information on the selection process via public information. I do not believe the amendment is necessary. The form of statements of selection procedures, and of the requisite skills and attributes approved by the commission, are under section 57 which provides for these always to be published in any event. Section 40 provides for discretion to provide further information on those statements through such means as the commission may consider appropriate. The issue of public information is already catered for in section 57 of the Bill.

The amendment seeks to substitute "may" with “shall publicly”. I believe that the word "publicly" is not necessary because it would mean they would have to set it out in a published statement. However, it is discretionary currently and it should be mandatory that the public and applicants should know what are the information and selection procedures for somebody who wants to apply for a job, as opposed to the information not being disclosed by the commission. I support the word "shall" but I believe we could do without the word "publicly".

The purpose of the amendment is precisely to reduce the discretion and to make it an obligation, in the interests of transparency. I take the point that it is poorly worded. It is a typo. We do not need the word "publicly" but we can take that out on Report Stage.

I accept what Deputy Daly has said. We will have another look at it with regard to the wording.

I will press the amendment but obviously it will be tidied up.

Deputy Daly indicated she is pressing amendment No. 125.

I thought I heard the Deputy Daly say that the wording-----

I meant the "publicly" part. I would like the amendment included so we can then remove that word later, just in case the amendment was forgotten on Report Stage. I acknowledge that I will tidy up the grammar.

I am not minded to accept an amendment that the Deputy who proposed it has said is badly worded. If Deputy Daly was to withdraw the amendment, we could have a look at it. It is not an amendment that we should divide on. If, however, there is an admission that it is badly worded, I cannot accept it.

I admit that it is better worded than what is in the Bill now. It is my preference, ahead of what is there. I have enough problems of my own without worrying about the Minister's.

It is not agreed.

That was the expected response.

We will not fall out over it.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.

I move amendment No. 126:

In page 30, lines 3 and 4, to delete “relevant committee” and substitute “Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.
Amendment No. 127 not moved.
Question proposed: "That section 40, as amended, stand part of the Bill."
Question put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Question declared carried.
SECTION 41
Amendment No. 128 not moved.

I move amendment No. 129:

In page 30, to delete lines 15 and 16.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.

I move amendment No. 130:

In page 30, line 18, to delete “relevant committee” and substitute “Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.
Question proposed: "That section 41, as amended, stand part of the Bill."

I acknowledge that there are sufficient members present to ensure that the section, as amended, will be carried and I accept that.

I note the Minister's position.

Question put and declared carried.
SECTION 42

I move amendment No. 131:

In page 30, line 32, to delete “relevant committee has received from the Commision” and substitute “Commission has received”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.

I move amendment No. 132:

In page 30, line 36, to delete “relevant committee” and substitute “Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.

I move amendment No. 133:

In page 30, line 38, after “persons” to insert “, ranked in the order of the relevant committee’s preference” ”.

This will have to be tidied up because of earlier changes whereby we got rid of the term "relevant committees". This is about the principle of the commission having the ability to rank its choices, which is absolutely critical. The Bar Council recommended it as did the judicial appointments review committee, the membership of which comprised judges. Deputy O'Callaghan's Bill proposed the same thing and it is a reasonable proposal. If the commission does not have the power to rank, what is the point? It will have spent time and effort in analysing applications so the suggestion that it then hands everything over to Government, for it to pick which candidate it wants, is ludicrous and it would go against the whole purpose of the legislation. If we want to empower a commission and give it teeth, it will have to have the ability to rank judges. Everybody is in favour of this and it is a common-sense proposal.

We will test that claim.

This is a very important issue. I do not propose to accept the amendment for the following reasons. The issue was the subject of public discourse prior to the arrival of this Bill before this committee. Ranking, exercising preference or advocating a particular order are not contemplated in the Bill.

The question of whether the names forwarded to Government ought to be given in the order of preference was discussed by the committee at the pre-legislative scrutiny stage in January 2017. There is an important constitutional issue set out in Articles 35 and 39 of the Constitution, where the President appoints judges only on the advice of Government. The concern was that ordering candidates in order of preference would place a limitation on the Executive obligations of the Government. It would interfere with discretion that Government must maintain. I see a real difficulty with a Government being bound by recommendations in a way that reduces its authority in terms of the exercise of choice or making an informed decision. That would unduly interfere with Government's prerogative in so far as tendering advice to the President.

Deputies will be familiar with the current procedure under the Judicial Appointments Advisory Board. It considered the issue of whether to recommend applicants in order of preference and in its 2002 report it set out the view that such an order of preference would place too great a restriction on what is the constitutional prerogative of Government to select judges. That was the view of the judges 15 years ago. I do not recall in the period since then any departure from that view. I ask the committee to be mindful of the constitutional issues involved and having full regard to those issues, I do not propose to accept the amendment.

I support this amendment. I think we need to recall that sections 42, 48 and 50 are the most important parts of the legislation. We have spent hours talking about, and there is a large number of sections on, the make-up and functions of the commission. Ultimately, what we need to recognise is that the reason we are setting up the commission is so that it can make a recommendation to Government based on its expertise. At present, having gone through all the palaver of having many different groups represented on the commission, ultimately what they are being told to do is to give the Government three names for any one judicial vacancy. The Government is then in the position to pick any one of those three names or indeed it can pick any person who has not been recommended to it. The only consequence for the Government if it does not pick one of the three names is that it simply has to publish in Iris Oifigiúil that the candidate appointed was appointed pursuant to the Act and was recommended by the commission. That is the only downside, that is the function of it. I do not think that is sufficient.

In my Bill, I had a requirement that if the Government is not going to accept the recommendation of the commission that it should have to give a reasoned explanation as to why it was departing from the recommendations of the commission, without, of course, identifying any of the individuals involved.

It is worthwhile that the names are ranked. Why not do so? The Government still has the constitutional power to appoint whomever it wishes. The fact that the names are ranked does not interfere with that constitutional power. If they are listed one, two and three, the Government can go for candidate three and, if needs be, it can state that the person appointed was recommended by the commission.

I support this amendment.

I will not delay the committee unduly. The points have been well made. In an ideal world, I would not be of the view that Government should have much discretion in this area, but obviously there are constitutional considerations. In that context, it is important that the names received by Government are ranked and are clear. I have tabled amendments later which are similar to what Deputy O'Callaghan has outlined about requiring an explanation for non-appointment in relevant circumstances.

I support this amendment because it is important that candidates are ranked and that is a view supported by the Law Society and others.

Does Deputy Daly wish to respond?

The points have been well made. There is no constitutional impediment to this whatsoever. The heart of the Bill is about empowering the commission to make recommendations. If it does not rank candidates in order of preference, what is the point of going through all of this?

I would be very concerned at any departure from the current legal position, as outlined in particular by the Judicial Appointments Advisory Board regime. I know we are making substantial and significant changes to the manner in which judges are appointed, but we are not asking the people to change the Constitution and Articles 35 and 39 of the Constitution are quite clear that the President appoints members of the Judiciary on the advice of Government. If Government is to be bound by recommendations of a type that will follow this amendment, then we are significantly altering what is the prerogative of Government under the Constitution, advising the President.

Let me reiterate that this matter has been considered in the context of this very point and there has been a marked reluctance on the part of judges, the advisory board and Government to reform matters in such a way as to be constitutionally problematic. I cannot accept this amendment. I would foresee an opportunity for a very strong constitutional challenge in the event of there being a party to this process who may have been ranked in a position that appeared more favourable than that included in the recommendation of Government. This is an important legal and constitutional issue. In view of that, I am not prepared to accept this amendment.

Will Deputy Daly make a short comment?

The Minister states we should not depart from the current legislative position. The reason we have spent weeks and months adjudicating on this Bill is that the present situation needs to be altered. There is no constitutional impediment. The judicial appointments review committee, comprising judges and chaired by Mrs. Justice Susan Denham recommended that the Judicial Appointments Advisory Board should be empowered to rank candidates. It did not have a problem with that issue.

What is being said here is that the power to recommend has to lie with the commission or else there is no point in setting it up. The power to advise the President on appointments has to remain with the Government, as provided for in the Constitution. There is nothing wrong with that. The Government advises the President, but that should not prevent the Government from being limited in who it can advise on. There is no contradiction there whatsoever. We are empowering the commission, so it has to be given some teeth.

From that, it would be logical that Government would be minded at some stage to go beyond the recommendations of the commission. What we are doing in the Bill is making a significant reform by ensuring that the names of three applicant candidates come before Government and of those one will be recommended to the President. It has not been the practice of the Government to go outside the recommendations, so that in the event of the commission receiving recommendations in an order of ranking, that unduly ties the hand of Government in its advice to the President. It is a constitutional issue.

Under the Constitution, the matter of advices or recommendations to the President or a nomination of Government is a function of Government and in accepting this amendment we would be going beyond that in a way which is constitutionally questionable.

I do not propose to open this up any further. I think we are in a position to make a decision on amendment No. 133. Is the amendment being pressed?

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Durkan, Bernard J.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
Amendment declared carried.

I should note to Deputy Daly that it is likely the amendment, as adopted, will need to be revisited on Report Stage. I think, even from the Minister's perspective, a number of things have been decided which will mean that there will be a degree of tidying up when it comes to Report Stage. This will apply to everyone at some point or another.

Amendment No. 134 is in the name of Deputy Wallace. Amendments Nos. 134, 137, 150 and 151 are related and will be discussed together. Amendment No. 151 is a physical alternative to amendment No. 150. I call Deputy Wallace to open the discussion.

I move amendment No. 134:

In page 30, after line 38, to insert the following:

“(3) The Government shall nominate for appointment one of the three persons recommended by the relevant committee in accordance with subsection (2).”.

All these amendments are linked and deal with the same principle. I am seeking to insert, after line 38, that the Government shall nominate for appointment one of the three persons recommended by the relevant committee in accordance with subsection (2). The Bill, as drafted by the Government, is tinkering around the edges of stage one of a three-part process to judicial appointments. At the moment, names can be given to the Government but it has the power to ignore them all and pick someone else altogether. I know it has not done that but it can do so, and we should address it in legislation while we have the opportunity. No change at all is proposed in this Bill to stage two when the Government nominates a judge to the President. The Minister, Deputy Ross, had a provision on this in his Bill when he was in opposition but changed his mind when he was appointed to Government.

The degree to which judicial appointments in the State are conducted independently was described as "globally unsatisfactory" by the Council of Europe's Group of States against Corruption. In the 2017 EU justice score board published by the European Commission on 10 April 2017, the Commission indicated that, according to the information provided by the Irish authorities, "the government may appoint a person who is not on the list sent by the Judicial Appointments Advisory Board but in practice does not do so". Figure 57 of the report shows that Ireland has the second highest amount of Government freedom to appoint judges in the EU. Where candidates are proposed by an independent body, the score depended on "whether the executive can reject a candidate judge at all, whether it can choose only among the proposed candidates, or whether it can choose and appoint any other candidate, even if she or he is not proposed by the competent authority". It was noted that "[a]n important safeguard in case of non-appointment is the obligation to provide reasons and the possibility of a judicial review".

The relentless focus on what is really minimal change to stage one and the populous approach by the Government is over-hyping the law versus lay distinction in a deliberate tactic to distract from the real issue of Government control and political allegiance in judicial appointments, as identified by the Irish Council for Civil Liberties in its 13-page submission during the consultation process for this legislation in 2014. As the Judiciary in its letter to the Taoiseach, the Association of Judges in Ireland, in its press release, and Michael Collins SC, in his article in the Bar Review, have noted, the Bill does nothing to achieve its publicly stated purpose of removing political influence from the appointment process and, if anything, only serves to exacerbate the problem.

These amendments would have a real impact on the important stage two of the appointments process when the Government nominates a judge to be appointed by the President by restricting the Government to only choosing one of the three names provided to it by the commission. The Bill, as currently drafted by Government, does not reform stage two to any significant degree. The ratio of law versus lay members or what any commission or the Judicial Appointments Advisory Board decides will not matter if the Government of the day can continue to negate the whole of stage one and pick whomever it wishes, regardless of whether that name is included in the list of three names.

As I previously stated, I accept that the Government has not been doing this. Given that it can do it, however, it is now appropriate for us to address the issue and to ensure that it is not allowed to ignore the recommendations of the commission, particularly as we are going to such bother to set it up in the first place.

My amendment No. 151 is trying to do the same thing as Deputy Wallace's. We are trying to plug the holes in the Bill. As currently constituted, the Government can bypass the recommendations of the commission and nominate whomever it likes. We are trying to stop that. I thought the whole idea behind the commission was the independence of judicial appointments. As currently structured, the Bill provides that the Government shall "firstly" consider for appointment those persons whose names have been recommended by the commission. My amendment provides that "firstly" would be changed to "only". There is no constitutional conflict or anything like it. It is an eligibility point relating to the recommendation of the commission and I do not see the problem with it.

I do not accept Deputy Daly's contention that there are no constitutional issues here - in fact there are, very much so. The effect of amendment No. 134, in the name of Deputy Wallace, would require the Government to nominate for appointment one of the three persons recommended by the commission process - "require" being the operative word. I repeat that successive Governments down the years have not gone beyond the process as set down under the judicial appointments regime. I advise the committee of the position of successive Attorneys General going back to the mid-1990s. The position under the Constitution is such that the Government has discretion in advising the President on whom to appoint to judicial office.

Any attempt to interfere with, limit or fetter that discretion, either by an Act of the Oireachtas or otherwise, that might require the Government by law to appoint persons from a list of three is problematic. The Government must at all times remain free under the Constitution to choose a person other than a person among the names recommended by the commission.

I remind the committee that, under section 50, on the publication of a notice of appointment, and under section 51, on the requirement regarding the annual statement to the Houses, the Government must set out whether an appointment was made from the names recommended by the commission. Therefore, the Government is clearly accountable for its decision but it must be accountable in a way that does not in any way interfere adversely with the constitutional position, that is, that the Government cannot constitutionally be fettered by law in regard to the individuals it chooses to recommend to the President. The clear advice to the Government is that the acceptance of the amendment would not be in accordance with the requirements of the Constitution.

Similarly, amendment No. 137 would require the Government to nominate for appointment one of the persons recommended in the commission's process. Again, I envisage clear constitutional issues and difficulties, which have been adverted to by the Attorney General.

Amendment No. 150 seeks a change in regard to the advising of the President by requiring the Government to consider only those names recommended as opposed to considering those names first. Again, I envisage a constitutional issue. In no circumstances should the Government be restricted to considering only the names recommended because, under the Constitution, the Government enjoys full discretion as to whom it recommends for appointment. In this regard, I am drawing clearly on advices and statements of the current Attorney General and, indeed, successive previous Attorneys General.

It is important that we recall the purpose of the legislation we are discussing and the reason there have been calls for reform. The reason is people want to ensure the public interest is served by having people appointed to the Bench solely based on merit. This has not always happened. Sometimes people are appointed not on the basis of merit, but because of political or personal connections. The reason this could have occurred so readily was that, until 1995, there was no statutory regime in place that provided guidance to the Government on how it should exercise its constitutional prerogative to nominate people for appointment.

The current position is that we are trying to put in place a structure that provides advice to the Government. The Minister is no doubt considering the appointment of a Garda Commissioner. When dealing with this matter, he has the Policing Authority advising him, and the Public Appointments Service runs a competition. Although the Government has an absolute statutory entitlement to appoint a Garda Commissioner, that decision is made within the parameters of advice given. If the Minister does not follow advice, it can have a consequence, although he is legally perfectly entitled not to follow it.

What Members are trying to do in these amendments is put in place a statutory regime whereby the best candidates are recommended to the Government. Obviously, the Government itself makes the decision on whether it wants somebody recently appointed. It has complete constitutional freedom to appoint qualified lawyers to the Bench but what we are trying to provide is some guidance for that. That is what this legislation is about.

In respect of the previous amendment, the Minister said there would be constitutional frailty in ranking the individuals recommended by the commission. I disagree; there is no constitutional frailty. The commission can decide to rank three individuals from one to three. Constitutional difficulties do arise, however, in respect of the amendments we are considering, whereby the Government would be required to select one of the three people, and nobody else. Somebody could challenge this and claim it is interference with the Government's constitutional prerogative to nominate people for appointment. That would be problematic. We must realise, however, that there has to be some consequence for a Government that does not follow the recommendation. The Minister is entitled not to follow the recommendation when appointing people to the Bench but there has to be some consequence. If Deputy Mick Wallace is appointed to the Bench although he has not been recommended, the only thing the Government has to do is publish in Iris Oifigiúil that he was appointed to the Bench and was not one of the candidates recommended by the judicial appointments commission. There is no real consequence to that. It involves no real change. The circumstances are the same as those that exist at present. For that reason, Deputy Jack Chambers and I have recommended that the Government be required, if it does not follow the recommendations of the commission, to publish a reasoned explanation. It would afford full protection regarding confidentiality and the anonymity of applicants.

I cannot support the amendments, however, because they go too far in interfering with the Government's constitutional prerogative. If people in government were really serious about the reform of the judicial appointments procedure — this comment is not directed towards the Minister, Deputy Charles Flanagan — they would be seeking a constitutional referendum on the issue.

They would not be seeking to introduce window dressing by way of statute that gives the impression that there will be reform.

It is right that a Government should nominate judges for appointment. At least a Government may be thrown out of office. I would be very concerned about giving the full power of appointment to a judicial appointments commission appointed by the great and the good after competitions by the Public Appointments Service. How does one get rid of its members? The benefit of having the Government appoint people to the Bench is that if one does not like that Government's decisions, one can throw its members out of government.

I am obviously of the opinion that the Government is overstating the meaning of the constitutional provision with regard to its role in advising the President on the appointment of judges. The relevant article of the Constitution to which I understand the Minister to be referring is Article 13.9, which is a general provision on how the President exercises his powers and functions, not just in the appointment of judges. It states:

The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government, save where it is provided by this Constitution that he shall act in his absolute discretion or after consultation with or in relation to the Council of State, or on the advice or nomination of, or on receipt of any other communication from, any other person or body.

Therefore, all the Government is required to do according to Article 13.9 is advise the President in his appointment of judges. Nowhere does it state the Government, in advising the President, is in turn precluding itself from taking advice from a commission or from enacting legislation setting out a process restricting itself to just three names provided by that commission.

The ICCL submissions from 2014 suggest the Government should be restricted even further to receiving the three names ranked in order of preference, as we have been discussing. It should be obliged to nominate in order of that rank. In order to respect and not unduly fetter the Government's discretion, the proposed amendment leaves the Government the final choice of selecting one of the three names.

Reference was made previously to an article by Senator Michael McDowell, senior counsel, stating it is 100% clear that it would be unconstitutional to restrict the Government to picking only one of three names provided. A Bar Review article of 2017, by another senior counsel, states the opposite.

Senior counsel can only give their opinion as to whether something is constitutional or not but only the higher courts can hold or decide that something is constitutional or unconstitutional.

Did the Minister ever seek advice from the Attorney General, who would have had to seek an opinion from a senior counsel as to the specific question of whether it would be unconstitutional to restrict the Government's power of nomination to a list of three of names provided by the commission? If so, will the Minister tell us which senior counsel was used, the date of the opinion and whether the Government will publish it? I know the Government does not normally agree to that but given it is such a serious issue, perhaps it might on this occasion?

The advice of the Government is clear. There are constitutional consequences, particularly in the context of amendment No. 134 in the name of Deputy Wallace. If that was included in the Bill, it would direct the Government on the matter of a nomination or a recommendation. That is where there is a constitutional difficulty and issue. I acknowledge the reference to the Constitution by those here. It is important we are mindful of it. The Government decided not to seek a change in the constitutional position and not to refer this issue to the people but to reform significantly the legislation by way of statutory enactment of a Bill. It is important we do not go beyond what is constitutionally acceptable in the matter of the appointments.

I repeat that any attempt on the part of the Legislature to interfere with the constitutional position of Government on the appointment of judges would have consequences of a constitutional nature. Reference was made to the policing issue and the appointment of the Garda Commissioner, which is, of course, under way. Without digressing, let me say the recommendation forthcoming, under the law, from the Policing Authority is open to the Government to accept or reject. However, the difference with Deputy Wallace's amendment is that choice would be removed from Government in a way that is conflicting with the Constitution.

I call Deputy Daly and ask her to keep her contribution brief. We have had a lengthy airing on this particular grouping.

This is unfortunate because this is the heart of the Bill and it is the eleventh hour of the Committee Stage. That is regrettable because this whole debate has been cloaked in that it is about wresting from the Government the power to make judicial appointments. We are supposed to be here to take that away from it and exercise more democratic accountability. That is how this Bill has been sold to the public. However, the Minister is saying we cannot do that constitutionally, so this is just a puff of smoke.

The Minister said that constitutionally the Government cannot be fettered in its choice. That is not true. The Government is fettered in its choice by the law. I would love to be a judge but I cannot be appointed as one because I am not a barrister or solicitor. There are criteria there. Putting in a criterion saying a person can be appointed a judge only if he or she is nominated by the Judicial Appointments Commission is no different from putting down any other requirement in law. That is all it is. The power to advise the President still remains with Government. However, its choices are fettered all the time in law. We were sold the idea that was what we were doing here, that is, that we were trying to fetter the Government's hand in this. That is the whole intention. I do not agree with the points being made.

That is fine. I call Deputy Ó Laoghaire who will be followed by Deputy Wallace.

To restrict the Government in that regard is definitely desirable. The constitutional issue was raised in regard to ranking people but I cannot even remotely see the argument there. In this one, I can see it slightly more but I am still unconvinced. The committee or the Dáil, obviously, should not put in place any provision that is unconstitutional but I am not sure I understand or see the constitutional argument. Deputy Daly has rebutted it fairly well in respect of Article 13.9. It is a desirable end. If it is demonstrated that it is not constitutional, then I will not support it but at the moment I am unconvinced by the arguments made on the basis of the Constitution. I cannot quite see the constitutional argument being made.

It is a matter of opinion. The Government will say what it wants. We can argue against it. There are senior counsel who are prepared to say they think it is unconstitutional and there are senior counsels who are prepared to say they think it is not unconstitutional. If we are trying to do what we set out to do, why not test it properly? The opinion should be published. It is all very well to be hiding behind the Attorney General. He comes up with these so-called opinions and does not even back them up. That does not stack up. If we are going to be transparent, then we should publish the opinion of the Attorney General and see if it stacks up. I have talked to people in the legal area and they said this would not be a problem in terms of the Constitution. The Government said it is. Why not publish the opinion from the Attorney General, if that is what it states? Is the Government just hiding behind the Constitution?

In the absence of any other contribution, does the Minister want to comment?

This is not the eleventh hour, as Deputy Daly said. Any suggestion this is being rushed through would be doing the Chair a disservice. We are anxious to ensure there is proper and adequate time for debate and proper and adequate scope to ensure that every section of the Bill is considered fully. My difficulty with this particular amendment is that it is mandatory. Deputy Wallace states in his amendment that "[t]he Government shall nominate for appointment one of the three persons recommended by the relevant committee in accordance with subsection (2)." To my mind that conflicts with a requirement that the Government must, under our Constitution, remain free to choose any of the persons or to choose a person other than from among the names recommended by the commission. That is the prerogative of Government under our Constitution.

Reference was made to the international stage. If we examined practices in other countries referred to by the Deputies, we would also see a choice from among a number of recommended candidates. That will be the position here, having regard to our Constitution. A number of names would be considered, as recommended by the commission. The President would then be advised, under the Constitution, as to the position of Government as far as those recommendations are concerned. Anything that would narrow that is constitutionally unsound and I am unable to recommend acceptance of it.

I thank the Minister for his concern for me.

There is probably not as much in terms of difference between Fine Gael and Sinn Féin as people think. The 2017 EU justice scoreboard, in a report published by the European Commission in April 2017, indicated that we were the second worst in Europe for Government interference in the appointment of judges. We will probably still be the second worst in Europe after the Bill is published. That is all I have to say.

I do not know what the Deputy means by "the second worst". It is far too easy to cast aspersions about a process and state that it has served citizens in a way that is less than optimal during the years. I do not accept that; I strongly reject it. I ask the Deputy to give evidence of any situation where there has been what he might describe as undue politicisation.

I am only pointing out that the EU report shows that Ireland has the second highest level of Government freedom to appoint judges in the European Union. That is all I am saying. It means that we have the second highest level of political involvement in the appointment of the Judiciary. I am saying that unless we change things dramatically, we will still have one of the most politically oriented and influenced methods for appointing judges.

Having regard to this legislation, people will agree and accept that we are going through a process of significant reform of the manner in which members of the Judiciary are appointed.

Amendment put:
The Committee divided: Tá, 3; Níl, 5.

  • Daly, Clare.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Chambers, Jack.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
Amendment declared lost.
Question proposed: "That section 42, as amended, stand part of the Bill."

I make the same point that I made on section 41 insofar as acceptance of the section is concerned.

Question put and agreed to.
SECTION 43

I move amendment No. 135:

In page 31, line 8, to delete “relevant committee has received from the Commission” and substitute “Commission has received”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

I move amendment No. 136:

In page 31, line 12, to delete “relevant committee” and substitute “Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

I move amendment No. 137:

In page 31, between lines 16 and 17, to insert the following:

“(4) The Government shall nominate for appointment one of the persons recommended by the relevant committee in accordance with subsection (2).”.

Amendment put:
The Committee divided: Tá, 3; Níl, 5.

  • Daly, Clare.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Chambers, Jack.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
Amendment declared lost.
Question proposed: "That section 43, as amended, stand part of the Bill."

I ask for my disagreement to be noted.

Question put and agreed to.
SECTION 44

I move amendment No. 138:

In page 31, line 18, to delete “relevant committee” and substitute “Commission”.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

Amendment No. 139 has already been discussed with amendment No. 127. Is the amendment being pressed?

This amendment was not actually discussed because Deputy Sherlock was not here.

I beg your pardon.

We skipped over the grouping that included amendments Nos. 127 and 128.

You are quite right.

I move amendment No. 139:

In page 31, between lines 28 and 29, to insert the following:

“(3) If the Commission cannot, in accordance with this Act, recommend to the Minister any names of persons to fill a judicial vacancy, it shall invite, through means of advertisement, the making of applications by persons to be considered for selection, that is for their being selected to be the subject of a recommendation for appointment to judicial office, at three-monthly intervals until such time as the Commission is satisfied, subject to section 37 and section 38, to recommend at least one person to the Minister to fill the judicial vacancy concerned.”.

I will be brief. This amendment is slightly different. It deals with the situations where the commission cannot in good conscience recommend any applicants to the Government for appointment. This is what we are dealing with.

At present, the Bill provides for the commission to send on the names and résumés to the Government and the Government gets to pick whoever it likes. We were told the whole reason behind the Bill was to avoid that type of situation.

My amendment provides that if the commission believes there is no one whom it could in good conscience recommend, then I do not think anyone on the list should end up as a judge. The amendment provides for re-advertising the appointment within a three-month period. I imagine the circumstances would be rare but I believe we need the provision. Otherwise, it is simply a free-for-all for the Government and it can pick whoever it likes. That is what we are supposed to be moving away from.

Amendment No. 139 was not previously discussed, as Deputy Daly has pointed out. Do you wish to address it, Minister?

What we see here is a proposal to add a new instruction to the commission where it is unable to recommend any names to the Government in respect of a vacancy. The position at present where this would arise is that the commission would report to the Minister the names of all eligible people who had applied, though none were recommended by it. The Government would then exercise its constitutional prerogative, if satisfied, to so advise the President to appoint one of the eligible persons.

I am unsure whether Deputy Daly's proposal represents a solution to the issue or challenge to which she refers. It would see the commission going back into a loop, maybe even an endless loop, of quarterly attempts to fill a post until it finds someone that it deems suitable. There may be several reasons why it is not in a position to recommend at least one of the candidates.

At the end of the day, the issue of the Government's constitutional prerogative arises, against which all sections are being debated and will be consequently enacted. It may be that a perfectly suitable person has made himself or herself known to Government. That person may not have been prepared for whatever exceptional reason to apply to the commission but may become available for appointment by the Government. Anyway, I would find it too difficult to accept any change or amendment that might in any way adversely interfere with what is, a Cheann Comhairle, the constitutional prerogative of Government.

Go raibh maith agat for the promotion. I enjoyed it for a moment.

I believe the Minister has proven my point in some ways. He said that if a good person was out there who became available for Government but did not make himself or herself known to the commission, then the Government could hand-pick that person. However, if a good person was out there, he or she could be nominated within the three months when the commission re-advertises. That person, presumably, would come forward. If the person was that good, presumably, the commission could recommend him or her.

At the moment, the Bill provides that if the commission cannot recommend anyone, it sends the entire list to Government. The Bill is silent on what happens next. Basically, members of the Government can throw their eyes over and decide all those on the list are crap and opt to get someone else or they might decide the names on the list are not great but decide to take one of them anyway.

I imagine these situation are rare. To be honest, if the commission cannot recommend anyone, no one on the list should end up as a judge. It is perfectly reasonable to say the position should be re-advertised. Let us suppose the Government or some other body believes a great candidate has become available. Let us suppose, for example, that Deputy Jim O’Callaghan has become available. Then they could ask him to apply to the commission and let the commission test him. I am actually more convinced about it now.

I do not need it.

You are passing as a result, Deputy O’Callaghan. You were next to speak.

Deputy O’Callaghan is afraid that he will be speaking for the job.

That is the impact of it. In the absence of any other member indicating, do you wish to come back in, Minister?

Amendment No. 128 strays outside the structure of the Bill. Let us see what we can do between now and Report Stage. I am rather conscious of the need to ensure that the constitutional prerogative of Government is at all times preserved and in no way interfered with in a way that might give rise to some difficulty.

I remind the Deputy that I know of no relevant circumstance in recent years since we have had the Judicial Appointments Advisory Board process. The process is such that there is an annual advertisement or invitation for people to express their interest to make an application. That tends to form a process that is not unsatisfactory. I know of no case where the Government decided that each and every person on a list does not accord with what the stated intention of the Government might be in its relationship with the present. We will have another look at it, but I am conscious of the constitutional position.

Having drawn a breath, Deputy O'Callaghan, do you wish to comment?

There is a slight difference between the old regime and what is proposed under the new regime. Under the old regime, there would be occasion when the Judicial Appointments Advisory Board would not make a recommendation of names to Government because it could not recommend sitting judges. For example, let us suppose there was a vacancy on the Supreme Court or the Court of Appeal and the Judicial Appointments Advisory Board was of the opinion that the vacancy should be filled by a sitting judge. In that situation, the board would not make a recommendation to Government. In a way, that could be interpreted as a message being sent. However, under the new legislation, any judge who wishes to apply must go through the commission process. It is slightly different.

I am not really providing any definitive clarity on my attitude to the amendment but it is a point that deserves to be made because a different issue arises. The point being made by Deputy Clare Daly's amendment is that if the commission does not find an individual to recommend, then it would be required to go back through the process again. There is benefit in that. Otherwise, if the Government does not get a recommendation, it could simply decide to nominate someone.

On the other hand, we have gone through the process. We have seen the commission arrive at a determination whereby, having regard to the number of persons under consideration, it was not prepared to make a recommendation to Government. What would change in the terms of reference in having a second round or another round? What might happen to ensure that on the second occasion after a lapse of time the commission would be minded to come back with a ranking of first, second and third in accordance with the process the Deputy would see as being optimal?

I do not find that argument rational. Let us suppose the commission was looking at candidates and found that it could not recommend any of them.

Does it mean we will leave a vacancy and appoint no one? Will we just let the Government pick its political friends for the job or will we ask the commission to have another trawl to see if it can come up with someone fit for the job?

It may be that the outcome will not be the same. However, we are talking about transparency and procedures. The Minister used a scenario in which the board could not recommend anyone, the Government said all the recommendations were brutal but had a person in mind and appointed that person. What is wrong with informing the individual that the job would be re-advertised, he or she could apply for it, the commission would then decide on it and it would then go back to the Government? We want to set up a commission which evaluates and scrutinises this in a fair and transparent manner. I think that is the best way of doing it.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

Amendments Nos. 140 to 148, inclusive, are related and may be discussed together.

I move amendment No. 140:

In page 31, to delete lines 29 to 40.

This amendment proposes to remove the obligation on the commission to forward the names and the application packs to the Minister for review. It will allow instead for the position to be re-advertised.

Vacancies must be filled and appointments must be made. I do not believe they can be left to a circular process of quarterly meetings. I am not sure if I can accept the premise that we have a commission sent into a loop of reruns in an attempt to fill a vacancy. Parallel to that, we have the important prerogative of the Government to select a candidate for appointment by the President. I am not going to rerun the constitutional arguments but vacancies must be filled, appointments made and the courts need to have their business transacted. Any element of doubt or reversion to quarterly meetings which might not be in a position to produce a result is, at best, uncertain and, at worst, very damaging.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Amendments Nos. 141 to 143, inclusive, not moved.

I move amendment No. 144:

In page 32, line 1, to delete "relevant committee" and substitute "Commission".

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Question proposed: "That section 44, as amended, stand part of the Bill."

I wish to have my opposition noted.

It is noted.

Question put and declared carried.
SECTION 45

I move amendment No. 145:

In page 32, line 5, to delete "relevant committee" and substitute "Commission".

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

I move amendment No. 146:

In page 32, lines 6 to 10, to delete all words from and including "Minister", where it secondly occurs, in line 6 down to and including line 10 and substitute "Minister particulars of the person’s education, professional, qualifications, experience and character.".

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.

If amendment No. 147 is agreed, amendment No. 148 cannot be moved.

I move amendment No. 147:

In page 32, to delete lines 11 to 14.

This is the same matter and it removes the circumstances where the commission cannot agree to nominate anybody and it takes out its ability to send on the stuff to the Minister.

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Amendment No. 148 not moved.
Question proposed: "That section 45, as amended, stand part of the Bill."

I wish to have my opposition noted.

Question put and agreed to.
NEW SECTION

Acceptance of amendment No. 149 involves the deletion of section 46 of the Bill. This is a new grouping and amendments Nos. 149, 186 and 187 are related and will be discussed together.

I move amendment No. 149:

In page 32, between lines 16 and 17, to insert the following:

Appointment as Chief Justice, President of the Court of Appeal, and President of the High Court

46. (1) Where—

(a) the judicial office of Chief Justice, President of the Court of Appeal or President of the High Court stands vacant, or

(b) the Minister reasonably apprehends that any of those offices will stand vacant,

the Minister shall request the Commission to seek expressions of interest on the part of eligible persons who wish to be considered for appointment to such office.

(2) Upon receiving the expressions of interest referred to in subsection (1) the Commission shall consider the suitability of all eligible persons expressing such interest and recommend, based on merit, to the Government, ranked in the order of the Commission’s preference, the 3 most suitable candidates for appointment to the judicial office referred to in subsection (1).

(3) The Commission may accept expressions of interest from eligible members of the Commission.

(4) In deliberating or making a recommendation to the Government pursuant to this section, the eligible members of the Commission who have expressed the interest referred to in subsection (1) shall not sit as members of the Commission.

(5) If the President of the Court of Appeal has expressed, in relation to the judicial office, the interest referred to in subsection (1), the next most senior judge available shall sit in substitution on the Commission, that is to say whoever of the judges specified in paragraphs (b) to (k) of section 9 (substituted by section 28 of the Court of Appeal Act 2014) of the Courts of Justice Act 1924 ranks first in precedence (after the President of the Court of Appeal) in accordance with said section 9 and who is available to serve on the Commission (excepting for this purpose any such judge who, in relation to the foregoing judicial office, has expressed the interest referred to in subsection(1)).

(6) If the President of the High Court has expressed, in relation to the judicial office, the interest referred to in subsection (1), the next most senior judge available shall sit in substitution on the Commission, that is to say whoever of the judges specified in paragraphs (c) to (k) of section 9 (substituted by section 28 of the Court of Appeal Act 2014) of the Courts of Justice Act 1924 ranks first in precedence (after the President of the High Court) in accordance with said section 9 and who is available to serve on the Commission (excepting for this purpose any such judge who, in relation to the foregoing judicial office, has expressed the interest referred to in subsection (1)).

(7) If the Commission, having considered the suitability of all of those persons who have expressed the interest referred to in subsection (1) decides that it cannot recommend to the Government the names of 3 persons for appointment to the judicial office referred to in subsection (1) but can recommend the names of a lesser number of persons for that purpose, then it shall recommend to the Government the names of that lesser number of persons for appointment to the judicial office so referred to.

(8) The cases to which subsection (7) applies include a case in which the number of eligible persons who, in relation to the judicial office concerned, have expressed the interest referred to in subsection (1) is less than 3.

(9) If the Commission cannot, in accordance with this Act, recommend to the Minister any names of persons to fill a judicial vacancy referred to in subsection (1), the Minister shall request the Commission to seek expressions of interest on the part of eligible persons who wish to be considered for appointment to such office at three-monthly intervals until such time as the Commission is satisfied, subject to subsection (2), to recommend at least one person to the Minister to fill the judicial vacancy concerned.

(10) In this section "eligible person" means a person who the Commission is satisfied is qualified for appointment to the judicial office concerned by virtue of section 5 or 45A of the Act of 1961.

(11) In this section "eligible member" means a member of the Commission who the Commission is satisfied is qualified for appointment to the judicial office concerned by virtue of section 5 or 45A of the Act of 1961.”

I will try to be brief. The general idea of the group of amendments is to do away with the senior judicial appointments committee proposed in the Bill and instead have the commission as a whole do the job of making appointments to the role of Chief Justice, President of the Court of Appeal and President of the High Court. At present, the Bill envisages a committee made up of the Chief Justice, the Attorney General, the chairperson and possibly the Minister to make the most senior judicial appointments. The Minister's presence in this is not clear. The Bill speaks about the Minister convening a meeting but it is not really clear what his or her role would be on it. It would be good to have it clarified. It is a contradiction in the Bill and I would like to see the commission doing the job. I do not like the political composition or the small size, and the fact that the commission would be sidelined in such critical appointments is not good. What is the point in going to all the trouble of setting up a commission like this and then giving the job to a tiny committee at the side for the most important appointments?

This amendment would add other provisions to deal with senior judicial appointments, such as empowering the commission to rank them, as we discussed. I will not go over that again. It would also fix what might be a loophole in the Bill, as if the commission cannot recommend three people there would be the ability to recommend fewer. That is not currently provided for in the Bill. There is also an advertising element. This would get rid of that mad committee, give the power to the commission and tidy up some other elements.

There will be plenty of tidying up after this.

With reference to the position of the Minister, the Deputy is aware that this was the subject of debate at the pre-legislative scrutiny phase and there was reference to the Minister in the general scheme that is no longer evident. The existing section 46 procedure involves the setting up of an advisory committee consisting of the Attorney General, the chairperson of the commission and the most senior available appropriate judge who is not an applicant to seek expressions of interest and make a recommendation on the three names to the Government. The amendment seeks to transfer this expressions of interest process to the commission and requires the commission to rank its recommended candidates. Where there are no recommended candidates, the expression of interest process is to be rerun on quarterly intervals as mentioned.

I stress the importance of the special advisory committee procedure in respect of these top posts. This was designed to take these three posts and their very special and important requirements out of the mainstream commission process, while at the same time ensuring the commission was present in the process via the chairperson. There are considerations at play to ensure those people who would be the very best candidates for these top jobs would not be deterred in any way from putting their names forward. I have already mentioned and must stress again the constitutional prerogative of the position of the Government. I have already mentioned the three-month loop that I understand is being inserted in the Bill in any event.

The critical positions of the Chief Justice, the President of the Court of Appeal and the President of the High Court cannot be left in this loop type of arrangement. We cannot envisage a case in which these positions remain vacant for extended periods. That is why the concept is to have a special requirement, having regard to the seniority of the positions. I am minded to listen carefully to the views and I do not really have a closed mind to these special procedures. Nevertheless I see difficulties with leaving these matters of import to the mainstream commission process.

There is a requirement not in the Bill or this amendment. A person should not be appointed as Chief Justice, President of the Court of Appeal or President of the High Court unless the person is a judge. If a barrister can be made Chief Justice or a solicitor can be made President of the Court of Appeal, it would be like a person who has never been a teacher becoming a principal of a school. On Report Stage, Deputy Chambers and I will consider putting down amendments in that respect.

The explanation of the Minister against this proposal appears to be that because these are such important positions, we would not want the commission dealing with it. In a way it is an indictment of the commission. This has nearly gone full circle because the process has become so complicated. We are chasing our tails to ensure everything is put in place. The Government has put it in the Bill that these positions would be dealt with separately because they are so important. They are so important it seems they cannot be left to the commission. I am not desperately happy with Deputy Daly's amendment but to be consistent in the approach to the Bill, I will support it.

The legislation clearly indicates "the Minister shall convene a meeting of the following persons" - the Chief Justice, the chairperson and the Attorney General - and "those persons, so convened, shall be known as the Senior Judicial Appointments Advisory Committee". I am not clear on that. The Minister's role is still there, although the Minister has argued it is not.

The question of whether the position is vacant is a side argument. It is a question of whether the commission or this committee evaluates it. The points have been made. We are setting up a commission; of course it should have this job.

The Minister's position is to convene the meeting. The Minister would not be present at the meeting and would not be exercising any power or authority over the conduct of the meeting. It is rather the calling together of the persons that is envisaged.

I thank the Minister. No other member is indicating so I propose to move on. Is the amendment being pressed?

Amendment put:
The Committee divided: Tá, 5; Níl, 3.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.

Níl

  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • O'Connell, Kate.
Amendment declared carried.
Section 46 deleted.

As amendment No. 149 has been accepted, we have a new section 46.

The Minister has a meeting with which we do not want to interfere. It has been almost four and a quarter hours. We are almost there, however. A very short opportunity would clear the remainder of the Bill. Is the select committee willing to meet a second time next week on Thursday afternoon? We have availability of a room this afternoon but I expect members will have had their fill of this for one day. We have the room available from 2 p.m. next Thursday.

If we have everybody there, we will get through it a lot quicker. I do not think there is really any talking left.

We are almost on the home strait.

The voting block will be on in the Dáil before that.

Yes, it will be all done and dusted. Would that work with the Minister's schedule?

I would be very keen to make it work.

I thank everyone for their attendance and Deputy Kate O'Connell for her guest appearance.

Progress reported; Committee to sit again.
The select committee adjourned at 1.20 p.m. until 9 a.m. on Wednesday, 14 February 2018.
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