I welcome the Minister back to the House. We were dealing with amendments Nos. 3 to 5, inclusive, which are related. Senator Norris was in possession. We had substantial debate on the whole area of the Group of States against Corruption, GRECO, report, which is not directly related to the three proposed amendments to section 2. I respectfully suggest that we deal specifically with amendments Nos. 3, 4 and 5, in that order, and that we move on from the issue of the GRECO report and its possible implications. That is only my suggestion. Senator Norris was in pole position. I am sure he will adhere to my request.
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
I will find ways around it. I welcome the Minister back. It has been a long debate. I like to think I-----
I will be strict about contributions being relevant to the amendments. I do not want people wandering about too much. I must be frank. Late last night and yesterday afternoon I felt that we went beyond the bounds of matters relevant to the amendments. On Committee Stage we cannot wander onto general discussions on issues such as the GRECO report. I will give the Senator some time to make his point.
I thank the Cathaoirleach very much. As I said, I welcome the Minister back to the House. It has been a long debate. I would like to think I have good personal relations with the Minister. We both have very strong connections with County Laois. I find him a charming-----
It is like the Senator says that all the time.
I find him a charming and very decent Minister. We had a little tousle about whether he regretted the vote. I have looked-----
The Senator reminds me of someone fattening the turkey before the kill.
I beg the Cathaoirleach's pardon.
The Senator reminds me of someone fattening the turkey before the kill at Christmas.
I would not dream of comparing the Minister to a turkey. We had a little tousle about whether the Minister regretted the vote. I have looked up the record. It says that Deputy Charles Flanagan said:
The vote is a great pity. I do not have anything to do with that.
To which I said "The Minister regrets the vote." That was my translation of, "The vote is a great pity." I am not quite sure what the Minister meant at that point. It might have been a slip of the tongue.
I respect the vote of the Seanad. What else can I do?
I know that but the Minister said it was a great pity.
No. He said he respected the vote, not that he regretted the vote.
No, he said the vote was a great pity.
It was a great pity that the House had a vote.
That is fine. Let us move on.
This is all superfluous.
Is the Senator on amendment No. 3?
I am on amendments Nos. 3, 4 and 5. The GRECO report has a degree of relevance, particularly with regard to amendment No. 4, which refers to the role of the chairman and to the chairman being a lay person. GRECO has expressed specific views on this.
The Government has suggested there was indepth consultation with the Judiciary. The Judiciary has taken the extraordinary step of putting out a statement that this is not true, and that it is incorrect and a mistake.
With regard to the question of GRECO, the Dáil spent ten hours last Tuesday, Wednesday and Thursday debating the Bill and there was not a single reference to the GRECO report. I believe the Seanad is making up for that deficiency. GRECO stated it has significant concerns about the composition of the commission as proposed in the Bill. It would place judges in a clear minority position in favour of strong lay representation, including the chairperson. This is not in line with European standards. GRECO's position, as clearly expressed in the evaluation report, is that the composition of the judicial appointments board, consisting of a majority of judges and chaired by the Chief Justice, was considered suitable for the selection procedure. Here is something from GRECO that is directly applicable to amendment No. 4.
I understood that nobody had seen or read the GRECO report, although it may be in the possession of the Minister. I get the impression from Senator David Norris that he has actually read the GRECO report.
It was made available to members of the Church of Ireland by special commission or decree.
Senator Boyhan and I have both seen something that purports to be the report. I can at least talk a little about what I believe is in the report because the Minister talked about it when he said there were no earthquakes and that we would not be upset and all this kind of stuff. I am just using what I understand to be the GRECO report. It certainly comes across in the flavour of the language and the seriousness that it is the GRECO report. It very clearly expresses the belief that the chairperson should be the Chief Justice. I have tabled an amendment to that effect. I will leave it at that for the time being.
Is the amendment being pressed?
It is not my amendment. It is in the name of Senator Ruane.
Since she is not here, I shall put the question.
I move amendment No. 4:
In page 8, lines 17 and 18, to delete "and includes the chairperson".
I second the amendment.
- Bacik, Ivana.
- Boyhan, Victor.
- Clifford-Lee, Lorraine.
- Daly, Mark.
- Horkan, Gerry.
- Humphreys, Kevin.
- McDowell, Michael.
- Nash, Gerald.
- Norris, David.
- Wilson, Diarmuid.
- Burke, Colm.
- Burke, Paddy.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Maria.
- Coghlan, Paul.
- Conway-Walsh, Rose.
- Conway, Martin.
- Devine, Máire.
- Feighan, Frank.
- Gavan, Paul.
- Hopkins, Maura.
- Lawlor, Anthony.
- Lombard, Tim.
- Mac Lochlainn, Pádraig.
- McFadden, Gabrielle.
- Mulherin, Michelle.
- Noone, Catherine.
- O'Donnell, Kieran.
- O'Mahony, John.
- O'Reilly, Joe.
- Ó Donnghaile, Niall.
- Reilly, James.
- Richmond, Neale.
- Warfield, Fintan.
I move amendment No. 5:
In page 8, between lines 34 and 35, to insert the following:
"(3) A person is employed in the service of the State if he or she is-
(a) a member of the Garda Síochána,
(b) a member of the Defence Forces, or
(c) a civil servant in the Civil Service of the Government or the Civil Service of the State.".
- Bacik, Ivana.
- Boyhan, Victor.
- Clifford-Lee, Lorraine.
- Horkan, Gerry.
- Humphreys, Kevin.
- McDowell, Michael.
- Nash, Gerald.
- Norris, David.
- Wilson, Diarmuid.
- Burke, Colm.
- Burke, Paddy.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Maria.
- Coghlan, Paul.
- Conway-Walsh, Rose.
- Conway, Martin.
- Devine, Máire.
- Feighan, Frank.
- Gavan, Paul.
- Hopkins, Maura.
- Lawlor, Anthony.
- Lombard, Tim.
- Mac Lochlainn, Pádraig.
- McFadden, Gabrielle.
- Mulherin, Michelle.
- Noone, Catherine.
- O'Donnell, Kieran.
- O'Mahony, John.
- O'Reilly, Joe.
- Ó Donnghaile, Niall.
- Reilly, James.
- Richmond, Neale.
- Warfield, Fintan.
Amendments Nos. 6, 7 and 110 are related and may be discussed together by agreement. Is that agreed?
No, it is not agreed. My amendment is amendment No. 7 and while I see that amendments Nos. 6 and 110 are very closely related and see the reason for the grouping, I would prefer my amendment No. 7 to be dealt with separately because it is not so closely associated. I do not know what the view of Senator McDowell is.
If the House is agreeable we can do that. Is that agreed? Amendment No. 7 will be dealt with separately.
We are dealing with amendments Nos. 6 and 110, with amendment No. 7 excluded.
I move amendment No. 6:
In page 9, between lines 24 and 25, to insert the following:
“7. Nothing in this Act shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge.”.
This amendment echoes something the Minister said the other day in the course of the discussion we had on the GRECO report. The Minister said that it should be understood that this Bill does not change the fundamental architecture whereby under our Constitution it is the Government and the Government alone that makes its decision on whom to recommend to the President for appointment to the Judiciary. It is very important that remarks attributed to a Minister, whom I shall not name, but whom I incorrectly described yesterday as a plaintiff when in fact he was not a plaintiff to the proceedings to which I referred yesterday - I just want to correct the record-----
A Minister who shall not be named, but who is not in this House.
Exactly. It is certainly not-----
It is not the Taoiseach.
That is very important for the record. Thank you both.
It is certainly not the Minister who is here, but a Minister-----
Senator McDowell without interruption.
A Minister, whom I shall not name, said that the purpose of this Bill was to take the appointment of judges out of the hands of politicians.
As I said yesterday, this is strange coming from a person who, when in opposition, proposed that a committee, consisting of Opposition politicians in the main, should decide who should be appointed to the Bench. He proposed an amendment to the Constitution to that end.
I want to emphasise that the Constitution confers on the Government of the day the duty and the right to recommend and advise the President of persons to be appointed to the Judiciary. In our system, the Government is composed of elected politicians. As has been done in favour of this Bill, to take away from them the function of advising the President as to who should be a judge is a constitutional falsehood. Unless there is a referendum, that function remains vested in the Government. To claim that the Government has somehow ended cronyism and taken the appointment of judges out of the hands of politicians is simply false. Let it be remembered that, no matter what is done in this legislation, this underlying constitutional reality remains unaffected. The Government of the day must take responsibility and must make the ultimate choice as to whom it advises the President should appoint. There is no way around that or no way of avoiding it under our current system. To make a false claim that one is somehow preventing the Government from appointing people who are eligible to be appointed under this or any other legislation is to pull a fast one on the community.
It is not the first time the Minister in question has done that.
It is trying to pull the wool over the public's eyes on this matter.
It is not the first time he has done that either.
I am glad Senator Norris is like a Greek chorus in this.
I will restrain myself from doing the actions of the Greek chorus, however.
Senator Norris is in great form today.
Anybody who puts as much effort as some individuals have done in order to get to the Cabinet table and park their feet under it, should not be there if he or she is not willing to accept responsibility and personal accountability for the appointment of judges. In the end, this legislation, in whatever shape or form in which it is passed, cannot transfer responsibility for the choice of judges from the elected Government of the day, or each member of the Government, to any other body. If one cannot stand the heat in the kitchen, one should not be there. If one repudiates the role the Constitution gives one in the context of making decisions as to who should be appointed to the Judiciary, one should not be in government. It is shameful to pretend that one is a member of the Government if one somehow abdicates one's responsibility for carrying out that function.
This is important. The Minister will doubtless internally agree, even though he will not nod his head. The delay we have encountered for the past year or two in appointing judges on the basis that this legislation has not yet been passed is unconscionable. Very good appointments have been made by the Government in the recent past. There was no reason not to make them. There was no reason either, however, to go on an individual ministerial go-slow or to take a non-co-operation tack in order to prevent the filling of judicial vacancies.
Yesterday morning, I heard a High Court judge complain of the absence of judicial resources. There are vacancies to be filled. There should be more judges appointed, not fewer. If the judicial system is to function, we not merely must have more judges, the Department of Justice and Equality, through the Courts Service, is going to have to face up to this and put its hand in its pocket in order to give judges assistance in the discharge of their functions. No justice Minister, past or present, myself included, and no senior civil servant, including every honourable and decent civil servant I have ever met, would accept the duties that a High Court judge performs with the tiny resources given by way of support. The House should consider what it is like after the end of a three-week case to be told that one must deliver a written judgment, which sometimes may run to 100 pages, analysing the arguments of both sides, ruling for or against the legal arguments on both sides and analysing the evidence and ruling on its credibility. How long would one need to carry out that function without any assistance whatsoever? How would one deal with this while the president of the court says he needs one back the day after tomorrow to do another case because there are inadequate judges and that the whole system will collapse if one does not keep hearing cases while reserving judgments? No Minister could function on that basis.
I have had the honour of being a Minister and of serving as Attorney General. One could not discharge the functions of either office without people drafting and putting forward analysis pieces in private or without having secretarial and research support to assist one in carrying out one’s functions. However, we ask judges of every rank to carry out their functions with the most tiny and exiguous support. They have one junior adviser each, who do not command big salaries, or researchers as they are called. That researcher must frequently act also as the court messenger for the judge. That is the function that used to carried out by judges’ tipstaffs of getting the books while a court is sitting and sending messages to other judges. That is the only support we give to judges of the High Court, the Court of Appeal or the Supreme Court. Will Members consider the pressure that is on any man or woman, over the years, to carry out that function?
I strongly believe that our biggest preoccupation, especially now we are the only common law country left in the European Union, must be to ensure that the quality of the administration of justice in Ireland is excellent and speedy by international standards and that the jurisprudence of the Irish courts measures up to the best international standards. These are important issues. Foreign direct investment companies, American in particular, come to Ireland because they can understand our legal system. They can lift a judgment and understand how a case was decided. Much more importantly, they can understand an entirely independent and arbitral Judiciary will listen to both sides in a case and deliver a reasoned judgment at the end. Contrast that with the European Court of Justice, in which a series of judges sit quietly and deliver one judgment. They are precluded from giving any dissenting judgment. If they do not deal with the arguments of one side or another on a particular issue, there is nothing that can be done about it.
That is the way their system works. At least the European Court of Human Rights allows for dissenting opinions. The European Court of Justice does not. We need really excellent men and women to discharge the function of being judges in Ireland. Merit-based appointment means that a person shows excellence in doing his or her job. It does not mean that he or she deserves it in some kind of old pals act way. It means that he or she is the best person to carry out that judicial function. This particular legislation is missing an opportunity to deal what is weakest in our judicial system and what is most vulnerable about it, which is that it is under-resourced. Instead of identifying that problem, it is erecting the notion that cronyism is somehow a problem with our Judiciary and that cronyism in appointments is, or has been, a problem that has done serious damage to the Irish judicial system in the past. It has not.
It is important that the next thing I wish to say is said again for the benefit of one particular Minister who is not here. When it comes to appointing a judge to the Supreme Court, whether a man or a woman, the decision as to who should be appointed does not reduce itself to some statutory formula or whatever. When one comes to consider how a vacancy in the Supreme Court should be filled, be it a vacancy for an ordinary judge or the Chief Justice, one has to look at one issue, namely, what kind of court are we creating overall? Is it reformist, conservative or liberal? These are the questions one has to ask oneself when one is in government. Having been Attorney General, Minister for Justice, Equality and Law Reform, and Tánaiste, I know this. One has to make decisions about men and women not only by virtue of how well they know the law but based on the kind of court one wants to create. Does one want to create a court which will be judicially activist or does want to create one which will be reasonably conservative? Does one want to have a court that is likely to clash with the Executive regularly or one which is less likely to do so? Does one want a court which is going to be totally pro-European in its outlook or does one want to create a Supreme Court which will remember the sovereignty of the Irish people as well? Those are the kinds of questions that actually did decide, in the round, who became members of our Supreme Court.
It is proper for those decisions to be made only by the Government of the day, not by some self-appointed group of people who think they know better who should be on the court by reference to the candidates' socioeconomic backgrounds or whatever. I am not trying to trespass on the next amendment proposed by Senator Bacik, which is equally important.
I hope the Senator will forgive me but surely the Supreme Court's first duty is to uphold the Constitution.
That is the point. Upholding the Constitution-----
That was an excellent intervention.
It was an excellent intervention, if I may say so. I welcome that remark but the point is that the Constitution is what the Supreme Court says it is and it ultimately means what the Supreme Court says it means. Therefore everybody on any Supreme Court makes a declaration to uphold the Constitution and the laws. However, in the minds of different people who might or might not be appointed to that court, there could be very different conceptions of what the Constitution actually means with regard to, for example, the balance between freedom of speech on the one hand and the prevention of hate speech on the other. There could be very different views on where that balance lies. It is on that precise point that the Government has to make up its mind.
To come back to this commission, there cannot be a competition run by the Public Appointments Service designed to create a body which is to second guess the Government on such issues. It just cannot be done no matter who is put on this commission. If it was all judges, that would be bad. If it was all lay people, that would be bad. If it was all lay people of one kind or all lay people of another kind, it would be equally bad because those people would have no mandate from the people of Ireland to make decisions of the kind I have mentioned - value judgments about the kind of Supreme Court we should have and the direction the Constitution should take. They would have no mandate from the people. No statutory formula could confer on them a mandate which is reserved exclusively to the Government.
What we want to do with this amendment to section 7 is to state, clearly and unambiguously on order that nobody can be under any illusion as to what this Act is about later, that "Nothing in this Act shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge." I note that similar wording appears in section 40(3) of the Bill as it currently stands, which relates to the functions of the commission. However, because we are proposing that in certain cases a senior appointments committee should be involved, the provisions of section 40(3) are not sufficient because they refer only to the commission carrying out its functions. This particular amendment is intended to apply to the Act in its entirety. That also applies to amendment No. 110.
What I am asking this House to do is to echo the sentiments of the Minister and to ensure that this Act does not derogate from the constitutional entitlement and duty of the Government to use its own judgment on these matters. Insofar as the judicial appointments commission and the existing Judicial Appointments Advisory Board, JAAB, comes up with suggestions or advice, suggestions or advice are all they are. In the end, responsibility lies with each and every Minister, no matter how reluctant he or she may be, to decide who should be appointed as a judge. I ask the House and the Minister to accept this amendment.
I want to say one thing on that last subject. At this point I have no inkling as to which, if any, of the amendments tabled by myself, Senators Boyhan, Bacik, Norris or anybody else in this House in this debate are likely to receive a favourable view from the Minister. We have had no hint as we have gone through the first five amendments - and thank God we are moving forward-----
I have no idea whatsoever as to where this journey is likely to end. I accept the Minister is in a theoretical minority in this House but, because of the deal done with Sinn Féin, he is not really in that much of a minority. However, I think we are entitled to be informally told if the Minister does not intend to accept any of our amendments, if he intends to accept some or if he is thinking of putting down his own amendments to mirror our suggestions up to a point or completely. That should not necessarily be done from the floor of the House. I am not suggesting that. We are entitled to some picture of the Government's thinking on this matter. At the moment, in trying to be constructive - and I am trying to be constructive - we are, to some extent, in a submarine without a periscope. I have no idea of what is acceptable and what is not, of what it is intended to vote down or of what might be replicated in a Government amendment on Report Stage. I know the Minister will probably say in reply that he wants to listen to the entire debate. That is true and that is fair enough but it would be helpful, at least to some of us who are taking a constructive role in this debate, to have some vague outline from the Minister, whether informal or formal, as to whether we are barking at the moon or whether anything we say is likely to be heard, received and acted on. I would not mind whether that happened inside this House or outside. Since the Minister has already said that nothing in the Act has the effect dealt with in this amendment, I ask him to indicate that he will accept it as a clear honest statement of the truth of the situation and a negation of the idea that this Bill is going to take the appointment of judges out of the hands of politicians, which is a falsehood and unconstitutional.
I do not say it is cronyism that a particular Minister, whom I shall not name, is not in the House and does not come from Laois, when editor of the financial section of the Sunday Independent brought his son-in-law and various election workers onto the team, but it certainly looks like cronyism. I cannot imagine the Government not accepting this amendment because it strengthens the hand of Government. Why would the Government not want its hand strengthened or reinforced? As mentioned by Senator McDowell, this wording is in the legislation, virtually word for word. The amendment states: "Nothing in this Act shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge.". Section 40(3) states: "Nothing in subsection (2) shall be construed as limiting the advice that the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge.". Why would the Government reject an amendment that parrots almost identically language in another section of the Bill? I am interested to hear what the Minister has to say in this regard.
I agree with the Senators who said there appears to be a lack of openness on the Minister's part to engage on the amendments tabled to this Bill. Senators have put a lot of work into these amendments. Senator Bacik, on behalf of the Labour Party, has put in significant work to our amendments, which have been put forward in a constructive manner. There has been an unwillingness on the part of the Minister and his officials to work with us to have these amendments inserted into the legislation to safeguard the independence of the courts. As mentioned by Senator McDowell, we could make speedier progress if we had an indication as to whether there is a willingness on the Minister's part to engage on the remaining amendments or if we are simply barking at the moon. We are wasting time discussing each amendment because the controlling bloc of Sinn Féin and Fine Gael in this House will reject every amendment. The Minister said that he will listen to all Senators and make up his own mind but I am not sure that he is open to suggestions. There is a controlling hand outside of this House in respect of the Bill and a Sinn Féin and Fine Gael Party bloc here that will vote down every amendment. I do not believe that is good for democracy. During the break later, it would be helpful if the Minister could clarify if we are wasting our time debating each amendment and if a Sinn Féin and Fine Gael Senator could indicate if they propose to vote down each amendment.
I am not voting down every amendment. Senator Humphreys would recognise a Fine Gael Party bloc having been party to one.
I was not addressing Senator Ó Donnghaile.
The Senator would know what one looks like.
There is an order here.
I am not voting down every amendment.
I will allow Senator Ó Donnghaile in next.
I have concluded.
Would Senator Ó Donnghaile like to come in at this point?
I call Senator Bacik.
Based on the voting pattern on the amendments we have put this afternoon, it is valid to ask the Minister if he is open to accepting any amendments. Amendment No. 5 in my name, which we debated last night, was a constructive technical amendment seeking to clarify a definition. I had not anticipated there would have been any difficulty with other parties supporting it. I was somewhat surprised to note Sinn Féin voted with the Government to block the amendment. I wonder if there is any purpose to our debate if that bloc - the strange alliance between Sinn Féin and Fine Gael - is to continue.
I would never suggest to Senators that they are wasting their time. We were here for five hours last night. We dealt with five amendments, on two of which there was no debate because they were ruled out of order, which speaks for itself in terms of time wasting. I am here to listen to Senators and to be constructive. I am more than happy to reflect on amendments that I believe to be constructive and it may be the case that later amendments will be accepted during the debate but I am bound by the rules of this House to deal now with amendments Nos. 6 and 110. On the commencement of the debate, the Leas-Chathaoirleach indicated that to ensure an orderly debate we were to deal with the issues to hand.
I refer Senator McDowell to Article 15.4.1 of the Constitution which makes clear that there are no circumstances in which the Oireachtas shall enact any law which in any respect might be repugnant to the Constitution or any provision thereof and Article 15.4.2 any such repugnant legislation enacted shall be invalid to the extent of that repugnancy. Therefore, this Bill when enacted could under no circumstances lawfully change the constitutional prerogative of the Government. There is nothing in this Bill that asserts to in any way change that.
Amendment No. 6 proposes to insert a new section 7 into the Bill, with a general rider that the Act overall cannot limit the advice that the Government may give to the President as regards persons to be appointed. Relevant rider provisions have been inserted into the appropriate places of the Act. Senators Norris and McDowell have rightly adverted to section 40(3) and section 41(4), the wording of which is almost identical to the wording proposed in the amendment by Senator McDowell. The oblique reference that Senator McDowell makes to further amendments probably centres on amendment No. 90. I am happy to reflect on that amendment when we come to it. If it were to be voted upon favourably by this House, there would be validity in amendment No. 6. I will reflect on amendment No. 6 in the context of further amendments and Report Stage. I want to make it clear that the matter intended to be covered by Senator McDowell's amendment is well catered for in so far as the commission is concerned. Were this House to be disposed to the establishment of a senior officials group there would be validity in this amendment and we would have to revert to it.
Senator McDowell has taken the opportunity to deal with matters more specific to the Judiciary, not in the context of this amendment but in the context of the Bill. I would not be surprised if, when Senator McDowell is next in the High Court, an opportunity is taken by a judge or judges to make representations on their behalf.
I would expect nothing different. In fact, I would be very surprised if any member of the Judiciary, or indeed any lawyer, would say to Senator McDowell, "Everything is fine, thank you very much, you are doing a great job". As the Senator well knows, things do not work like that, nor should they. Rather than have individual members of the Judiciary making representations in the ear of Senator McDowell when he is in the courts, I want to point to the Association of Judges of Ireland, a body of some importance, which I have met on a number of occasions and which I intend to engage with on a regular basis covering many of the issues raised by Senator McDowell and more. It is entirely legitimate that a relationship would exist between the Minister of the day and a specifically arranged group or committee, in this case entitled the Association of Judges of Ireland. I am happy to engage. I am also happy to record in the budget for this year increased capital expenditure for the courts and their buildings. Senators may have had the opportunity to visit some of the new courthouses which have opened in recent times. I have had the very pleasant opportunity of seeing the opening of four or five state-of-the-art courthouses across the State by the Chief Justice, and not solely in the capital. That is indicative of a commitment on the part of this Government to ensure that the courts and the Judiciary have available to them sufficient surrounds in which to work, and also that they have the assistance which a modern Judiciary should have in regard to the engagement between the courts and our people. I look forward to continuing that unprecedented level of investment this year in the context of the October budget. Capital expenditure on courts has been in excess of €120 million over the past six years.
Senator McDowell is right that there needs to be much more than just bricks and mortar in terms of court infrastructure. He makes a valid point about ensuring there are appropriate and necessary levels of support. We will come to that more particularly in the Judicial Council Bill, which is before the Seanad and which will deal with the issue of judges and supports, the ongoing need for continuous professional development and the ongoing need to ensure modern technology is available right across our courts, for judges, court-users, victims of crime and everybody who experiences our Courts Service. Yes, I will continue to do that, and I would prefer to do so through channels I would regard as being accepted channels, and perhaps even formal channels, rather than an opportunity for a tap on the shoulder or a word in the ear, should Senators McDowell or Bacik, or anybody in this House, engage in professional activities in the Four Courts or outside of this House.
There has not been a go-slow in respect of the appointment of judges.
The Minister was doing well.
Nor should there be any suggestions that members of the Government or otherwise were exercising a formal veto over the appointment of judges. That will not happen.
We all know there was. It was leaked to the newspapers this year.
Senator Humphreys reads it in the newspaper.
We are just about half way through the year, and we have had the nomination by the Government, and the approval and appointment by the President, of 16 judges. That is not indicative to me of any blockage, stop or halt. It is my intention between now and the end of this term to seek a Government approval for the nomination by the President of further judges, particularly having regard to the word in Senator McDowell's ear in recent times. I intend to do that between now and the end of term in the next couple of weeks. I reject any allegation on the part of anybody that there has been a form of old-boys network or cronyism in the appointment of judges. Our people and our courts have been very well served over the decades in the independence of the Judiciary and the appointments to our courts. That record speaks for itself and does not need to be proved by citing any instances or otherwise. We have been very well served. There is absolutely no evidence to the contrary, and I reject any suggestions that might be made in that regard. I say this without reference to any individual Member of this House. I acknowledge the points that have been raised by Senator McDowell. It is my intention to engage with the Judiciary in a way that is transparent and that ensures that Government is very much aware of the concerns which arise from time to time. These concerns, however, are couched in the constitutional regard for the separation of powers.
I will keep amendment No. 6 grouped with amendment No. 110. We will have a look at how we are going in the context of other amendments, in particular amendment No. 90. If the Seanad is so disposed to adopt some of the later amendments, then that will be an amendment to which we will need to return on Report Stage. I would ask Senator McDowell to consider not pressing the amendments now with the reservation of the right to come back on Report Stage having regard to the later ones.
I truly welcome the remarks made by the Minister. I will do what he asks, and not press the amendment now. As I explained, it is there to enable amendment No. 90 to have effect, and not to leave it high and dry if it was made by itself.
I also welcome very strongly what the Minister has said about his relationship with the Association of Judges of Ireland, and his anticipated relationship with the Judiciary through the judicial council and other organs which will be made. I appreciate that. I hope I did not give the impression that I was sent as a messenger here. I was not. The remarks that I echoed here were actually made to a jury panel which was sent away yesterday because there were no judges to hear the case. They had been summoned and had come from their work to the Four Courts to uphold their duty as citizens to function as judges of fact in certain kinds of cases.
Again, I do not want to be controversial or to waste the House's time any further but I will make this point. We are not eejits in this House. We have seen the foot-stamping going on. We have seen the press briefings stating there will not be further appointments unless there is progress with this Bill. We have read it. The Minister is aware that the Taoiseach got into a slight bit of trouble in New York for being ambiguous about the creation of news by the media. Newspapers have reported a certain Minister's determination not to allow further appointments to be made, and the bad grace around certain appointments which the Minister of Justice and Equality has correctly made. I do not believe those were invented reports. I do believe they represent the actual thought processes of someone who does not understand his function as a Minister. I am not talking about the Minister who is present, needless to say. I am talking about somebody else. All of those press briefings indicated that one Minister was at least posing in public in a way that is utterly wrong and in breach of the duty of the Government.
I remember the late Jim Kemmy saying when he was a Deputy that another Minister was "Mighty Mouse in the constituency and then just a church mouse in the Dáil". It may be that a certain Minister is Mighty Mouse in the media and a church mouse in Cabinet. The impression has been given to the public that there was a go-slow or a policy of non-appointment of vacancies conditioned on the progressing of this legislation. I am very glad that this attitude has been seen off thus far, and I am very glad to hear that the Minister proposes to see it off further. This commission will take a long time to actually get going and there is absolutely no reason for the Judiciary not to be up to full strength with every vacancy appointed punctually in the meantime. It would be very wrong if an individual Minister was able to pose in public, whatever the private reality at Cabinet table, as the person who is preventing or delaying appointments in order to secure the passage of this legislation, or its operation whenever the commission gets around to being established.
The last point I will make is this will be a highly expensive system compared to the Judicial Appointments Advisory Board, JAAB, system, which I concede had its limitations. However, between €500,000 and €1 million, by my estimate, will be spent every year on the operation of this new institution. We should remember that we are allocating those resources to this particular body in circumstances where the remarks I was making earlier about the under-resourcing of the judicial function need to be addressed as well. There has to be give and take in all of these things.
Finally, I welcome the Minister indicating at least an openness to considering the acceptability of amendment No. 90, which would insert a new section 44 in the Bill. Although he is not committing himself to the text or ideas I have proposed, it is welcome to hear that he is at least prepared to listen to this House in its entirety. It is welcome that he is open to the process of being persuaded that a senior judicial appointments committee is better for senior judicial appointments than requiring serving judges to be interviewed in hotels by laypeople as a precondition to them being promoted, say, from the Court of Appeal to the Supreme Court, which frankly is a ridiculous idea.
While we have had a prolonged discussion, we have still gone a relatively short way into this legislation and the amendments. That is why, given what has been said already by a number of speakers, I want to nail this as best I can. It is not really a great secret that Sinn Féin supports the core premise of this Bill. We supported it in advance of its entry into these Houses, we have supported it in the other House and we will be supporting the core premise as it progresses through this House. In the primary instance that is the issue of a lay majority and a lay chair. That should not really come as a shock to anyone. Sinn Féin will not be opposing every amendment, and the Government is well aware of this. I do not know of any other situation where we ask to be told what the Government is opposing and what it is not so that we can make a decision on whether we will go ahead with them.
A huge amount of play-acting has been going on over the last day and a half, and no doubt there will be more in the time ahead of us. There has been a fair bit of show-boating and acrobatics. The Minister who shall remain nameless may actually be proud of some of the attempts at begging media attention to focus on this issue. It has been alleged we are legislating in the dark but this is not the case. The legislation is here in front of us, and every Member has an opportunity to amend it and engage with it politically on its own merit. I will resist the temptation of the low-hanging fruit in the form of the Labour Party accusations of strange alliances and blocs with Fine Gael. There are only four of them in here because of their strange alliances in the past. No deal has been cut in this regard. A deal being cut implies that both parties have had to concede something. Sinn Féin has actually come in here and used its political craft, based on the fact that we do support this Bill. That is called political leverage or political craft, something that perhaps others could have learned from in the past.
Senator Ó Donnghaile is a crafty bugger.
We are where we are. We support the premise of the Bill. I will not be opposing every Labour amendment. There are several Labour amendments which I will be supporting, which I am sure Senator Bacik will be delighted to hear.
I just hope we get the opportunity to get to those amendments before the summer recess.
First, I welcome the Minister's response that he is open to the amendments, and that he will look at that on Report Stage. I also wish to clarify that at no stage did I mean to say the Minister had any part in blocking the appointment of judges. The appointment of judges is to his credit and I want to say that on the record of the House. If we are to believe the reports from Cabinet, he had to fight for those appointments. We need the Courts Service to work well and efficiently and we need those appointments to go ahead. That is to the Minister's credit, so let us move on with the business. It would be helpful if the Minister could indicate at an early stage which amendments he is prepared to look at and concerning which amendments he is prepared to take our views on board on Report Stage. I think that would be helpful.
I cannot resist temptation, unlike Sinn Féin, who seem-----
We can resist everything but temptation.
Senator Ó Donnghaile is quoting my dear Oscar Wilde. I would like to support what Senator Humphreys has said. I congratulate the Minister. I am quite sure it was a pretty tough battle to get the judges' appointments across the table with the Minister for Transport, Tourism and Sport taking such an interest in judicial appointments. I compliment him on having done that. He is a good Minister and it is very important that we have these appointments made. If anything from this House can strengthen the Minister's hand in making further judicial appointments, I think we are all behind him.
I am not going to disclose any of the business of the Cabinet. I abide at all times by the twin doctrines of collective responsibility and Cabinet confidentiality. I would not have regarded it as a tough battle to do a job that I regard as being of fundamental importance in the context of my Ministry.
The Minister is a tough cookie.
I have agreed not to press the amendment in view of the attitude expressed by the Minister. I am withdrawing it and reserving the right to resubmit it on Report Stage.
I move amendment No. 7:
In page 9, between lines 24 and 25, to insert the following:
"Obligation to uphold judicial independence
7. (1) The Public Appointments Service and the Commission and their members—
(a) shall, in performing their functions under and in connection with this Act, uphold judicial independence,
(b) shall not, in connection with the performance of those functions, take advice or directions from any person otherwise than in accordance with this Act,
(c) shall not perform any of those functions with a view to influencing the interpretation of the law or the Constitution by the courts.
(2) Without prejudice to the generality of subsection (1)—
(a) a person shall not apply for appointment as a lay member of the Commission with a view to influencing the interpretation of the law or the Constitution by the courts,
(b) a person who applies for appointment as a lay member of the Commission—
(i) shall not provide in connection with that application any information relating to the person’s political opinions or religious or philosophical beliefs, and
(ii) shall not be asked, and if asked shall not answer, any question relating to—
(I) the person’s political opinions or religious or philosophical beliefs, or
(II) the merits of any change in the interpretation of the law or the Constitution by the courts,
(c) a person who applies for appointment to a judicial office—
(i) shall not provide in connection with that application any information relating to the person’s political opinions or religious or philosophical beliefs, and
(ii) shall not be asked, and if asked shall not answer, any question relating to—
(I) the person’s political opinions or religious or philosophical beliefs, or(II) the merits of any change in the interpretation of the law or the Constitution by the courts.".
I am delighted to have the opportunity to introduce this amendment. It is an important amendment that sets out a core principle for all of us who are interested in the reform of the judicial appointments process and upholding the core democratic principle of judicial independence. I hope the Minister will at least consider accepting it and that other colleagues will consider supporting it.
This amendment would insert into the Bill a new section 7, entitled, "Obligation to uphold judicial independence". It sets out various points that the Public Appointments Service, the commission and members shall uphold. It starts by stating the Public Appointments Service, commission and members shall, "in performing their functions under and in connection with this Act, uphold judicial independence". I will not go through the amendment word for word but Members will see it proceeds to set out how the principle of judicial independence shall be upheld. It states, in particular, that a person shall not apply for appointment as a lay member of the commission with a view to influencing the interpretation of the law or the Constitution by the courts. It also provides that people who apply for appointment as lay member shall not provide information relating to political opinions or religious or philosophical beliefs. The same principle applies to a person who applies for appointment to judicial office. It sets out the means by which we believe the core principle of judicial independence should be upheld. We do not see that anyone could object to this; we see it as an important part of a package of reforms.
In my Second Stage contribution, I referred ongoing litigation in the High Court. Ms Justice Aileen Donnelly has sent a preliminary reference to the European Court of Justice concerning an extradition to Poland, of which the Minister for Justice and Equality will be well aware. The Advocate General's recently published opinion, citing existing EU case law, held that maintaining independence of national courts and tribunals is an essential guarantee of independence and that it is inherent in the task of adjudication. I am grateful to Senator McDowell for providing to us some of the text of that important opinion. The Advocate General went on to say: "It cannot, to my mind, be ruled out that lack of independence of the courts of the issuing Member State may, in principle, constitute a flagrant denial of justice." That is precisely the issue at stake in the Polish extradition case. I refer in particular to the issues associated with the changes - I will not call them reforms - to the judicial system in Poland that have caused such concern among so many people and institutions across the European Union. We are seeking to have this amendment accepted in that vein.
We discussed at length last night what is in the GRECO report. I read to the Minister relevant excerpts from what I have, which purports to be an excerpt of the up-to-date GRECO report. I refer in particular to paragraphs 35 and 36. It is worth repeating, because it is directly relevant to the text of the amendment, that in the as-yet-unpublished report, which we do not yet know for sure has been read by the Minister, GRECO states it has significant concerns about the composition of an appointments commission as proposed in the Bill, as amended on 31 May 2018, which "would place judges in a clear minority position in favour of a strong lay representation (including the chairperson) accountable to parliament." It states this is not in line with European standards, which in situations where final judicial appointments are taken by the Executive calls for an independent authority drawn in substantial part from the Judiciary to be authorised to make recommendations or opinions prior to such appointments. Paragraph 36 states GRECO urges the authorities to reconsider this matter to limit potential risks of improper influence from the executive of political power over the appointment process to the Judiciary or any perception thereof, and to do so in close co-operation with the judicial authorities. This is all prefaced by the statement by GRECO that it takes the view that the Bill, as far as the composition of the appointments commission is concerned, needs to reflect European standards, aiming at securing judicial independence through more substantial judicial representation in respect of the overall composition of the proposed commission. GRECO is framing its comments on reform in terms of the need to uphold judicial independence. We believe, therefore, that one of the best ways to ensure judicial independence guaranteed is to state that overtly and specifically, as we do in the amendment, which seeks to create a new section 7 setting out specifically an obligation to uphold judicial independence. We do not see how there could be any objection to this. We believe it would be important in any process of reform to state this clearly. It would go some way towards dealing with the concerns that GRECO expressed in the aforementioned paragraphs of the as-yet-unpublished report, which I hope we will all see.
It would have speeded the debate up considerably if we had sight of that report in advance of drafting our amendments, or at least in advance of this resumed Committee Stage. That is why my Labour Party colleagues and I, along with Senator David Norris, tabled an amendment to the House on the Order of Business this morning. I am sorry it was not supported. I hope we will see the GRECO report without delay. The Minister said he would bring it before the Cabinet tomorrow, which will be at the earliest opportunity. He might say whether we will have sight of it later tomorrow or before the weekend to facilitate us in our further deliberations on the Bill.
This is a constructive amendment. It seeks to strengthen the declared principles lying behind this Bill. I hope the Minister sees fit to accept it. I hope others, including members of Sinn Féin, who have so far consistently voted in a bloc with Fine Gael on this, will see fit to support it today.
If, with the best will in the world, the Minister is expressing willingness to engage with us and consider amendments we have tabled, as he has just done with Senator Michael McDowell on amendments Nos. 6 and 110, the problem is that, given the tight timeframe we have been told we are working towards, it is difficult to see how any real engagement can take place on any amendments between now and Report Stage. We are told we will sit late tonight and probably late tomorrow night, and we will probably sit all day on Monday. We will probably sit late next Tuesday and Wednesday nights to have Report Stage rammed through the Seanad so the Bill can go back to the Dáil before its final sitting day, which is tomorrow week. That does not give us great comfort, nor does it reassure us that there will be any real engagement on any of the amendments we put forward and which we have tried to craft carefully.
Some of the amendments I have redrafted in conjunction with Labour Party colleagues were not tabled in the Dáil and it is important that they be given due consideration in the Seanad. We are willing to do that but we are concerned about the tight deadline we are working towards, to which many of my colleagues and I have objected, particularly given that we do not have sight of the full information we should have in having this debate. I am trying to be constructive and I will not go on any further. I hope colleagues will see fit to support this important amendment we are putting forward in the spirit of constructive reform of the judicial appointments process.
Subsection (1) of the proposed new section looks satisfactory but I have a worry. I do not know whether what is stipulated in subsection (2) is normal practice. Maybe I can be corrected. The amendment makes it almost illegal to answer questions. Reference is made to not providing in an application "any information relating to the person's political opinions or religious or philosophical beliefs". It is stated the person "shall not be asked, and if asked shall not answer". It sounds extreme to make it illegal to answer a question. I am querying the wording and the implications of putting such wording in legislation.
Maybe it should state, "should not be obliged to answer". It is important in respect of independence.
In speaking in favour of the amendment, it is helpful that the Minister read the report yesterday evening.
He indicated in the Dáil this morning that he had done so. He can see how this amendment is helpful, taking into consideration the GRECO report and how it can balance matters out. We have been fortunate enough to see excerpts of the report. However, not every Member has those excerpts. That is why we have argued strongly that we need to see the full report.
We believe this amendment strengthens the Bill and the independence of the Judiciary. Will the Minister indicate if he will consider taking it on board on Report Stage?
To my shame, it did not occur to me to table amendments in respect of this matter. When I look at it now, I realise that the territory covered by the amendment is hugely important.
The Senator can always table amendments on Report Stage.
I know but I am making the point that it went past me that this is an important amendment which needs to be made to the Bill.
I have not had the opportunity to read the GRECO report. I only heard what Senator Bacik said about it last night. I could not take it all in. I will have to look back at the blacks of the debate to understand what was and was not said last evening. While I am not whingeing, I consider myself to be at a disadvantage because I have not seen the report but am trying to play a constructive role in this debate. The sooner the GRECO report is shown to the public, including myself, the better.
The principle involved is of significant importance. This characterises what the judicial appointments commission will and will not be. I hope Senator Ruane will not take offence because none is intended. Elements of what she spoke about yesterday in terms of diversity and some of the reasons she advanced for it take one view, not only of the Judiciary but also of the judicial appointments commission. I made the point that I can see a case for having a diverse commission and that it should not be all the same point of view. By the same token, however, the commission, regardless of whether it has a lay majority, should not be a mini-version of the Citizens’ Assembly that met at Malahide Castle.
It is based in the hotel, not the castle. The castle would be much nicer.
I stand corrected. It held its meetings at the Grand Hotel in Malahide.
It is not intended that the commission should mould the Judiciary in one way or the other as to outcomes in individual cases or outcomes of philosophy or whatever. This goes back to the point I made earlier, namely, that a person's political opinions can be hugely important when the Cabinet has to decide as to whether to choose me or Senator Norris to be a member of the Supreme Court. It is important that the Cabinet is entitled to make a judgment on those issues. It is equally important that these cannot be delegated to some people outside the Cabinet and they cannot be encouraged to second-guess what the Government should or should not do under its constitutional obligation.
Who do we really envisage will want to be appointed, through the Public Appointments Commission, to the judicial appointments commission? What kind of person do we think will do this? We do not know how much they will be paid. We do not know whether they will be remunerated at all, except for expenses per diem for attending meetings of the commission, committee meetings, interviews and the like. What kind of persons are actually going to put in applications to the Public Appointments Commission for appointment to the commission? Will they be frustrated non-lawyers? Are they going be social radicals or conservative activists? Will they be people who will conceal their fundamental outlooks with a view to hoping to influence who will or will not be appointed to the Judiciary?
Imagine that I was not a lawyer. What would induce me to put my name forward to be one of the lay members - perhaps chairman, perhaps not - of the commission? What would be my motive for so doing? Are there people who just want, out of the goodness of their hearts and patriotism, to assist in a process of this kind without remuneration? Will they be properly remunerated for doing the part-time job of carrying out the functions of this commission?
I urge the Minister to accept the principle behind Senator Bacik's amendment. It would make it clear to each person on the commission, whether it is the practising barrister, the practising solicitor, the judges, the Attorney General, the six laypersons or the Irish Human Rights and Equality Commission representative, that it is not their function to vet the ideas and the ideology of the people coming before it seeking appointment.
When the Irish Human Rights Commission was originally established, there was a group of people who were keen that what they referred to as the Paris Principles should determine who was appointed to it and who was not. On foot of this, the then Attorney General, David Byrne, put in place a process to interview people with a view to their appointments to the Irish Human Rights Commission. Several people put their names forward. I do not want to invade their privacy. However, one of them was a former Minister who is from a minority religion and who had taken a great interest in law reform and human rights. Senator Humphreys will feel that he was a colleague of his at one stage.
We know who it is now.
The individual in question was rejected by the people operating under the Paris Principles chiefly because he had been a politician.
Yes. It was ridiculous.
It was crazy. He was no longer a politician and no longer a danger to anybody politically. He was rejected, however. People who, in my judgment, were far less in a position to give a rounded opinion as members of the commission were selected instead. I do not wish to embarrass another person but it involved somebody who has become since a senior member of the Judiciary and who is a noted constitutional expert. That person too was rejected in favour of so-called human rights activists of whom nobody had ever heard before.
That experience makes me wonder who wants to be appointed to these positions, and what would motivate them. The huge advantage of Senator Bacik's amendment is that it warns them not to come onto this commission, or waste time applying to the Public Appointments Service, PAS, thinking that they will be the ones who give us a liberal or conservative Supreme Court over the next five, ten or 15 years. That is not their function. It is not their function to make judgments on those things or to ask Michael McDowell, if he comes before them as an aspiring appointee to the commission, what his view is on this or that, how he would decide this or that case or, even generally speaking, where he would stand on socioeconomic rights and whether he would be up for expanding them or not. That is not the function of this commission. The great advantage of Senator Bacik's amendment is that it makes it very clear that it is not a ginger group to shift Ireland this way or that way. It is not a body intended to shape Ireland through the opinions, ideologies and outlooks of the individual members of the judicial appointments commission. If this amendment is accepted, it will absolutely copperfasten it and make it crystal clear that if one puts one's name in to PAS, that will not be one's motive, one will not be allowed to achieve that and insofar as that is one's private, secret aim, one will be frustrated in any intended implementation of a private agenda.
The question Senator Ruane asked, that a person shall not be asked about certain subjects and, if asked, shall not answer, is hugely important when one looks at the subjects. If people are asked if they are practising Catholics, members of the masons or members of this, that or the other, or what their sexual orientation is, or how they view or do not view gay rights, and if this is the direct purpose of the interviews, that is a direct trespass on the Government's prerogative in these matters. It effectively creates a mini-Cabinet subcommittee to vet people by reference to their outlooks and ideologies, and that would be entirely wrong.
Even in America, where they have an appallingly politicised approach to supreme court and federal court appointments, in a manner which even the Minister for Transport, Tourism and Sport, Deputy Ross, would be a bit off-put by, one can never be asked at a meeting of the judicial committee of the US Senate about how one would decide particular cases or lines of cases. That is prohibited in America. It is hugely important to lay down here very clearly to any person who wants to be on the judicial appointments commission that he or she may not ask those questions, and anybody to whom those questions are addressed is not obliged at the very least to answer the question. It would be remarkable if it became known that the lay majority on judicial appointments advisory committee were generally disposed to people of a particular political or philosophical outlook, and that we were generally down on people of a different outlook. It would be deeply damaging to the whole process if people in those circumstances felt they were wasting their time putting forward their application to be considered on merit because the commission would ask questions which go to their religious opinions, philosophical beliefs or whatever.
Another point that this amendment would, if accepted, make very clear is that the interview process itself would not venture into that territory at all, and that candidates would know they were under no obligation at all to participate in discussions of this kind with the appointments commission, and that the members of the commission were not entitled to tempt them out onto that ledge of indicating their philosophical views. There is a narrow line of distinction in that a person's temperament is a perfectly reasonable thing to take into account in making appointments. If somebody going forward for appointment is a black-and-white person who does not listen to the other side, that can be found out in an interview process. Temperament is one thing and someone's reputation as regards his or her temperament can be hugely important. If this new commission asks for references, it should probably ask if the person is temperamentally suited to be a judge. There are many brilliant lawyers who are temperamentally unsuited to being a judge. They could be the best solicitors or barristers in their field. They could be top notch, yet they could be repugnant as judges because temperamentally they are not given to listening to both sides of an argument and have huge belief in their own judgment and pre-judgments of most issues. It seems that it would be utterly wrong if the appointments commission were to grill would-be appointees by setting them constitutional law exams, or by having interviews where it was elicited from them whether they were liberal or conservative, and whether it made up its mind based on propositions of that kind.
The last bit which is important is section 7(2)(c). It says to people who apply for judicial office not to start advertising themselves by reference to their religion, their political opinions or their philosophical beliefs, not to signal that if a liberal is wanted, they are the man or woman and not to say that their general attitude would be to support the State on immigration law matters or to say we have gone far too far in allowing asylum seekers and immigrants to use the court system. If somebody was in a position to say that and signal that to the commission or the Government, it would be reprehensible because he or she would be advertising himself or herself to the Government as saying, "I am your man and I will uphold what you want to do." A particularly conservative Minister for Justice and Equality, much more conservative than the Minister, Deputy Flanagan, or me, I might say-----
Is that possible?
I have always been liberal. The idea that people would put themselves forward as the kind of guy who would be on the Government's side when the court cases come to be decided would be very wrong.
I am jealous of Senator Bacik for her industry and prescience in coming forward with this provision. It defines the scope of the judicial appointments commission. It warns off the activists from saying that the role of Government will be usurped and the Judiciary will be shaped philosophically or ideologically in the future. It tells them to do what it says on the can, which is to assess people on their merit for appointment.
Merit does not mean how the commission will decide cases in the future on the basis of a particular set of beliefs. I strongly support Senator Bacik's proposal, which would add hugely to this Bill. From what I hear, it would chime completely with what GRECO is saying about this legislation in its current form. The principles in this amendment should be accepted and put into law in order to ensure that those who apply to be members of the judicial appointments commission, and those who apply to it for recommendation, understand that it is not the function of the commission to usurp the function of Government.
I agree totally with the sentiments expressed in this amendment but I have some questions about it. For example, it is proposed in subsection (1)(a) that members "shall, in performing their functions under and in connection with this Act, uphold judicial independence," but that is taken for granted and it is the way in which things should operate. How does one assess that? How does one find out whether people have acted in this way?
People on the fundamentalist right are as cute as pet foxes. They have learned an awful lot over the past 30 or 40 years and they are not going to come out charging at something. It will not be Senator Mullen or "Hujab Makapele" from Ballygobackwards who will do it; they will smuggle in a stool pigeon with no public record at all.
Someone from Opus Dei.
This situation is mercifully different from that in America where the retirement of Justice Kennedy has created a problem. There is no question but that Trump will stick in somebody with a very conservative background. We should be glad that this situation does not appear here.
The amendment, in subsection (1)(c), proposes that members "shall not perform any of those functions with a view to influencing the interpretation of the law or the Constitution by the courts." Senator McDowell asked what kind of people would put themselves forward. On the lay panel, they will be exactly the kind of people who want to influence the interpretation of law and the Constitution. These are exactly the kind of people we are going to get. I remember a judge stating quite clearly in open court that he was implementing the law of God, which was above the law of the State. I could provide the House with the name of the gentleman concerned but I will not do so, even though he is now securely in the embrace of Abraham's bosom.
If the amendment is accepted, section 7(2)(b) would read:
a person who applies for appointment as a lay member of the Commission—
(i) shall not provide in connection with that application any information relating to the person’s political opinions or religious or philosophical beliefs,
That is fair enough. The next part reads:
(i) shall not be asked, and if asked shall not answer, any question relating to—
(I) the person’s political opinions or religious or philosophical beliefs, or
(II) the merits of any change in the interpretation of the law or the Constitution by the courts,
What I said about the earlier section applies here as well. The people who are intent on corrupting the system will not announce the fact. The background of judges up for appointment as Chief Justice, superior judges or just judges will be known. People will have a very good idea of whether they are right-wing, left-wing or centrist and what their religious beliefs are because some judges are not in the slightest bit backward about announcing these things in court. We may not know what position lay members of the Public Appointment Service take but we will know it for judges and we will know what their views are in matters relating to legislation.
Putting a lay majority on this seems utterly daft. If such people are to have had no connection with the law for the past 15 years, are we to assume they are completely ignorant of the law? They will do their damnedest to influence the interpretation of the law and that is one very good reason there should not be a lay majority on this body.
I welcome Deputy Fiona O'Loughlin and her guests to the Public Gallery.
When I became a Member of this House, I did not imagine that this Bill would be the one to cause me the greatest insult. We have started talking about lay people as if they are a different species.
I do not know who the lay people are who were referred to by Senator McDowell and Senator Norris and who will come in and infiltrate the system by interpreting the law. The judge interprets the law but these Houses amend legislation and the Constitution. What do the Senators think is going to happen on a commission on which lay people sit? They seem to have an image of lay people as something different but they probably have an interest in various aspects of the law in various institutions. They probably work in NGOs in various sectors.
If one wanted a brain operation, one would not let a bus conductor perform it.
Nobody is suggesting a team of eight lay members from the radical left. It will attract people with a genuine interest in contributing to a commission and to the Judiciary of the country. This is about creating diversity and I do not understand why people are afraid of diversity. People are only afraid of things when they feel threatened so I wonder what it is about lay people that threatens the Senators so much. People from all different fields will go for this. Senator McDowell said that a judge got in to allow a human rights activist in but that is extremely unfair. Human rights activists are changing the shape of our environment and they did not get in on the back of the judge who was allowed in. Maybe it was because of the amount of work they actually do and the knowledge they possess.
I have heard the phrase "these people" used a few times in respect of the lay people about whom we are talking. Perhaps the Senators can be honest and say who they think lay people are.
Are they simply people who do not operate in the same circles as the Senators?
There is much that is useful in amendment No. 7 and it offers some constructive proposals to ensure that there is clarity regarding the independence of the process. However, I do not think it is worded as well as it might be. I have concerns about the phrase "and if asked shall not answer", which is quite different from not being obliged to answer. I do not want people to be penalised for answering a question in good faith. The phrase "shall not provide in connection with that application any information relating to the person’s political opinions or religious or philosophical beliefs" is reasonable but it is important to think it through and assess the effect it might have. We would need to ensure that people are not prevented from including things on their CVs, for example. If a layperson is appointed from Irish Human Rights and Equality Commission, will that be construed in a certain way? There is a need for nuancing in this amendment to ensure that it does not gut the CVs of those who may have worked for trade unions or other such organisations. A little bit of thought needs to go into how the amendment may be interpreted.
I accept it in principle. It is constructive, and we need to make sure that an applicant is not obliged to answer rather than "shall not answer". I share some of the concerns my colleague has expressed around stigmatising framing in some of the language that is being used around persons in this process.
On Report Stage we may table a further complementary amendment. The key point is how the commission operates once it is in place. In that regard, as Senator Norris stated, many judges are not at all backwards in coming forward about their political or other views. The commission will have representatives of the solicitors' body and representatives of the barristers, and it may be useful if we have a complementary amendment to make it clear that everybody who is on the commission will operate in a clear way that is not in any way related to a political or other agenda. It is important for all members of the commission to be clear in that regard. I recognise that many of the positions will not be applied for, but they exist by virtue of the role people are in. In terms of the general operation, it is something we could usefully address.
The PAS has clear guidelines. Many of these issues would be dealt with, and could complementarily be dealt with during the PAS processes. In any case, under data protection laws it would be inappropriate to deal with a person's political, religious or indeed trade union affiliation. They are special categories of personal data, and there are strict European rules around the circumstances under which they could be used. That is not to say I am not happy to support this amendment, but it intersects with two existing laws, namely the general data protection regulation, GDPR, and the PAS legislation.
Last night, Senator Dolan made an exceptionally valid point about the issue of lay people selecting judges and having the competency to be advised in that regard. He compared it eloquently with juries. Ordinary citizens are summoned to serve on a jury. They benefit from the legal argument and the case that is put forward by both a defendant and a plaintiff. Colleagues might not agree but there is a lot of merit in what Senator Ruane said. There is no point demonising lay people. Instead, we should put the resources behind them and give them the necessary expertise and advice to do the job, just as we do with juries, as Senator Dolan correctly pointed out last night.
Nobody is demonising lay people. I am a champion of jury trial. I have always thought that judge-only trial in criminal matters would end up being unfair and unjust, because judges become case-hardened and they tend to believe the people in uniform. We need a system whereby people are brought together to act as jurors, and I agree with what Senator Dolan said in respect of that. I have no objection to the permanent status, which is a constitutional status, of lay people at the centre of important decisions as to whether people are guilty or not guilty of serious offences. That is absolutely crystal clear.
We do not allow in this country what goes on in America, where two or three weeks before a jury trial takes place, potential jurors are all interrogated on where they stand on everything from civil and political liberty to the colour of their skin, their attitudes to people and everything else. This is what is wrong with the American jury system. They have developed it to an art form. There are specialist lawyers who come in to try to influence the composition of the jury, and to take the notion of averageness or laity away and try to stack it in their favour one way or the other. Nobody needs to tell me about the merits of jury trial and lay involvement. I have no problem with it whatsoever.
On a matter of correction, I never for one minute chose to lecture the Senator. I merely spoke in a manner which was not as articulate as my colleague, Senator Dolan. I thought it was an unique example of the benefits of lay people's involvement. I am outlining that in the context of the judicial appointments commission. Surely there are parallels there.
I take the point, and I see the parallel. I have no problem with the parallel and I listened carefully to what Senator Dolan said last night. I thought there was a considerable degree of force. As to whether it should be a minority or a majority, that is a different matter. By the way, if it is genuinely a random group of lay people who end up on this, the lawyers will probably be quite influential in shaping their views. However, they will not have the right to impose their views on them. I see that point.
That is fair enough.
I will make another point. There is nothing wrong with me asking this, and the Minister should answer now. Will these people be remunerated, and how? Will this be something they do out of the goodness of their hearts? As I read this commission's institutions, a significant commitment will be required. When we select a jury to determine whether Michael McDowell is guilty of murder, we do not put up an advertisement calling for anybody interested in dealing with this case to turn up tomorrow in the Criminal Courts of Justice. We do it in exactly the opposite way. On a random basis, we bring in people who have no interest and never knew what they were about to do to address the particular factual issues that they have to decide.
This is the point that I want to have teased out. What kind of commitment will people have to make to this institution? If I am one of the five, seven, or whatever number of lay people we arrive at in the end, will I be there once a week, or sometimes for three days in a row? Will I have to set aside a week, or three weeks if I am on an interview committee, to listen to 60 or 80 people going through an interview process? This is something that nobody has bothered to tell us. Because I am close to somebody who is in academia, I know that the commitment involved in promotion boards in academia is significant. One cannot just turn up and spend a half an hour on it. One has to go through the entire process, ask the same questions and be fair to everybody. Who will put their hand up to do this, and who will have the time to do this? Will they be paid for it? If they are not paid for it, we are effectively saying that people whose time is valuable will have to make a significant sacrifice to be there. Will their employers let them off to do this? Will self-employed people get anything for spending a week doing interviews? When I say "self-employed", I am not thinking of barristers. Let us go down the track of looking at other people who are self-employed, people who own garages and so on. Will they be remunerated for what they do in this role? One aspect I find unclear about the package we are being sold is the terms of engagement these people will be asked to sign up to.
Will they have to put aside a month a year to carry out these functions?
When I was Minister for Justice, Equality and Law Reform, a huge number of people sought appointment to the District Court. When a District Court vacancy came up sometimes there were 120 applications from people who had the requisite qualifications. A problem we face is the legislation seems to propose that we could bring in outside contractors and consultants to do a winnowing-out process, which is very dubious. It is the subject of later amendments. Will we say that some agency will look at the 120 applicants and short-list it down to 19? Who will they be? I do not get a clear picture of how it is all intended to operate. In fairness to the Minister, in this context there must be something rather than nothing. It is the political commitment made by the Government in its programme for Government. I accept that is the commitment but I want to see a picture of how it will work. Who will the lay people be? How will they be remunerated? What is the time commitment expected of each of them? Who does the Minister expect will apply to the Public Appointments Service to get these positions? What would motivate them to do it?
I fully accept what Senator Ruane has said. It is wrong to demonise every lay person as a potential subversive or crank or sleeper for Opus Dei or whatever it is. It is wrong to be suspicious of all lay involvement. That point is very true but I am not trying to convey such a suggestion. I am asking how the machine will work. With regard to the appointment of a District Court judge, for example, involving the interviewing of 30 candidates, who will do it? Will it be five, three or two of them? Will they spend weeks doing it? Will they break into parallel structures and do it? When there is a vacancy in the High Court and 60 solicitors and barristers apply for it, who will interview them all? Will the contractor or consultant cut them down to a shortlist of ten and tell us not to worry about the others, that they did not meet some criterion a third outside agency set for deciding who would be reasonably good people to appoint? Will something like seniority be relevant? Could they winnow out people who just qualify for appointment with 11 years' practice because there are people with 20 years' practice? Could they wipe out the junior people on the list? I want to know how it is proposed the system will work.
Having served on the JAAB and as Minister, I am aware of its shortcomings. It was not perfect by any means. It never had interviews and just worked on a round-the-table examination of applications. That is the way it worked. It certainly would never have contemplated having interviews or the Public Appointments Service appointment criteria. It took a run of the JAAB and said, for example, that 12 or 15 people were suitable for appointment as a District Court judge and it recommended them. That is the kind of thing it did. If we are to do something very different and grade people, for example if Senator Conway, Senator Noone and I are the three people applying and they put Senator Noone first, Senator Conway second and me third, it has to be done by reference to criteria. There cannot be three sub-committees and different people interviewing making those kinds of decisions.
I am not trying to be obstructive when I say it really mystifies me as to how the commission is supposed to operate. It mystifies me as to what commitment will be involved. If we cannot say in advance what the commitment is likely to be, we cannot make a fair judgment about what kind of remuneration will have to be offered to the people who participate in the process. We have had silence on that topic thus far. I have not even seen a sketch of these matters laid out in public. We are entitled to hear the Minister's thought process on how he sees it developing so we can decide what the process is likely to be. The commission is supposed to set up its own procedures committee. It can set up sub-committees. It can do all sorts of things but we have no real picture of how this new body is supposed to operate. We know that in all the relevant sub-committees, laypersons will be in a majority according to the legislation. That may be a good thing or a bad thing; that is for another amendment. The point I am making is I would love to know what is expected of these people if they turn up.
Let us remember the situation concerning jurors. A self-employed person cannot afford to be a juror. Jurors get nothing for their efforts. The first thing they do is go up to the judge and ask to be excused because, for example, they run a garage and have one employee. If such a person is put on a jury for three weeks the business will close down so he or she is let off. That is the way the system works. The jury system is biased towards employees whose employers will let them off and towards people who have time on their hands and can say, for example, they will deal with the David Drumm trial even though the judge has warned the trial could go on for 60 to 80 days. A lot of people cannot do that. For an awful lot of people, it would mean financial ruin. A retired person can do it. An unemployed person who is interested and patriotic enough to serve-----
A Trinity lecturer has done it.
A Trinity lecturer perhaps could have done it but I do not know. I am making the point that if there is going to be an 80-day trial - it is a point for another day's debate on another Bill - and if we are going to have balanced juries, will we end up paying or compensating jurors for loss incurred in carrying out their function? At the moment we have a cheap way out where people who would be badly economically affected can effectively excuse themselves from jury service because the judges are reasonable and do not want to ruin anybody financially.
I want a clear picture from the Minister of how he sees this body operating and what commitment he thinks is involved.
The last point I want to make is in response to Senator Higgins's point. Whatever criteria apply to behaviour and impartiality must apply equally to judge members, lawyer members, Irish Human Rights and Equality Commission members and laypersons. It must be the same standard. We cannot say to a Bar Council or Law Society nominee that he or she could be pursuing a Bar Council or Law Society agenda on the commission with regard to a particular matter.
Senator Bacik's amendment concerns the independence from bodies such as the Bar Council and the Law Society. In addition, if Ibec, for example, had a nominee, it should not be allowed to influence the outcome of the proceedings. They are hugely important points. Senator Bacik's amendment is hugely important. At some stage before we create an institution we are entitled to ask ourselves roughly how it will work and roughly what it will require of the people who get involved in it in terms of their time, commitment and remuneration. Then we must ask ourselves what kinds of people are likely to put their hands up and say they want the job.
I will contribute to the debate about lay persons and legal people.
I have to leave and then I will be in the Chair. Some of what I will say will not be strictly relevant to the amendment but I hope the House will indulge me for a few moments.
My understanding is that there are two red-line issues in respect of the Bill. There has to be lay majority and there has to be a lay chair. Others have spoken about stigmatising and denigrating lay people. As a legal person, however, I am of the view that the Bill is somewhat denigrating of the profession of which I am a proud member.
It certainly is.
Perhaps the word "lay" has a negative connotation, but I am absolutely fine with non-legal people being members of the commission. It makes total sense to me. Potentially, I may be a double pariah because the legislation will mean that, in the future, I, as a solicitor and a former politician, will not have the integrity or objectivity to chair the committee. It is not necessarily that I want to chair any commission, but the intention behind the Bill leaves me a little unstuck. If the Bill did a huge service to the Judiciary, the State and the people, I am objective enough to be able to appreciate that potential benefit. Essentially, however, it states that people like Senators Burke, Mullen, Clifford-Lee and McDowell, who has been Attorney General and Minister with responsibility for justice, or the Minister, Deputy Flanagan, would not have the necessary objectivity or integrity or whatever it is that is implied here. Whatever about us saying the chair could be chosen by the commission, or that the chair could be either a non-legal or legal person, I have a difficulty with actively excluding legal people from being chair.
What does that imply about legal people who have trained in law, who have understanding of the law and who have an understanding of the nuances that exist in the Law Library and in general when it comes to the legal area? Does it imply that such knowledge somehow constitutes a major disadvantage? I do not get it. Is it that people will potentially be offering promotions to all of their pals? Give legal people some credit. I am sorry to speak negatively against the Bill put forward by the Minister. If he were in my shoes, however, he might well do the same thing.
That is a very liberal presumption.
Ultimately, I will obey the whip and vote for the Bill, but, in the context of a great deal of it, I will do so with a heavy heart because I feel it is an insult to the profession of which I am a proud member. I am still a practising solicitor and I find the Bill to be an insult to the legal profession. There is a lot of good in it but not in many respects, particularly when it comes to the idea that it must be a non-legal chair. If it could be either that would be fine. There may well be a person who does not have legal qualifications who would be an excellent chair of any such commission but why should an individual who has a legal qualification and legal experience be excluded from chairing any such commission? That is something with which I struggle. I do not know who will come up with an answer on this one. It does not make any sense to me. We have all this talk of lay people and, unfortunately, "lay" is the word used in the legislation. Perhaps some people have chosen for it to be somehow negatively perceived. It is non-legal people. I have absolutely no difficulty with it. I am very disappointed about this aspect of the Bill. I would wish it could be addressed. I do not really have much that is positive to say, so sorry about that.
Three more Senators have indicated and I will then call the Minister. I hope the House will be happy with his comments and that there will be no need for further comment on this.
This has been an extremely interesting debate. Senator Higgins mentioned that areas of this are covered in other legislation. If someone is applying for the job, it would be useful to have everything in one place in order that if people want to go on the commission, they can go to one document that lays out the responsibilities. I am sorry the debate includes negativity against lay people because I very much see myself as a layperson and so probably do many other Senators.
Everybody is a lay person.
I feel very aggrieved. Senator Noone is a practising solicitor, and the Bill means she would have to go through a 15-year decontamination period before she could get involved again. That is entirely wrong. The amendment tabled by the Labour Party Senators is immensely practical. It could do with a little polishing, but it would be a constructive element if the Minister was prepared to accept it and move to Report Stage. It would fill the gap that has been pointed out with regard to the GRECO report and it would give a lot of support and security to the Bill. Anyone applying to go on the commission could clearly see what the role would be. By no means is it perfect, but no legislation has ever been perfect. Whether someone is a judge, a lawyer or an undefined lay person, at least if the amendment is included, it would be very clear what role an individual would be playing because it would be outlined in the legislation.
I welcome the Minister of State, Deputy Stanton. I will begin with the point made by Senator McDowell regarding people acting out of the goodness of their hearts. I will not go against that phrase but I want to take it a bit further. It is from the goodness of their view of engaging in public service, their vocation-----
-----their patriotism - to use a good old-fashioned word - and their understanding of Bunreacht na hÉireann, and to be vocational in that sense, that people will act.
Senator McDowell put a direct question to the Minister and I would like to hear a response to it. I have served on State boards. There was remuneration for members in some instances but not in others. We had people on those boards who, as part of their daily work and remuneration, were members of the sector involved. The person who is not involved is at a direct and real disadvantage. There is a real opportunity cost that goes against the ordinary man or woman with the oil under his or her nails who is doing another job. Senator McDowell has raised a really interesting question about jurors. It is not a matter for today, but it is something that needs serious consideration in our modern State where people now measure time by minutes and not by days. A generation or two ago, there was nothing in a day here or there but that is not the case any more. People's lives are down to hours and quarters of hours, unless they are happily retired or have a lot of free time.
I listened to Senator McDowell speak earlier. I totally agree with his point on somebody who is brilliant lawyer in whatever field. To make a sporting analogy, someone who is a brilliant player could be an absolute disaster as a manager and a lawyer could be an absolute disaster as a judge.
I now want to switch to Senator Noone's concerns.
I am genuinely sorry to hear them because I would not have seen lay people in juxtaposition with the Judiciary. I would have seen-----
I refer to members of the Judiciary in juxtaposition with the lay people on the board. I just see it as two sides of a coin that should ordinarily and easily complement each other. In a sense, a judge's role, not on this commission but in day-to-day work, has some of the elements of being a chairperson and making sure that there is even-handedness, that the rules are obeyed and that everybody gets his position. A judge will also rule on what is admissible and on other matters but there is a certain part of the role that is similar to that of someone who is a chairman. I do not accept that, because somebody is a barrister or solicitor, he therefore makes a good chairperson.
Some of them would be wojous. There is no question about it.
It is useful to have that clarified. I do not understand why, in the spirit of republicanism, the role of Judiciary members cannot complement that of lay people. The question of where the Judiciary members come from is different.
I have been challenged by the Madame Defarge of Trinity to state what I am threatened by and what I mean by a lay person. By lay person, I mean what is stated in the Bill:
"lay person” means a person who—
(a) does not hold, and has never held, judicial office,
(b) is not and never has been the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor or a law officer, and
(c) is not, and in the relevant period specified by subsection (2) for the purposes of this paragraph, was not, a practising barrister or a practising solicitor;
The relevant period is 15 years. That is what I mean. What am I threatened by? I am threatened by their ignorance.
The Archbishop of Dublin.
The Senator wants to bring in the Archbishop of Dublin. To have a lay person, there are either the priests, who are supposed to know something about religion, or the lay people. That is what I am threatened by. I am threatened by the collective ignorance that is being overloaded onto this thing in contradistinction to the experience of people. Experience seems to be a disqualification. For what other job would experience be a disqualification? It is a complete nonsense and a prejudice instilled in this Bill by a person in the Lower House with whose name I shall not sully my lips.
The Senator might as well. We all know it anyway.
The Senator should not involve people in the other House.
I would never do such a thing. The only people who seem to be excluded - I do not know whether it was accidental - are academics. I was an academic. I would not put academics in charge of the henhouse, to be quite honest. In my part of the north inner city of Dublin, I hear people saying, "Ah, Jaysus, he's only a bleedin' academic." It means absolutely unqualified, up in the clouds, theory all over the place and being unable to hammer a nail straight into a lump of wood. That is what I am afraid of. I will give the House a definition of an academic: an academic is someone who suits the description by the wonderful comic writer Tom Sharpe, who said nothing could be so guaranteed to derail an argument as prolonged attention to the inessentials. That is the academic for one in glorious technicolour - prolonged attention to the inessential. Those are the things that worry me.
I wonder what inducements were offered. Was it a few roads here and there in Donegal? Were there legislative concessions? I would like to know. Let us be honest and cut out the ballsology. I would like to know what the price was and what people got. There is a most peculiar concatenation of people on the other side who I never thought would be inhabiting the same kennel so I would love to know what was the price. Was it worth it?
The Senator is straying a little beyond the remit of section 7.
I would love to know. I can see from the expression on my dear friends' faces over there-----
I have to remind the Senator-----
Are they not going to tell us what they got?
I have to remind the Senator to stay, in so far as he can, within the tracks of the Bill and the section. I call Senator Bacik.
I believed I was not to contribute until after the Minister of State, Deputy Stanton.
The Minister of State has replaced the Minister. He wants to get a feel for the debate first so I will let Senator Bacik in now, then Senator Ó Domhnaill. Then we will allow the Minister of State to contribute.
I will just wait for the Minister of State.
I am sure Senator Bacik will refresh the Minister of State's memory regarding the importance and significance of her amendment, proposing a new section 7.
Would the Senator care to repeat the amendment several times, and then in Irish?
I am not in the business of wasting the time of the House. It is unfortunate that the Minister, Deputy Flanagan, was not in a position to respond personally on the very interesting and considered debate we have had on amendment No. 7.
It appears that we will be burning the midnight oil so there might be an opportunity later.
We are adjourning the debate in an hour in order to take Private Members' business.
The Senator must play with the hand dealt to her so we shall proceed.
I welcome the Minister of State. It is unfortunate, given the way in which this Bill has been debated, that the Minister was not in a position to respond personally to the debate. I asked the Minister when we would see the GRECO report. We debated at length last night the context to this Bill and the issues it purports to address. I read into the record of the House certain paragraphs of what I believe to be the GRECO report, which is as yet unpublished and dated 31 May 2018 or a date subsequent thereto. I will not repeat the paragraphs I read; suffice it to say they express significant concerns about the current composition of the appointments commission as proposed in the Bill and state the move is not in line with European standards. The document urges the authorities to reconsider this matter.
It is in light of the critique by GRECO, which we have not yet seen, that I tabled amendment No. 7. The amendment is very much in keeping with the principles behind this Bill and the stated intention of the proposers of the Bill, namely to ensure positive reform of the judicial appointments process. I speak as somebody who has always advocated for positive reform of the judicial appointments process, particularly regarding the need to ensure that we enshrine in law the obligation to uphold judicial independence. That is precisely what this amendment seeks to do. It was in the context of our discussion of this amendment that I asked the Minister earlier when we would have sight of the GRECO report so we could know, when debating the amendments, the response of the Government to that report and precisely what the GRECO criticisms are. All I have are excerpts that I believe are from the GRECO report, but we are all at a severe disadvantage drafting and debating amendments at this late stage, halfway through Committee Stage, without any knowledge of whether the Minister has seen the report and what his response to it will be.
When will the GRECO report will be available to us as legislators in the Seanad? We have been told the debate will continue tomorrow until late. It will obviously go late tonight, and it will probably continue into Monday, Tuesday and Wednesday of next week with a view to ramming it into the Dáil by Thursday of next week. I asked the Minister whether he could really commit to reviewing amendments we have tabled and coming back to us on Report Stage given the very tight timeframe, which is unfortunate.
I listened very carefully to the contributions of colleagues during the debate. The Minister said there had been no go-slow on judicial appointments and that judicial appointments were being made even though the Bill was in the offing. In that context, I question again the urgent desire to get the Bill back to the Dáil by Thursday of next week given that the Minister said there are no judicial appointments to be made that are awaiting the passage of this Bill.
I have been a Member of this House long enough to know that justice Bills are always rushed through in the last few weeks prior to the summer recess. It is unfortunate in the context of new politics and the new procedures we have in place that this approach is still being taken such that we have late night sittings and so on. This is an important but contentious Bill. We are all well aware of the particular Minister for Transport, Tourism and Sport who is driving it through both Houses, which seems to put him at odds with his colleagues in the Government.
I listened carefully to Senator Noone's astute critique of the Bill and I note her comment that she will be voting for it with a heavy heart because she is whipped to do so and also that this Bill is an insult to the legal profession. I am interested in hearing the response of the Minister, Deputy Flanagan, to all of the points made. I am particularly interested in knowing if the Minister of State, Deputy Stanton, is in a position to indicate whether the Minister, Deputy Flanagan, will be able to review the amendment and to tweak it if necessary.
As mentioned by Senator Humphreys, we are happy to see it amended but we believe it is important the Bill includes a specific and overt reference to an obligation to uphold judicial independence and that the work of the Public Appointments Service, the commission and its members should be conducted in the context and the framework of a commitment to the principle of judicial independence. I do not think anyone could have any objection to that, although a few people have raised issues around obligations to answer or not. It is important to provide that if a person is asked a question, he or she is not obliged to answer such that those who are seeking appointment to judicial office or those seeking appointment as lay members of the commission should not be obliged to answer any question relating to personal political opinions or religious or philosophical beliefs. This is an important protective measure, which is in keeping with GRECO's view that there is no perception of improper influence on the appointment process to the Judiciary. This is an important part of the amendment but we are happy to see the wording tweaked if necessary.
I would like answers to the specific questions I have raised and, in particular, on whether the amendment will be considered by the Minister in the brief time available to him between now and Report Stage.
On the issue of lay members and what constitutes a lay person, I listened with great interest, as I always do, to the contribution of my esteemed colleague, Senator Norris, in which he said that for him what constitutes a lay person is black and white. He put great emphasis on the issue of experience. There is a point up to which I do not disagree with him. I would not dare to call into question the bona fides of the current Judiciary and those who have gone before. However, I have with me a report from June 2017 in which a European anti-corruption body - GRECO - found Ireland to be "globally unsatisfactory, particularly in the areas of judicial appointments and independence". I would contest that in terms of what has gone before, all of those with the greatest experience in the world have not come up to the standard expected by GRECO.
Nobody else mentioned any of this.
We put huge import on the views of GRECO. In its report of June 2017 it found Ireland to be "globally unsatisfactory, particularly in the areas of judicial appointments and independence", even though all past members of the Judiciary had the illustrious experience that Senator Norris so craves. Perhaps it is worth considering that the commission comprise a lay majority, which might strengthen our Judiciary such that GRECO will no longer find it to be globally unsatisfactory. A change is as good as a rest.
I am sure there are Members here who would like to contradict what Senator Ó Donnghaile said.
We can trade GRECO reports.
I think Senator Ó Donnghaile will be anxious to respond before I call the Minister of State.
I sense that too.
The most up-to-date GRECO report of May 2018 refers specifically to the current proposals for reform from the Government.
I have not had sight of it.
It is undeniable that GRECO has sought reform.
Where is the reform?
I would be the first to say that we need reform. I have always stood for reform. I did a report some years ago seeking reform of the judicial appointments process, at which time I did a good deal of research on the need for change to the process to ensure, in particular, a better gender balance on the Judiciary. I have no difficulty with reform and will be pressing for it.
The excerpts that purport to be from the May 2018 GRECO report state that GRECO recommends that the current system for selection, recruitment, promotion and transfer of judges be reviewed with a view to targeting appointments at the most qualified and suitable candidates in a transparent manner without improper influence from the Executive or political powers. We all know that GRECO sought reform. The point is that GRECO is critical of this reform. Many of us sought reform but many of us are critical of this reform. It is not a contradiction to say that reform is necessary but we do not agree with all of the provisions of this particular reform and nor do we agree with the process by which this reform is being made. That is the point.
This is where we amend it.
Nobody is scoring any points by pointing out that GRECO sought reform of the current process. We are all aware of that.
On a point of order, we are lucky to have the opinion of Senator Bacik. Under the type of thinking we have in this law, she would be disqualified because she is a barrister. That is the kind of idiocy we are at.
I call the Minister of State, Deputy Stanton, to respond.
The Minister, Deputy Flanagan, will return shortly. He had to leave to take some business in the other House.
Sorry. I beg the Minister of State's pardon.
He may have had biscuits while there.
I understand we are dealing now with amendments Nos. 6 and 110.
My apologies, it is amendments Nos. 7 and 110.
No, we are dealing with amendment No. 7.
Will the Cathaoirleach clarify if amendments Nos. 7 and 110 are grouped and being taken together?
They are grouped but we are dealing only with amendment No. 7.
No. Amendment No. 7 was removed from the group and it is being dealt with on its own.
Will the Cathaoirleach clarify to what amendment I am responding?
Amendment No. 7. Amendment No. 110 has not been moved.
I will clarify the matter. I sought the degrouping of amendment No. 7 from the original grouping of amendments Nos. 6, 7 and 110. It seemed to me that amendment was different, which I think Senator McDowell accepted. Amendments Nos. 6 and 110 are Senator McDowell's amendments and they were dealt with earlier. We are now considering amendment No. 7 on its own because it is a specific amendment.
I think it was agreed earlier by whoever was in the Chair that amendment No. 7 would be dealt with independently of amendments Nos. 6 and 110, even though they were originally grouped.
I wanted to ensure that we would not be precluded from speaking on amendment No. 110 when we get to it.
I would like to deal initially with Senator Noone's points regarding lay members. The stipulation of "lay" is not in any way intended to cast any aspersions on persons in the legal profession. The Bill provides for both to be represented on the commission. The objective is to achieve a balance in the membership of the commission as between those who have excellent expertise, skills and experience in law and those who have excellent experience, skills and expertise in areas other than law.
The chairperson of the commission has to be a lay person. I would not call that balance.
Senator Norris has had ample opportunity to speak. Please allow the Minister of State to continue uninterrupted.
The particular skills and experience required of the lay members are set out in section 12 of the Bill, a section to which many amendments will be discussed during Committee Stage.
On amendment No. 7, this is a substantive amendment and we thank the Senators for it. Subsection (1) of the amendment seeks to insert a new section 7 in Part 2. The thrust of the amendment is to make provision for obligations on the part of the Public Appointments Service and the commission to uphold judicial independence. Subsection (2) provides for restrictions on the motivations of persons seeking to be appointed as lay members of the commission and on information that may be provided or asked of a person applying for judicial office.
The primary concern behind the decision of the Minister in 2013 to engage in public consultations was with a mind to ensuring that the independence of the Judiciary was preserved and strengthened. Ireland's Judiciary is rightly lauded and rates most highly internationally on criteria relating to judicial independence. This is on record, as we know. We are fortunate in having a uniquely independent Judiciary. Other factors were in view regarding the public consultations, including matters related to diversity, eligibility and the adequacy of existing structures in place in respect of judicial appointments. This is carried over into the Bill. In the critically important areas of the Bill dealing with the development of procedures and requirements around judicial appointments, it is recognised explicitly in Part 8 that, in the preparation of statements, the procedures committee shall have regard to the independence required of holders of judicial office as respects the exercise by them of their functions as holders of such office.
Members will be aware that in my view and that of the Minister, the Public Appointments Service is the most appropriate body to carry out the function of selection by lay members of the commission and, indeed, of the lay chair. It is the centralised provider of recruitment, assessment and selection services for the Civil Service and provides analogous services in the wider public service.
The Senator seeks to apply new obligations to the Public Appointments Service itself and the Minister thinks this is excessive and unnecessary. We are fully aware of the excellent standards of service delivered by the PAS to the State. It operates to the highest standards and delivers a most professional service. It is independent in the manner in which it operates and its byword is that all appointments are made on merit. The Minister is completely satisfied that merit will be the only criterion, with reference to the specific qualities indicated in section 12, that will be benchmarked in the selection of lay members. He sees no basis for adding any conditionality to that role, nor would he have any authority to do so, and he believes that it is an unnecessary step.
The canvassing restrictions in section 62 of the Bill provide that any applicant for judicial office who canvasses any person involved in the process for support for an application shall be guilty of an offence. This would apply to any untoward influencing of a decision to be made by the PAS or the commission. The Minister is satisfied that the functions given to the PAS and the commission, the provisions related to the composition of the commission and the relevant provisions of the Bill concerning judicial independence, and the restriction on canvassing and matters relating to confidentiality, fully protect the integrity of the roles assigned and address any concerns that lie behind this amendment.
I thank the Minister of State for standing in for the Minister, Deputy Flanagan. We put some serious questions to the Minister and he has now had an opportunity to consider them. I would like him to deal with them and with what Senator Bacik said.
I thank the Minister of State but he did not answer any of the questions I had posed to the Minister, Deputy Flanagan, and repeated in the presence of the Minister of State. When will we have sight of the GRECO report? Is the Minister willing to consider accepting the amendment or some version of it? We would be happy if it was in some way adjusted but it is important to have an explicit reference to the obligation to uphold judicial independence. I understood from the Minister of State's careful response that the Government is willing to make it implicit but not explicit. This is such an important consideration in any reform of judicial appointments that we believe it should be explicit. It is entirely in keeping with the expressed views of GRECO, both in this and previous reports, that judicial independence should be a cornerstone of a judicial appointments process.
I accept that the Minister of State was not here for the full debate so was not in a position to answer all the queries that were raised. I also accept that the Minister has had a long day so I would not deny him the short break he took.
He had to go to the Dáil.
I accept that. We had a long conversation on the amendment but we have not received a direct response. I would like to hear that he will consider the amendment and look at bringing forward an amended form of it on Report Stage. If that were the case, I would be happy not to press it this evening. It is important that anyone applying for the commission clearly sees the position for which he or she is applying in the document.
I would have thought that, in the few moments in which I attended a debate in the Lower House, Senators would continue in the loquacious manner in which they began at 5 p.m. yesterday. I am surprised that I was missed during the ten minutes I was there. It was even suggested that I might have taken a short break.
It would have been well deserved.
When I left, I was surprised that Senator Norris, a fully paid-up member of the lawyerarchy under Senators McDowell and Bacik-----
I am just a plaintiff, though a very successful one.
It is important that we recognise diversity. This is not a lawyer-only zone, nor should it be. The courts and the Judiciary serve the citizens and all our people so it is essential we embark on a process of modernisation in the area of judicial appointments.
To answer Senator Bacik, I intend to bring a memorandum to Cabinet tomorrow on the matter of the GRECO report and, should I receive the assent of the Government, I intend to ensure the availability of the document, some of which is already available. It is not my document - it is GRECO's document - so I presume I will publish it with the consent of the authors. There is no secrecy or an attempt to short-change Senators in any way. I have read the report in full and prepared a memorandum for Cabinet. By the time this debate is resumed tomorrow, subject to the business committee of the Seanad, I would hope the report will be available to everybody.
It will be no surprise to Members who have been involved in this debate, and were involved in the consultation process over a period, that the former Minister for justice, Alan Shatter, initiated the first round of public consultation in 2013. He asked for submissions from a wide range of stakeholders to assist in the preparation of the reforming legislation. I trust that the appropriate Seanad committee or party caucuses acknowledge the importance of that consultation process.
Nobody was in any doubt that the judicial appointments system, which Senator McDowell knows so well, served its purpose for a decade but was in need of reform. The first line of the 2014 submission from the Judiciary, about which there has been much talk, and for which there has been much support in this House, stated that the present system of judicial appointments was unsatisfactory.
We then moved on to the consultation process and there was engagement in this House on it. In 2016, the programme for Government committed to a new commission with an independent chair and a non-legal majority, and the scheme of a Bill was published at the end of December 2016. There was prelegislative scrutiny in January 2017 and I dare say some Members of this House were involved in that, though I was not. The scheme was modified and the Bill was published on 30 May 2017.
It was passed by the Dáil and is now here. There was engagement with GRECO. I noticed an element of surprise on the part of Senators last night that we had been in touch with GRECO, as though this was some sort of sharp practice or unacceptable aspect to the proceedings.
We were told the Minister had not read the report last night.
GRECO published its fourth report last month. There was a plenary meeting in Strasbourg between 18 and 22 June. My officials were present. GRECO had received correspondence from the Judiciary. Again this is no secret. The judges published that letter consequently.
We said that there has not been appropriate consultation.
They were critical of the Bill, both in their view that there had not been adequate consultation and, of course, their consistent opposition to the composition of the new commission. Why not? I accept that the judges may have wanted to continue with the JAAB process and not favour the type of reform in which we have a duty and obligation to engage. I very much welcome that the judges made their views known. Shortly after my appointment, I made it my business to meet a number of judges, including all the presidents, to discuss aspects of the Bill. We did not find agreement. I did not expect to find agreement with lawyers and judges having regard to the separation of powers, and their interests and priorities being in some way different from mine.
I welcome that the judges engaged with GRECO. GRECO itself welcomed the interaction with the Judiciary. In the draft compliance report, the body expressed significant concerns over the proposed composition of the new commission, in particular that a minority of judges and a strong lay representation is not in line with European standards. I am not sure there is any big surprise there. European standards are not something we have been prioritising in our courts, the administration of justice and the scheme of arrangement for precisely the reasons Senator McDowell outlined earlier. It is because of our common law jurisdiction, because we are different and because we diverge in the manner in which we administer justice.
However, since then I was pleased to propose and get the approval of the Dáil for a number of judges to serve on the commission. It is important that the Chief Justice, the president of the High Court and the president of the Court of Appeal have a role. It is important that we do not leave out the president of the Circuit Court and the president of the District Court in which 95% of court business in the State is transacted on a daily basis. In the Bill, as drafted, it was not considered desirable to have sufficient places for all the court presidents; I believe it is. I ask for the continued support of the Seanad in that regard.
It was made clear to GRECO that Ireland respectfully disagrees with the suggestion in the report that Ireland is doing something that is less than desirable. GRECO has made a number of recommendations over the years. As I said last night, the appointment of judges under our law is based on the constitutional mandate and we will not change that to be in line with any other European state, particularly having regard to a point Senator Bacik raised earlier about one and perhaps other European states and the manner in which they operate by means of their judiciary. I make no apologies for ensuring that we maintain our constitutional mandate. It was never suggested in the context of this Bill that we would go as far as changing that by way of constitutional referendum. Senator McDowell is correct in that regard.
I refer to some of the other points raised regarding, in particular the composition of the commission and what the non-legal people will be doing - what the garage men will be doing, as mentioned by Senator McDowell.
The taxi drivers.
To compare the work, powers, authority and modus operandi of the non-legal members of the commission to those of juries is probably a misapplication or a misunderstanding. It will not be like that at all. It will be more akin to membership of a State board. I am sure there are plenty of Senators who could draw much experience from interaction with State boards. I will come back to that.
Amendment No. 7 seeks to insert the new section 7 as outlined by Senators Humphreys and Bacik, making provision for obligations on the part of the PAS and the commission to uphold judicial independence, in essence providing for restrictions on the motivations of persons seeking to be appointed as lay members and on information that may be provided or asked of a person applying for office. I do not disagree with the principle underpinning the amendment. It is important for us, as legislators, to acknowledge - particularly in the context of change we are now experiencing - that the Irish Judiciary is highly rated. Ireland is regarded highly on the international stage in the matter of our judicial independence and GRECO acknowledges that, as do other international fora dealing with this issue.
We are fortunate in having an independent Judiciary. When we consider many other states, we could go as far as to say that our Judiciary is perhaps uniquely independent in the performance of its work. That will not change under the Bill.
I wish to make a point to Senator Bacik and if the Minister of State, Deputy Stanton, has made it already, I will be brief. The Bill contains reference to the PAS which has the function of selecting the lay members and, in particular, the lay chair. I am not sure what we can do by way of amendment. This is where the Senator's amendment could impinge on the independence of the PAS, which would be problematic. The PAS is independent in the performance of its duty. The body is only a few years in operation. I acknowledge that it continues to deliver a high standard of service to the State. It operates to the highest standards and is independent in how it operates.
I am not sure of the extent to which it would be desirable for us to introduce amendments to this Bill that would have an impact on the independence of the PAS. The fact of the matter - we need to get back to this time and again in the context of what we are saying here - is that all appointments are based on merit. The specific qualities indicated in section 12 will be the only criteria benchmarked in the selection of lay members. I am not sure about the basis for adding any further conditionality to that role. I can tell Senators Humphreys and Bacik that I am not sure I would have the authority to do so, having regard to the independence of the PAS. I reiterate that I do not have an issue with the principle underpinning the amendment. That is why I welcome the debate.
I apologise to Senators for leaving the Chamber for ten minutes, but I had a duty to go to the Dáil to deal with a matter pertaining to the Garda Commissioner-designate. I am sorry for discommoding Senators in that regard.
The canvassing restrictions set out in section 62 clearly provide that any applicant for judicial office who canvasses any person involved in the process for support shall be guilty of an offence. This measure covers any untoward influencing of a decision to be made by the PAS, or by the commission. On balance, I am satisfied that the functions given to the PAS and the commission, when taken with the provisions relating to the composition of the commission and the relevant provisions of the Bill concerning judicial independence, restrictions on canvassing and matters relating to confidentiality, comprise a robust protection of the integrity of the roles assigned. I acknowledge that Senator McDowell has tabled an amendment on the matter of confidentiality, which we will deal with later. I am also satisfied that, on balance, we are addressing the important issues which gave rise to the concern expressed by Senator Bacik and which lie behind this amendment. If I can reflect further on the matter between now and Report Stage in a manner that allays ongoing concerns, I will be happy to do so. I caution against any perceived or actual interference with the independence of the PAS that this Bill might have.
I want to respond briefly to what Senator McDowell said about part-time and full-time positions. I remind him that section 11 provides that each member of the commission shall "act on a part-time basis subject to .... terms and conditions". I expect that the Department of Public Expenditure and Reform will give consent or approval for a stipend or expenses, just as it does in respect of any service on a State board. I do not expect that these positions will be full-time or anything like it. I am reluctant to name names, but it is right to acknowledge the experience and expertise of Deputy Jim O'Callaghan in this regard. During the Committee Stage debate in the Dáil, the Deputy's strong view was that there would not be sufficient work or engagement to make this an attractive position. Senator McDowell, who has a lifelong body of experience and expertise in this area, takes the opposite view. He believes the volume of work will deter people from making applications in the first instance. Deputy O'Callaghan argued that because there are approximately 50 appointments a year, the commission will not have sufficient engagement to make it a worthwhile proposition.
That is one a week.
I think we have something of a balance here. The Department of Public Expenditure and Reform has standard guidelines on allowable levels of remuneration and expenses that will apply here as they do to boards. I anticipate that the level will probably be along the same lines as membership of a State board. I do not accept the comparison between non-legal members of this commission and jurors. I remind the House that we are in the early stages of preparing a new juries (amendment) Bill, which will be based on the recommendations in a Law Reform Commission report that was published a number of years ago. I will be happy to debate that at an appropriate time. I do not expect that these positions will be full time. I expect that serious consideration will be given to the job at hand. I believe diversity is important, as we heard in the contributions made by Senator Dolan and others last night. We should not continue to have a lawyerarchy dealing with these issues. We should invite interested non-legal people with expertise to participate in this process. These people will not be randomers who are picked from the side of the street. I ask Senators to desist from simplistic and unfair comparisons when they are talking about who these people might be. Serious people will be involved in a serious task.
We are not doing something that has not been done in other jurisdictions. I have adverted to the position in our nearest jurisdiction. As part of the modernisation of the appointments process in the UK, non-lawyers and non-legal people have been introduced to that process. As we do the same here, we should not proceed with the type of fear that was evident in Senator Norris's contribution. It is not as if the sky is going to fall in if an expert non-legal person is involved in this process. In light of the many comments uttered by the Senator over the years about the need to improve the administration of justice in the courts system, I am surprised that on the first occasion he is backing the lawyers and looking to keep the closed shop.
I am backing the professionals. It is not a closed shop.
The Senator does not seem-----
The Minister is getting very ratty. He should have a biscuit.
-----willing to countenance any specialisation on the part of people who might not be qualified as lawyers. This will be very good. The non-legal or lay people will working well with the judges. That is why I ask Senators to acknowledge the important amendment we made in the Dáil to provide specifically for the presidents of all the courts to be members of the commission. That is where the lay people will have an opportunity for expert and experienced guidance before decisions are made by a commission with a non-legal majority and a non-legal chair. The non-legal chair will not be some randomer off the street. The non-legal chair will be someone who has gone through a pretty rigorous and robust process. I have confidence in the PAS because it engages in such a process when it makes all its appointments. I urge Senators to have confidence in the PAS because it serves us well in terms of the manner in which it makes appointments.
I thank the Minister for his full response. I understood from what he said that we will see the GRECO report tomorrow after the Cabinet meeting has concluded. I hope that will be the case.
That is my expectation.
That is positive and I am delighted to hear that. I understood that he said he will consider amendment No. 7 for acceptance.
In the spirit of being constructive, I am happy to withdraw the amendment and resubmit it on Report Stage.
I do not accept the terms of the amendment would tie the hands of the Public Appointments Service. I know in the other House my Labour Party colleagues, particularly Deputy Howlin, expressed some concern about the notion that the Public Appointments Service would be sufficiently well equipped to select from among members of the public the members of the commission that should select judges. We must be careful about the assumption that there is some objective notion of merit in this or in any other appointment. There is established literature about merit and what we describe as merit but my idea of merit might be very different from that of another person. We all bring with us invisible bias or what is often called in recruitment literature "affinity bias", where we are inclined to appoint people in our own shadow. That is why I disagreed with members of the Judiciary in the 2014 report described by the Minister, as they sought less political and more judicial input. We must be careful about achieving a balance so it is not just about members of the Judiciary simply appointing more of their own.
I am concerned about assuming that everyone has the same understanding of merit. It has been pretty well established that merit can mean very different things to different people. That is why an amendment like this is important, as it sets out the criteria guiding the Public Appointments Service in appointing both lay members of the commission and persons who apply for appointment to judicial office. It would make certain stipulations and provide certain safeguards to people, which is why we put it forward. It states explicitly what the Minister has already indicated is implicit in his proposals. It seeks to guard against any assumption about an objective measure of merit.
I am thoroughly in favour of section 62 and I very much welcome it, as I mentioned on Second Stage. This is the prohibition on canvassing. The Irish Council for Civil Liberties sought this years ago and it is a really important reform. It is one of the very positive aspects of this Bill referred to by the Minister in his response to amendment No. 7. In the spirit of being constructive, I will not call a vote on amendment No. 7 at this point but it is too important a principle not to come back on Report Stage. If the Minister does not return with an amendment in similar terms on Report Stage, I will press the amendment again at that point.
I ask the Senator to consider the status of the Bill with the Senator's amendment and the impact on the Public Appointments Service. I will do so as well and let us see what we come back with.
I will. I thank the Minister.
Deputy O'Callaghan and I may have different views about what is involved in this. If there are to be 50 appointments made per year and there are to be interviews for those 50 appointments per year, it is not anything like the commitment that would be required of a board member of a semi-State company, who would have monthly meetings. It is something very different. If one District Court appointment is advertised, I can guarantee that unless something has changed in the Irish legal world, there will be 100 applicants for that job. Funnily enough, the higher one goes in the hierarchy, the fewer the number of applicants. That was my experience on the Judicial Appointments Advisory Board, JAAB. If there are 100 or 120 applicants for a District Court judge position, we can think of what is the commitment involved in sorting out who should get the job.
A member of a semi-State board gets board papers and goes to a meeting. The executive suggests X, Y and Z and the annual report must be done, etc. Sometimes there are very important decisions of strategy for the semi-State body. On the other hand, this position will involve constant activity because of a constant drum beat of appointments. Retirements of District Court judges will keep coming up and it will be the same in all the other courts. People will drop dead and there will be new vacancies because of the expansion of this or that court. With the greatest respect to Deputy O'Callaghan, this is not something that could be done in 12 meetings per year or something like that. If one is to participate seriously in the interview process, which is what is involved here, there will be something every week.
I mentioned earlier that I have an insight into recruitment processes from academia and someone close to me. One cannot just give this a half hour. There must be an hour and a half given for each person and the people must be asked the same questions. The process must be quite formal. An interview board is a really serious obligation. I really do not believe we can hand out €12,000, €15,000 or €20,000 and say to anybody worthwhile that they should deliver that amount of time. It will have to be done on a per diem basis. Decent people will not spend four days in a row listening to would-be District Court judges making an application for the kind of nominal remuneration paid to people honoured to be on semi-State bodies. I am not denigrating them at all and I fully admire people who take semi-State appointments. I hate the accusations of cronyism in respect of them too.
The Minister must formulate a clearer picture of the engagement. As I read about the procedures committee, the interviews procedure and all the rest of it, I see a really taxing and difficult job being laid down for the committee.
Incorporated in the Bill is the procedures committee, which will be charged with the responsibility of working out precisely that procedure. We are transforming from the current JAAB to a new type of structure. We will still have the same number of appointments.
I can assure the Minister that JAAB would have dealt with 100 applicants in two hours.
That is precisely why we are introducing this reforming piece of legislation. It is why there is a need for it.
I agree with that.
I hear among the commentariat and Members of this House that this is a vanity project for which there is no need; there is a need for it. Senator McDowell is quite right when he makes the point there is a need for it. I do not foresee that there will be immediate gridlock in the commission when it deals with the appointment of in or about 50 judges per year. Senator McDowell said people will drop dead, and they may well do so, but they will not do so with any greater frequency under the new commission than under the appointments board procedure. We must be realistic.
The birthdays are random days.
There will be an allowance paid for the expertise of people. The procedures committee may, for example, allocate a sub-committee to deal with interviews for the District Court judges. I cannot say for certain, no more than Senator McDowell can, how many people would be interested in those positions. Of any 100 applicants, for example, 20% would be ineligible for a number of reasons and there would be requirements to produce certain certificates and clearance forms that might not be readily available. The interview process will not be such as to result in an impossible level of bureaucratic gridlock that would frustrate the entire appointments system. I do not envisage that at all.
I have the clear impression from Senator Bacik that she is prepared to withdraw amendment No. 7, with the right to resubmit it on Report Stage.