Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

Question again proposed: "That section 22 stand part of the Bill."

I understand Senators McDowell and Bacik have spoken'

We were discussing section 22 when we reported progress last week.

On a point of order, we were having a discussion on section 22 and the Minister was about to reply to some queries which had been put to him.

I thought we were still on section 15.

No. We are on section 22. As Senator McDowell said, the Minister will respond to some queries.

That is the one I voted on wrongly.

That is exactly where we were, in accordance with my recollection, deferring as I do to Senators on all occasions.

There was an impression given in the course of the engagement on the section that this was something completely new and different and without precedent. However, there is nothing unusual about the section. This provision has become a standard insertion in legislation such as this, which is setting up a new body. I mentioned on the previous occasion similar provisions across a number of recent statutes, in particular agencies and State bodies within the remit of my Department. I specifically refer to the Property Services (Regulation) Act 2011 and the Legal Services Regulation Act 2015, while, earlier this year, we had a comprehensive debate on the then Data Protection Bill 2018 before it was enacted. I cite these three Acts from my Department as being statutes with a similar, dare I say identical, provision to that in this section in respect of the accountability of the chairperson to Oireachtas committees. Section 24 of the Property Services (Regulation) Act 2011 provides for the accountability of the chief executive officer to an Oireachtas committee other than the Committee of Public Accounts and the Committee on Members' Interests in respect of the general administration of the Property Services Authority. Mention was made last week with some amusement as to the status of the Committee on Members' Interests. I speak as a former member of that committee, a committee of some importance, although I am sure Senators who are serving on that committee might be in a position to fill me in on its recent activities.

We are not allowed. It is a criminal offence to talk about it.

I am not currently au fait with the status, but certainly on occasions in the past it was a committee of some substance. I assume that is still the case, until I am convinced to the contrary.

Section 19 of the Data Protection Act 2018 provides for the accountability of the Data Protection Commissioner to Oireachtas committees other than the two committees mentioned as regards the general administration of the Data Protection Commission, while section 30 of the Legal Services Regulation Act 2015 again specifically provides for the accountability of the chief executive officer to an Oireachtas committee in respect of the general administration of the authority. In this instance, it is the Joint Committee on Justice and Equality. I readily accept that statutes are somewhat dissimilar. It is often a matter of style of the individual Parliamentary Counsel with ownership of the Bill as to the expression of a particular matter. Across the board we see a number of common aspects of accountability before an Oireachtas committee in respect of the general administration of the body when asked to do so. Accountability is confined to "general administration" of the body, while accountability to the Committee of Public Accounts in respect of accounting matters is dealt with by way of separate provision, as is mentioned in section 21.

Another common thread is the specified exemption from reporting to an Oireachtas committee on judicial matters as set out in section 22(3)(a), together with a mechanism for the High Court to rule on any disputes that may arise between the Oireachtas and the State body as to whether a matter rightly falls within that exclusion. There is a process in that regard which again will be known to Senators. Other exemptions from reporting to Oireachtas committees are any other matters statutorily excluded as appropriate in the case of the Bill. Such matters relate to the confidential information as specified and defined in section 28 on which we did touch on the previous occasion but which we will discuss later and a provision that states a person attending before the committee "shall not question or express an opinion on the merits or objective of any Government policy, as set out in section 22(8) of the Bill". This exercised some Senators, but I remind the House that there is an identical provision in section 24(2) of the Property Services (Regulation) Act 2011 which prohibits the chief executive officer of that authority from expressing an opinion on Government policy when giving evidence to a committee under that section. I acknowledge that these are broad exemptions and that the remit of the section that may be accounted to the Oireachtas committee is somewhat narrow, but section 22 provisions apply only in the context of attendance before a committee other than the Committee of Public Accounts which is dealt with in section 21. The commission in an independent body and I am not sure if it would be appropriate for us to make changes that would in any way impinge on, or restrict, that independence. I am not sure we should dilute some of the specified exemptions or delete them. I do not see a reason for that and I am keen that we would follow precedent in other not dissimilar legislation. Let me assure Senators that this is not new; this is not without precedent.

This is not ground over which the Oireachtas has not gone before and, having regard to maintaining the independence of the new body, I do not wish to make changes which could be perceived to require a greater level of accountability to an Oireachtas committee for matters which would extend beyond the general administration of the commission. Issues were raised on the last occasion we discussed the Bill which are more applicable to sections 27 and 28 and to which we will return.

The Minister referred to not wishing to restrict the independence of the commission but, contained in this section, there is a very severe restriction on the position of the chairperson. He or she is not allowed to express an opinion on the merits of any policy of the Government or a Minister of the Government, or to object to such a policy. The Minister says this is included in other legislation, something I accept. I remember vigorously opposing such legislation at the time as I thought it an unnecessary restriction. It would be of considerable interest to hear the views of the chairperson on matters of Government policy, particularly where they impinge on his or her area of expertise. I am not terribly keen on subsection (8) and, despite the fact the Minister says it is in other legislation, I will oppose it as a matter of principle as I have done it the past.

The Minister briefly mentioned section 28 and he said we would be coming back to it. In the last debate here I recall asking the Minister whether it was his understanding of the legislation that its purpose was to bring about a situation in which the members of the Government, for a time, would be kept in the dark about which of the High Court, Court of Appeal or Supreme Court judges had applied for promotion.

I ask Senator McDowell to clarify a point. What promotion is this for somebody from the Supreme Court?

I do not wish to interfere in any way with the debate, but it might be appropriate to suggest we deal with section 22 first.

We are on section 22.

It will be for the ease of the debate. We will come back to Senator McDowell's very valid points and the queries he raised on the last occasion. I am very keen to address them but perhaps not now.

I flag them as points on which I require answers. To answer Senator Norris's point, if a High Court judge was interested in promotion to the Supreme Court or the Court of Appeal, or a Court of Appeal judge was interested in promotion to the presidency of that court or the Supreme Court or to Chief Justice, or a member of the Supreme Court was interested in promotion to Chief Justice, the Judicial Appointments Advisory Board would not require an application to anybody and the Government may look at that class of judges in addition to applicants for those positions who are not judges.

That explains it.

When we come to section 28, we will have to deal with the question of whether it is the effect of the Bill, as it currently stands, that the people to whom I referred will have to apply to get onto the new body.

I suggest we deal with that issue at that stage.

I am just explaining it to Senator Norris.

I know, but my concern on behalf of Senators is that we will fail to distinguish between the point at issue, which is the question of accountability or otherwise of the chair of the new body to the Oireachtas committee, and the point the Senator is making. I accept the validity of what he is saying, but I am concerned about the structure of the debate.

Section 22(3) provides that the chairperson shall not be required to give an account before a committee for any matter which has been the subject of proceedings before a court or tribunal in the State. Subsection (2) imposes on the chairperson of the commission the obligation to attend before an Oireachtas committee to give account for the general administration of the commission. In that context, I cannot see why the chairperson would not be answerable in a case such as, for example, where there had been a dispute with an employee or an officer which had gone to the Workplace Relations Commission or the courts and a judgment had issued. If it had been found by the court that an employee in such a case had been dealt with very badly, why would the chairperson be able to say that, as it had been dealt with by a court, he or she was not accountable? It is one thing for somebody to win in the Four Courts but a different matter completely for a person, found to be to blame for something, declining to answer questions about it on account of the case having already been dealt with by the High Court. I cannot see why the fact something has been dealt with by a court takes it out of the ambit of the phrase "general administration of the Commission".

Section 22(3)(b) gives another reason for the chairperson to refuse to come before, or give an account to, a committee, that is, "where the giving of such account would involve disclosure of proceedings, communications or matters contrary to section 28." However, I will keep my powder dry on section 28 and the issue of disclosure until we discuss that section.

The Minister should be aware that section 22(4) of the Bill, as drafted, provides, "Where the chairperson is of the opinion that a matter in respect of which he or she is requested to give an account before a Committee is a matter to which subsection (3) (a) applies, he or she shall inform the Committee of that opinion". That triggers the potential circumstances which apply for a court application under subsections (5), (6) and (7) proceeding before the High Court. It is strange that it only applies to subsection (3)(a) but not to subsection (3)(b). If the basis of the chairperson not accounting to a committee is that the giving of such an account would involve disclosure of proceedings, communications or matters contrary to section 28, there is no recourse to the High Court because the second line of subsection (4) confines it to the earlier ground of refusal, which is that it is, has been or may be at a future time be the subject of a proceeding before a court. I find it difficult to understand why the procedures from subsections (4) to (7) should apply only to disputes as to whether something was, is or may be about to come before a court or a tribunal, and not whether it would involve disclosure of proceedings, communications or matters contrary to section 28.

If the High Court deals with the matters under subsections (5) to (7), inclusive, it will presumably deal with them in public. There will be a public debate in the High Court about whether the chairman was right to refuse to discuss it on the basis that it may come before a court. That seems to be a very strange provision. Can the Minister imagine an application to the High Court by an Oireachtas committee for the chairperson to discuss something which he or she does not want to discuss on the basis that it has been, or may be, before the courts?

We want the High Court to adjudicate in public on whether it may come before a court. It is a very strange procedure and I really wonder what useful purpose all of this very convoluted procedure serves. I know that there are probably members of the Law Library sticking proverbial daggers in my back on the basis that this is a potentially lucrative form of new jurisdiction for the courts, to argue about what might come before them and what should not be discussed because it might come before them.

It seems to me that this is a very elaborate set of rules to determine whether the chairperson is right to say the matter has been, may be at present or may in future come before a court, as a reason for not answering a question and then to say the whole thing should be shifted to the High Court to decide whether he or she is right to say that it may come before a court and refuse to be accountable on that basis. I cannot understand, if a refusal to give an account involves his or her invocation or view on the confidentiality provisions in section 28, which is much more likely to arise in reality, why that would not be the subject matter of some recourse to the High Court if he or she gave a blanket refusal on that ground. Why allow for an elaborate procedure to go to the High Court on the ground set out in subsection (3)(a) and exclude explicitly a refusal under subsection (3)(b)? It simply does not make sense. I am extremely dubious as to whether any value at all would really be served if the High Court is to be invested with jurisdiction to adjudicate between committees and the chairperson of the commission on the sole issue of whether something is, was or might in the future come before a court. That is very difficult to understand and I would like an explanation as to why that is in the Bill.

Far be it from me to provide any assistance whatever for the Minister, but it might be possible for the High Court to make a judgment on a matter as a matter of principle without disclosing the details in public. I am not sure if that is possible, but I imagine that it would be, which is one possible route out of the problem. However, my concern is also with subsection (3) which holds that "The chairperson shall not be required to give account before a Committee - (a) for any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State...".

That is madness. It is stark, raving legal lunacy. I can understand it in the context of a matter that is before a court, which is covered by the sub judice rule. If it has already been before a court and a judgment has been registered, then that is the end of the matter. I do not see why on earth that should preclude the chairperson from giving an account. Then there is the absurd reference to a matter that "may at a future time be the subject of proceedings before a court". How, in God's name, would one know? That is the answer to everything. The chairperson would just have to say that a matter might come before a court at some stage. He or she is not be required to give any substantial evidence that this is likely, that it is in the woodwork somewhere or that anyone has shown the slightest inclination in that regard. It is absolutely absurd. That is the end of the chairperson ever giving an account before a committee. He or she need never give one because all he or she has to say is that it might come before the court at some stage. That is the answer to everything. It is a complete and utter nonsense and I cannot understand it. Like Senator McDowell, I oppose the entire section but this subsection is a particular lunacy. As I said, I can understand the sub judice rule. When something is the subject of court proceedings or is being examined by a tribunal, then of course it should be excluded but it should not be excluded if it has already been decided on. That is bad enough but to insert a provision that allows for an absurd, hypothetical projection that a matter might at some stage become part of court proceedings renders the whole thing completely and utterly ineffective. In a way, Senator McDowell and I should be supporting this because it actually negates the entire section. It actually means that the chairperson can, on a whim, declare that he or she could not possibly discuss a matter because in the year 2043 it might become the subject of court proceedings.

The Statute of Limitations might apply then.

Indeed, but even so, I am sure the Minister will acknowledge in his usual good humoured way that this is a nonsense.

I most certainly will not accept that any aspect of this Bill is a nonsense. In fact, Senator Norris said in his opening comments that his fundamental disagreement with sections such as this was well known because he had opposed such measures in the past in similar legislation.

Of course, he will have had an opportunity since of seeing the manner in which these issues are discussed at Dáil committees, without rendering a chairperson of a committee or any of its members unable to proceed on certain matters. I merely make the point, as I said, that there is nothing new-----

I must correct the Minister. What I said I objected to was the discussion of any policy by the chairperson. That is the point I was making. I apologise for interrupting, but I just wanted to make that point of clarification.

I welcome the Senator's comment, but on the last occasion he described a similar type of provision as a "nonsense", which I assume he did, it did not transpire to be thus in the manner in which the various bodies have since engaged with appropriate or relevant Dáil committees, including joint committees. The sky did not fall in. I must come back to what I describe as the standard nature of this provision. I do not want to restrict accountability for matters that are properly before a committee. I want to ensure matters run smoothly, that there is accountability and that there is a process through which the general administration of this body can be dealt with by the chairperson from time to time. I do not want to see accountability restricted and do not agree with Senator Norris that a great restriction or nonsense is implicit in the section. It works well in other legislation.

Senator McDowell is right that there is no linking of the High Court procedure under section 22 with subsection (3)(b) because it is not necessary. Access or resort to the High Court is a fairly common dispute resolution mechanism that we provide for in law and it is appropriate that this is the case. The difference in subsection (3)(b) is the fact that the disclosure is prohibited explicitly under sections 27 and 28. Matters that will be covered by subsection (3)(a) in terms of resort to the High Court would, in certain circumstances, be more subjective and may require to be determined in the High Court and will be the subject matter of argument whereas the disclosure of confidential information under sections 27 and 28 is catered for in those sections.

The proposal that "Any person who knowingly discloses or makes public in any manner any information that is secret within the meaning of subsection (1) shall be guilty of an offence" is far more black and white. Given the subjective nature of an argument or a point at issue under the earlier subsections, the question of resort to the High Court should be treated somewhat differently. That is the basis of it. Past experience points to a pretty infrequent use of this provision in any event. It happens infrequently that tensions between Oireachtas committees and agencies have to be decided on by means of application to the court. Nevertheless, it is important for this mechanism to be built into the legislation. That is merely what we are doing - no more and no less.

I remind the Minister that what I have described as "a nonsense" is not any of the subjects to which he has been referring. I have described as a nonsense the provision in section 22(3)(a) that "the chairperson shall not be required to give account" for any matter that "may at a future time be the subject of proceedings before a court". That is a question the Minister has signally failed to address. I wonder whether the Minister could comment on that specific question, which seems to provide complete carte blanche. I would be grateful if he would do so. I have described as "a nonsense" the reference to matters that "may at a future time be the subject of proceedings before a court". I am not talking about anything other than this particular point. I would be grateful if the Minister would comment on that issue.

I am confident that the section in question will not amount to an obstruction or barrier to accountability. If we look at past experience, in practice, no restrictions were placed on accountability to Oireachtas committees by dint of something that might well be sub judice in the context of current court proceedings or is likely to give rise to a court dispute at an early future date. I do not accept that section 22(3)(a) will be used by chief executives, chairs or the chair of the commission in the way the Senator is suggesting. There is no substance to the suggestion the commission will be allowed to evade its discourse with the appropriate Oireachtas committee in this manner.

The Minister has not answered my question. He has said there is "infrequent" recourse to the High Court. That is not what we are dealing with. It could be completely infrequent, but it will still be in the legislation. We are dealing with the wording of the legislation before the House. The Minister said that this is not a restriction, but I contend that it is very much a restriction. He has suggested this provision will relate to matters that are "likely" to come before the courts "at an early future date". That is not what the Bill states. There is nothing in the Bill about it being "likely" to come before the courts "at an early future date". The phrase used in the Bill is "may at a future time". The time is unspecified. The Bill does not include the words "early" or "likely". I am worried about the use of the phrase "may at a future time" and it should worry the Minister too.

The Senator should not be worried. He cannot draw on any past experience in which this worry has materialised.

I do not have to draw on any past experience. We are dealing with the wording of the Bill. I have pointed out the inadequacy and wrong-headedness of the wording of the Bill. It does not matter if it has never been invoked; the possibility lies in the legislation that it could be invoked. That is what I am objecting to. It is my duty as a parliamentarian to object to sloppy wording - to something that is, as I have characterised it "a nonsense". The Minister has not addressed the point that this could be used carte blanche. I am not saying it has ever been used in such a way. Perhaps it has never been used in that way or will never be used in that way in the future. The possibility resides in the wording of the legislation that it could be used in such a way.

This is not without precedent. This is a standard section that has been used in similar legislation in which agencies have been established. I am satisfied as to its appropriateness. The Senator has a long history of objecting to such sections. I acknowledge his right to do so.

Perhaps we can forget for one moment Senator Norris's concern about what may or may not happen in the courts in the future. Instead, I would like to refer to something that has happened in the courts in the past. Perhaps we might consider circumstances in which an Oireachtas committee is concerned that an officer of the commission has been wrongfully dismissed, bullied or wrongfully removed from office, and the High Court has so held. I suggest that in such circumstances, any interpretation of section 22(3)(a) would give the chairperson immunity from being asked questions about how the person in question came to be bullied out of his or her job, or improperly dismissed or removed, on the basis that the matter has been before the courts.

I cannot understand how the fact that something has been before the courts could mean it would be contrary to public policy, or wrong in any way, for an Oireachtas committee to be allowed to ask the chairperson of the commission, as the official responsible and accountable for the general administration of the commission, to explain how it happened that money was spent and somebody was bullied out of his or her job or wrongly dismissed, how High Court litigation arose from those events, how that litigation was lost and what the chairperson proposes to do about it. Such a chairperson will be able to say he or she is not obliged under the statute to say anything to the Oireachtas committee about the maladministration that happened on his or her watch and during his or her tenure as chairperson, and the associated decisions for which he or she was responsible. That person will be able to avoid answering questions about something that was part of the general administration of the commission on the basis that the matter has been dealt with by the court. It is not right that section 22(3)(a) will mean that the chairperson's personal accountability and responsibility for these matters will be off limits and that nobody will be able to ask anything further about it. This will not be confined to cases in which a substantive court decision has been made. If an officer who brings a case for unfair dismissal, bullying, harassment or whatever goes on in so many of these cases nowadays is paid off with substantial damages, that matter will be deemed to have been before the courts and to have been settled. Nobody will be able to find out about such a case because no evidence will have been given. If the chairperson of the commission comes before the Oireachtas committee, he or she will be able to refuse to answer questions about that case on the basis that it was before the courts at one stage and was settled confidentially. The chairperson would have no responsibility to give answers to the Oireachtas about what happened.

There would be no accountability.

There would be no accountability whatsoever. I cannot understand why such a provision should be allowed to stand. I would like to come back to another point later in this debate. In the circumstances I have outlined, why should the fact that the matter has been the subject of court proceedings be of such relevance? It would not need to have been the subject of an open trial. It would suffice for a summons to have been issued, for a statement of claim to have been delivered and for the matter to have been settled and money to have been paid. The commission might have backed down, admitted that it got it completely wrong, decided to reinstate the officer and issued an apology to the officer.

It would be public money.

Exactly. This section allows the chairperson to refuse to answer questions about such a case on the basis that the statute expressly prohibits him or her from doing so, or from being required to provide answers in any shape or form. The High Court would have to accept that as the literal meaning of this section.

There are three scenarios. The first is one where a matter has been decided by the courts and resolved and that resolution has been established.

The court will have established it. The second scenario is where a matter is before the courts. I ask Senators to accept the fact that where matters are before the courts they are sub judice. Senators might not like that on all occasions, but I believe it is desirable. The third scenario is the one which Senator Norris uses as a blanket restriction on accountability for issues that may at some future date come before the courts. To that I merely say these are issues that will be well known and reiterate the fact that this is a standard provision which in the past does not appear to have resulted in any adverse consequences for debate. Correspondence may well have been exchanged and the issue may well have been the subject of some commentary in the media. I do not believe any chair or CEO is going to use this section in an arbitrary way in order to restrict obligations on accountability.

It does not state anywhere that the media will have been involved.

That is the Minister's speculation.

It does not state anything about the Workplace Relations Commission either.

I do not think there will be a meeting of minds on this issue. Can I put the question?

No, you cannot.

With the greatest respect, the point I have made has been completely ignored.

Let me reiterate it. Let us imagine a number of officers of the commission bringing proceedings in the High Court arising from the manner in which they are treated by the commission. They are seeking reinstatement, removal, compensation, damages or whatever else. Those proceedings are commenced and settled.

Moreover, public money may be spent.

That is a matter which has been the subject of proceedings before a court in the State. The chairperson of the commission is then asked by the Members of the Oireachtas to account for the circumstances in which he or she and the commission over which they preside have incurred liability, legal costs and all the rest of it on behalf of the State. He or she is asked to account for the behaviour that gave rise to this complaint and the fact that, for instance, the commission lost the case hands-down and was criticised by a judge. The chairperson is asked to be accountable for this to an Oireachtas committee. He or she will not answer any question on that subject. It is almost a case of Roma locuta est, causa finita est - the courts have dealt with the matter and there is nothing further to be said. That is not accountability in any shape or form. A case is settled, a confidentiality clause is imposed and that is the end of it. I know of Members of this House who have been the subject of settlements with confidentiality clauses. That does not mean-----

It does not mean-----

It was a profitable one.

Very profitable.

I assume it was merely compensatory and not profitable.

It does not matter. The money is in the bank.

That is a question of language.

The issue is that the matter has been before a court and that rules it out of all accountability. I do not know whether this is a standard form. I do not know whether the draftsman has used this before or how often it has been used before. However, we are dealing with it now.

I do not know whether it has been debated before in either of these Houses, but here we are confronted with a specific proposal to make it off-limits for any Oireachtas committee to ask the person chiefly accountable for the general administration of a body to be accountable in respect of any matter which has led to the institution of court proceedings which have been settled. I cannot for the life of me see what useful purpose is served by such a provision. The chairperson might well come in and say Mr. Bloggs sued the body but the matter was settled, and the chairperson may not want to disclose the terms of the settlement. That might be the appropriate end of it, but it might not be. If a large sum of money had been spent on defending an indefensible or losing action-----

A large amount of compensation may have been paid.

-----or a large amount of compensation was awarded or somebody who had been suspended for a period of time was reinstated and there had been High Court proceedings concerning all of that, the person in charge of the general administration of that office may not only say he or she cannot be asked to give an account, he or she may refuse point blank to do so. That person could be brought to the High Court and the court would apply that section so as to excuse all accountability. I do not understand how that is a healthy provision, whether it has been applied to any other body in any other statute, and whether any House or committee of the Oireachtas has considered in detail whether it is an appropriate exclusion from accountability.

That is why the Senator wants to oppose the section. Unless the Minister has something to add-----

I want to say again that I do not envisage a situation where individual court cases will be the subject matter of a Dáil committee engagement, whether past or future, nor indeed do Senators. That is not the type of discourse that is envisaged when a chairman or CEO, in this case a chair, reports and is accountable to an appropriate Dáil committee. It is not envisaged that the subject matter of debate in that committee should be an individual court case involving a member or employee of the commission. I do not see that as the task of an Oireachtas committee. Rather, it is the task of general administration. Of course changes in the general administration which are the consequence of a high profile court action can be discussed as part of the general administration but not individual court cases. I am sure Senators will agree that if there is a dispute over the admissibility or otherwise of evidence, the place to deal with it is the courts as a normal recourse.

The Minister is right insofar as he says the proper place to decide these issues is in court. However, as Senator McDowell has pointed out that could include the award of very considerable amounts in compensation. That is public money. Of course, there should be accountability to a committee for the expenditure of public money. That is obvious. If very significant amounts of State money are paid out to somebody in compensation then a committee of the Oireachtas should surely have the right to investigate, to establish the circumstances and in particular to establish the fitness of the chairperson to retain his or her position as chairperson of that body. If there has been malfeasance on the part of the chairperson leading to a substantial award of damages, surely to goodness that raises questions about his or her suitability to be chairperson. It is appropriate for a committee to examine this issue.

The Minister says this is not envisaged in the Bill. It is there in black and white. We are discussing it. The fact that these measures may have passed before a previous Oireachtas does not rule out their scrutiny now. If a mistake has been made in the past, it is part of our responsibility to correct that mistake. We would be negligent in our duty if we did not do so.

With respect, this is my concluding comment on this issue. Senator Norris has put his finger on a very alarming button by talking about the capacity of an Oireachtas committee to examine and, as he says, "investigate" a court case.

I do not see circumstances where that would be desirable or where an Oireachtas committee should second-guess the courts. Senator Norris expressly referred to an Oireachtas committee's ability to investigate or second-guess an issue before the courts.

I never said that. The Minister should be careful about putting words in my mouth. The point I made was perfectly succinct and clear, and I am sure the Minister, as a fine lawyer, appreciates that fact, although he is doing his best to dodge it. I am not talking about second-guessing a court. The court has ruled. Compensation has been given and taxpayers' money has been expended because of malfeasance on the part of the chairperson of that committee. Surely to God it is right that there should be accountability. Surely it is possible to question the fitness for the position of the chairperson. That seems obvious. There should be accountability. I am not talking about second-guessing the judgment of a court; I am accepting the judgment of a court. I am saying a judgment was made, the chairperson was found to be at fault, and a substantial amount of taxpayers' money was paid out in compensation. Surely to goodness this raises questions about the fitness of the chairperson to continue in the position. That is the point I was making and the Minister should be careful before putting words in my mouth because I will quickly spit them out.

It is not desirable that an Oireachtas committee should hire and fire chairpersons, which is expressly the Senator's point.

The Minister is right about that.

I agree with the Minister that an Oireachtas committee cannot hire or fire the chairperson, but it can ask an officeholder to be accountable in order that the Government, which has the function of removing people for stated reasons, can decide whether it is appropriate to do so.

Public accountability to a committee is not the same as being hired or fired by that committee.

Senator Norris is slipping into the Minister's verbal trap somewhere. I return to the point that this is not a matter of reopening that on which a court has adjudicated.

I made that point.

There will be no winners.

There can be situations where there have been proceedings before a court, the court has never heard the evidence on either side, it has made no decision, and the proceedings have been terminated on the basis of a private settlement, as happens in 90% to 95% of cases. They are not be heard, adjudicated on or whatever. Let us be clear. We are dealing with a proposed provision in a Bill which will say that if a case is the subject matter of proceedings, whether the proceedings went to trial, whether a court ever heard the evidence in the case, whether there was a confidential or non-confidential settlement, or whether payment was made or reinstatement was agreed, all of that is put outside the boundaries of what an Oireachtas committee can ask the chairperson to do. That is what that subsection says in plain black and white and it is unambiguous. It is not as if there are two views of it. It is clear that if the case has merely been the subject of court proceedings, that is, not a court adjudication or determination, the chairperson may not be required to give an account under the rubric of general administration of the office, which is a serious matter.

This duty to appear before an Oireachtas committee is confined to the chairperson. What happens if the chairperson has resigned or is not in office? Under my reading of the legislation, the Minister is then obliged to appoint a lay person to be chairperson of the commission, and that must go through the public appointments procedure. As I see it, there is no provision for a vice chairperson or somebody else to act as chairperson in the absence of the chair. Section 15(3) states:

At a meeting of the Commission—

(a) the chairperson shall, if present, be the chairperson of the meeting, or

(b) if and so long as the chairperson is not present or if that office is vacant, the other members of the Commission, as the case may be, who are present shall choose another one of its lay members to be chairperson of the meeting.

The chairperson of the commission, however, is different. The commission cannot appoint somebody to be chairperson of the commission pending the appointment of a successor. If the office stands vacant, it appears that section 22 - the accountability provision - goes into suspension as the only person who is competent to be brought before an Oireachtas committee is the chairperson of the commission. It is not somebody who is casually put in as chairperson for a particular meeting.

Section 14(1) states, "The Minister shall not make an appointment under this section unless a resolution approving the appointment has been passed by each House of the Oireachtas". When one examines section 12(2), one realises that what happens is "The Public Appointments Service shall recommend a lay person for appointment by the Minister as chairperson following a selection process held by the Service for that purpose". If the position of chairperson lies vacant, the Minister cannot appoint somebody else to act as a stand-in and he or she cannot say that person will be the acting chairperson for the purposes of section 22 until the Public Appointments Service has conducted a recruitment campaign, made a recommendation and the matters have come before the Oireachtas for approval. Until then, the Minister cannot anoint anybody to be the person who is to be accountable under section 22, which I believe is a serious lacuna. If, for whatever reason, the chairperson resigns, falls under a bus, is removed or whatever ele, there is no accountability for somebody who possibly was not even there when any of the things the committee might want to ask him or her about happened, such as how, in the name of God, did the commission do all of this? He or she will say it all happened before he or she was recently appointed to the position. It appears that there is a serious lacuna in how the matter is drafted. There was careful scrutiny of many portions of this Bill in the Lower House and committee, but it appears there must be provision for somebody to be appointed by the Minister to be chairperson until that vacancy is filled - from the lay members if that is what the Minister insists on, which he knows I am against. There must at least be some provision of that kind or else accountability is frozen while the chairperson is absent or the job is vacant and section 22 ceases to operate.

The only circumstances in which section 22 can apply is if somebody else is appointed following a meeting of the commission, a nomination by the Minister - presumably with the say-so of the Government - and the holding of a debate in the Oireachtas on whether the person is suitable. Is that person then to come in and account for the general administration of the body during a period when he or she was not even a member? That would be very strange.

Let us imagine the hypothetical situation in which a member of the commission has taken a High Court action and, as a result, considerable compensation has been paid. As a consequence of the ensuing scandal or whatever else, the chair resigns. There would be no accountability whatsoever. Substantial amounts of public money may have been spent in compensation but the public will not be given an explanation. That is wrong. To adopt Senator McDowell's phrase, accountability is frozen. That is wrong. I believe in openness and accountability. When considerable sums of public money are spent, there should be accountability. That accountability should not just be to a commission, it should also be to the public. The public should know. There should not be confidentiality where somebody behaves wrongly or badly. We are discussing circumstances where considerable amounts of public money might be spent in compensation and where the person involved resigns, and that is the end of the matter. The public would not be given any information whatsoever. That is wrong.

Does the Minister wish to come in?

There is not going to be a meeting of minds on this issue I am afraid.

I make these brief comments in the context of my being accused, by some Government colleagues, of engaging in a filibuster-----

I do not think the Minister is doing that.

I am conscious of this-----

I am afraid that, because there is not a meeting of minds, that whatever the Minister says will give the matter further oxygen.

Does the Leas-Chathaoirleach have something against oxygen?

I do not. We all need it.

Surely it is essential.

I am conscious that we have spent 70 minutes on this issue-----

If we want to spend 70 more minutes, we are entitled to do so.

There will be a Report Stage, of course.

Indeed there will.

I want to make two brief points. First, I will bring my colleagues back to the circumstances of section 22. Its purpose is not to examine expenditure nor to investigate the spending of public moneys. Those matters are provided for in section 21 and by the Committee of Public Accounts. That is appropriate, having regard to normal practice. It is also not the purpose of section 22 to comment on or investigate the fitness for office of the chair for the time being. Section 22 is on the general administration of the body and that is appropriate in the circumstances. I will address the point raised by Senator McDowell on the matter of the demise of the chairperson, whether by resignation, early retirement, incapacity or death. We have had this in previous sections.

If he or she is dead, he or she cannot appear before the commission.

I thank Senator Norris. I go back to section 12 which places a firm obligation on the Minister to act by way of ensuring the types of gap referred to do not cause difficulty. The Minister, under section 12(1)(b)(i) will request the Public Appointments Service to proceed and trigger the process to facilitate a chair of the body. It would, of course, be undesirable for long periods to elapse without there being a chairperson. Not only could the obligations under section 22 not be complied with, as stated by Senator McDowell, but the body would not function adequately without a chairperson. It is not in the interest of anybody to allow long periods to elapse without there being a chairperson in place. I do not subscribe to the view that there is going to be a legal difficulty or a real problem regarding the matter of the evasion of responsibility on the part of the chair or the avoidance of obligations under the legislation. The Public Appointments Service, at the instruction of the Minister, can move pretty smartly to appoint a replacement in circumstances where this may occur.

The Minister may be of the view that one of his colleagues thinks he is dragging this out, but, with respect, that is not what is happening. The Minister has referred to section 12 and stated he is under a duty to request the Public Appointments Service to carry out a selection process where a vacancy arises. That is true. The Public Appointments Service, under section 12(2), is then supposed to make a recommendation to the Minister following a selection process held by it for that purpose. Then we go on to what happens and how that selection process takes place. That is provided for in section 12(4), (5) and (6). There is then an elaborate process of seeking appointments and validating appointments by virtue of eligibility and expertise. Section 12(5) requires the person to be suitable by reason of his or her standing and possessing such experience, qualifications, training or expertise as is appropriate, having regard to the function of the commission.

The people appointed are supposed to have knowledge of the operation of the courts, the provision of supports to victims of crime, human rights, equality issues or diversity among members of society, offending behaviour and the rehabilitation of offenders, or both, commerce, finance or administration, including public administration, civil society, trade union activity and academia, and professional dispute resolution and mediation activities. What is clearly envisaged is a lengthy process where advertisements are put in the newspapers and people are asked to apply for the job. Presumably, there have to be interviews. It would be very strange if we had a fast-track procedure to appoint somebody as a chairperson who then in turn does not fast-track people for appointment as judges. What happens then, if the Minister is proposing to make an appointment, is that he or she is prohibited from making that appointment unless a resolution approving the appointment has been passed by each House of the Oireachtas. The realities in that regard must be borne in mind. Months could pass before the resolutions were passed by each House.

This is not a matter of some odds on the chairperson getting a puncture on the way to a meeting. It is eminently foreseeable that there will be a vacancy in the office, for whatever reason. I cannot see and the Minister has not suggested any reason there should not be a provision for the temporary appointment of one of the other members of the commission to be chairperson. I cannot understand why that is not included.

If there is a good reason it should not be there, so be it. Let us hear it. That could be done with a resolution of both Houses if that was necessary or done on an emergency basis without such authority on the basis that if he is appointing a current Member of the Oireachtas, the Houses have vetted that person as somebody suitable to be chairperson in the event of a vacancy. However, I cannot see why the Minister will not accept that section 22 is confined to an officeholder and that if there is a vacancy, this officeholder will be asked to come in and be accountable for the general administration of the office at a time when he or she was not a member of the commission. That seems like complete non-accountability. I do not see the sense in the person who was not there when everything went wrong or when the administration fell short of what was appropriate coming in and saying he or she will be accountable, but he or she knows nothing about it and that his or her predecessor should have been asked because he or she is only newly appointed.

Will the Minister at least agree that to make the section workable, at the very least there should be some provision in this Bill about who is chairperson for the purpose of the section rather than the chairperson for the casual purpose of absence of the meeting under section 15 to ensure the accountability system works? It is not too much to ask that an assurance be given by the that provision will be made in a Report Stage amendment to provide for such a casual successor to be appointed pending the appointment of a chairperson under the elaborate scheme set out in the Bill. I do not know whether it is too late for the Minister to table amendments on Committee Stage, but it could be stuck in at the end very easily. We are making steady and relentless progress with the passage of this Bill. I would like an assurance from the Minister that the office of chairperson of the commission will not stand vacant without anybody occupying it or being appointed to occupy it pending compliance with the statutory procedure. The Minister said there would be a speedy resolution. I hope there would be and I have no reason to doubt the Minister's word, but it is clear that section 15(3)(b) envisages some other member of the commission acting as chairperson of a meeting where the position of chairperson is vacant and it is equally clear that this section does not envisage anybody functioning in that position as regards accountability to the Oireachtas in the event of such a vacancy. I cannot see any reason we should not have an assurance that this will be addressed either by a later amendment on Committee Stage or a Report Stage amendment.

With respect, it is time to draw the curtain on this section. We have heard scenarios mentioned that have little basis in reality when we speak about the sudden departure, resignation and incapacity of the chairperson during the months of July or August and the consequent parliamentary gridlock that will ensue with the non-availability of the chairperson to attend. We are merely talking about a standard provision involving the accountability of the chairperson to an Oireachtas committee. In respect of there being no chairperson in August, I have not seen too many Seanad committees requesting people to come in during August. It most unlikely that this will happen.

The chairperson giving an account of the general administration of the commission is no more than what we are requesting in this provision. In the event of the departure of the chairperson, there is provision in law for his or her replacement. There is a good reason there is no provision for attendance with regard to either presiding over meetings or attending Oireachtas committees on the part of a vice chairperson or designated officer because of the requirement to have a lay majority. Seanadóirí would not be too pleased if the chairperson of the commission said he or she was not attending but was making provision for another lay member or one of the judges to go before a Dáil committee. It is entirely appropriate that the chairperson should be the person on whose shoulders responsibility for these issues lies. I do not accept that the commission will be rendered inactive because of something that might happen in August following the sudden resignation of a chairperson. Ample provision allowing for an obligation on the part of the Public Appointments Service to fill the vacancy, have a chairperson and let him or her come in and deal with the Committee of Public Accounts as far as expenditure is concerned under section 21 is enshrined in the Bill as well as the accountability of the chairperson to other Oireachtas committees that may from time to time be required or deemed appropriate.

The Minister is-----

With respect to the Minister, there is not going to be a meeting of minds.

I know. I am getting fed up repeating myself. This matter will have to be settled by a vote. I must put the question.

It is not up to the Leas-Chathaoirleach to call the vote.

I am in the Chair.

The Leas-Chathaoirleach is in the Chair, but, with the greatest of respect, the Seanad calls the vote.

We have spent an hour and 20 minutes on this one point.

I just want to make one point and will make it very simply. There is no reason on God's earth why there should not be a provision in this Bill stating that where there is a vacancy for the position of chairperson, the Minister may, pending the conduct of an appointment procedure under the previous section, appoint one of the other members of the commission to act as chairperson. I cannot see any reason why this could not be included. The Minister then trails this utterly irrelevant scenario that the chairperson would avail of such an arrangement to say he or she will not go before an Oireachtas committee but would instead send somebody else.

Section 22 clearly states the chairperson must do this, but if the Minister had statutory power to appoint somebody to be the chairperson in the event of the position standing vacant, this issue would not arise. Perhaps there is some unseen agreement in government that it cannot be conceded that one line of this is wrong and that one amendment is appropriate and, therefore, a blindingly obvious provision, namely, that in the event of the death, resignation or removal of the chairperson, the Minister may appoint somebody to act as chairperson pending the filling of the position in accordance with sections 12 and 14, cannot be accepted. I cannot see what is wrong with such a provision. The Minister is stubbornly stonewalling us. He is saying there is no problem. What is the problem with providing that if the position of chairperson is vacant, the Minister may select from among those people even if he wanted it to be a layperson? I am not trying to sneak in the Chief Justice by the back door. Even if the Minister wanted it to be from among the laity, God help us-----

If he simply said that in the event of the position standing vacant, he could appoint somebody to be the chairperson of the commission pending the appointment under section 12, what would be wrong with that?

Is there some determination to resist all suggestions there could be anything wrong with this Bill, or that there is a hole in it? There clearly is a hole in it.

Absolutely not. The contrary is the case. I know of no other piece of legislation this year that has attracted so many amendments, many of which have been accepted by Government and some of which have been foisted on Government, but all of which are important in the context of this debate. My only regret here is that I am being drawn down rabbit warrens by Senators to explain the situation. I am keen to engage. On the other hand, I will be accused of stonewalling. We have spent an hour and a half discussing pretty fanciful circumstances that are most unlikely to exist and scenarios that to call them far-fetched is putting it mildly. The curtain should now be drawn on section 22.

Far be it from me to draw the Minister down fanciful rabbit holes.

I propose the question be put.

I have been anxious to do that for the last half an hour.

Reference has been made by Senator McDowell and implicitly by the Minister and the Leas-Chathaoirleach to the question of filibuster. I know Senator McDowell has no intention of filibustering.

I never used the word "filibuster".

The Leas-Chathaoirleach implied it. Senator McDowell has not filibustered and has made many significant legal points. Filibustering is a perfectly honourable form of political manoeuvring.

I do not accept that.

I accept it and have used it in the past and reserve the right to use it in the future. I have talked out Bills in this House.

Indeed the Senator has.

I have been very glad to do so. It was a perfectly reasonable thing to do.

The Senator can stay all night and do it. He can stay all day and all night.

I reserve the right, if I think it is appropriate, to filibuster.

It has never been made illegal and can be done. I have no problem with filibustering. I exonerate Senator McDowell.

It is unethical not to do it when one thinks there is something wrong with the legislation.

I think this will have to be settled with a vote. I will have to put the question.

We will have to put the matter to a vote.

If anyone checks the record of this debate-----

It will be there.

-----I have never filibustered or been irrelevant.

I never accused the Senator of that.

For the Minister to say these are far-fetched scenarios, I ask him to look at section 15(3).

We are on section 22.

I ask him to look at the section. It deals with the scenario in the context of a meeting of the commission where the position of chairperson is vacant. If it is not far-fetched in section 15, why is it far-fetched in section 22 when it comes to accountability? I do not see that it is far-fetched in the slightest. If we are going to have a vote, we can have a vote. My position is clear.

I do not know if there will be a vote, but I am going to put the question, "That section 22 stand part of the Bill."

If the Leas-Chathaoirleach is going to put the question, I want it to be noted that I have asked the Minister to consider removing the words "or has been" from the first line in subsection (3)(a) because they are redundant and nonsensical-----

Also to remove "or may [at a future time] be".

-----and removing "or may [at a future time] be" and inserting the ordinary sub judice ground. I am asking the Minister for assurance that he is at least open to having a temporary chairperson provided for in this statute for purposes other than section 14(3), the purposes of a particular meeting and the general purpose of operating the Act.

Senator McDowell has made his position very clear.

Question put.
The Committee divided by electronic means.

Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Question again put: "That section 22 stand part of the Bill."
The Committee divided: Tá, 20; Níl, 7.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.


  • Bacik, Ivana.
  • Daly, Paul.
  • Horkan, Gerry.
  • Lawless, Billy.
  • McDowell, Michael.
  • Norris, David.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony.; Níl, Senators Michael McDowell and David Norris..
Question declared carried.
Question proposed: "That section 23 stand part of the Bill."

No amendments to section 23 have been tabled. The purpose of the section is to give authority to the Minister to advance to the judicial appointments commission, if and when it is established, out of moneys provided by the Oireachtas, such amounts as the Minister of Justice and Equality may, with the consent of the Minister for Public Expenditure and Reform, determine for the purposes of expenditure by the commission in the performance of its functions. Subsection (2) states this section is in addition to any provision made by the Act with regard to the provision of funding for a particular purpose. I will come to subsection (2) in due course. It is very important that the House should know precisely what it is doing by authorising this section to be part of the Bill. What we are doing is assenting to a major haemorrhage on the public Exchequer to fund what, in my strong view, is a totally redundant body.

Hear, hear. It should put limits on it.

The point is the Judicial Appointments Advisory Board has functioned with a staff of one or one and a half people and no dedicated office building. In general terms it has functioned well and decent and proper people have been appointed to be judges. Those who were unsuitable have been detected as applicants and have not been recommended. Successive Governments have, since the establishment of the Judicial Appointments Advisory Board, appointed men and women to the Judiciary who have served the country well.

Starting from that point, before we say "Yes" that it is all right for the Minister to have this power to disgorge sums of taxpayers' money, we have to ask ourselves what precisely has he got in mind for the operation of this new commission. I note the commission is to have a much more elaborate structure. It is to have an office and a director. It is important in those circumstances that the Minister spell out in great detail what the annual cost of this proposed new quango is to be.

If we start at the beginning, what remuneration is to be paid to all the lay members of this body and how is it to be calculated? Are they to be paid per diem, per annum or on some other basis? Are they to be paid a fixed or variable amount and are they to be allowed expenses? It is important that we start at the top with the chairperson and move on to all the other lay members of the commission and ask the Minister, because he would have been required by the Minister for Public Expenditure and Reform to set out his estimate as to how this would, if brought in to effect-----

Is it pensionable?

That is another question. He would have been required by the Minister for Public Expenditure and Reform to set out how much money would be involved.

Then we come to the question of how many staff it is assumed the commission will have. It is to have a director and an office and unless it is a complete sham, presumably the director is going to be directing people. There are going to be people who are officers of the commission, seconded or otherwise from the public service, but we will have to see. How much money is to be spent per annum on the remuneration of the director and the various employees of the office?

For that reason, I ask the Minister to set out the anticipated salary rate for the director of this body. I noted that the director's term is two five-year terms, to a maximum of ten years. Is this to be a pensionable office or is this person to be appointed for a maximum of five years, extendible for a further term of five years, with no pension entitlements whatsoever at the end of it? If there are no pensionable entitlements, the clear question is whether this office of director is intended in reality to be one where the duties will be executed by a person seconded from the permanent Civil Service who will in any event have a pensionable entitlement at the end of his or her service to the State.

We come then to the number of employees. How many officers is it intended to appoint when the commission is up and functioning in its full form? How many officers is it envisaged will be appointed and at what levels and at what salary scales? Will they be seconded from the Department of Justice and Equality or other public service bodies, or will they be newly recruited? What will the cost to the Exchequer be and what will the additional expenditure be in respect of each grade? What will the numbers at each grade be? Will their positions be pensionable?

We also have to deal with the question of office rentals. I presume, like the Legal Services Regulatory Authority, an office will be rented for the purpose of this body. Depending on its size, I would like an estimate from the Minister as to how much money is going to be spent on office rental. I note, for instance, that €15 million has been blown away in Baggot Street by the failure of the Department of Health to move from the salubrious surrounds of Hawkins House to the award-winning Miesian Plaza on Lower Baggot Street. Owing to industrial relations problems, it has lain idle for some considerable time. I would like to know how much money is going to have to be spent on office rental.

I would like to welcome to the Public Gallery Mr. Paddy Homan and some of his colleagues, friends of Senator Lawless who are here from Chicago. They are all very welcome to Ireland. I hope they are having a nice time here.

Progress reported; Committee to sit again.