Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 41
Debate resumed on amendment No. 86h:
In page 28, line 29, after "office" to insert the following:
"(other than the office of the Chief Justice, President of the Court of Appeal, President of the High Court, President of the Circuit Court or President of the District Court)".
- (Senator Michael McDowell)

Senator Craughwell was in possession.

I welcome the Minister back to the House to discuss the Bill. Yesterday, we spoke about the issue of judicial vacancies and recommendations from the commission of persons for appointment. The section states:

(1) Subsection (2) applies where—

(a) more than one judicial office in the same court stands vacant, or

(b) the following conditions are satisfied—

(i) the Minister reasonably apprehends that more than one judicial office in the same court will stand vacant, and

(ii) the Commission has received a request of the Minister (which request shall be addressed to the Commission and which, by virtue of this subsection, the Minister has power to make) that the recommendation referred to in subsection (2) be made.

(2) Where this subsection applies, the Commission shall, in accordance with this Act, recommend to the Minister, in respect of the judicial offices concerned, the names of such number of persons as is equal to the relevant number ranked in the order of the Commission’s preference (and that expression of preference shall not make any distinction between the several vacancies concerned).

(3) In subsection (2) "relevant number" means the number obtained by multiplying by 2 the number of vacancies (or apprehended vacancies), and adding one to the product.

As we heard yesterday, section 41(3) would mean there would be five names for two vacancies and seven names for three vacancies. The amendment Senators McDowell and Boyhan and I have proposed seeks to ring-fence the offices of the Chief Justice, President of the Court of Appeal, President of the High Court, President of the Circuit Court and President of the District Court. I may be mistaken but yesterday I got the impression from the Minister that he would be somewhat favourably disposed to making this amendment.

Prior to debating the amendment, we had just finished a debate on the trickle-down effect in which we had been trying to outline the problem of trickle down. In the case of this amendment, we did not want to mix up different expertise or requirements. The appointment of the Chief Justice may require a set of skills that may not necessarily be commensurate with the appointment of an ordinary member of the Supreme Court. From this point of view, we seek to ensure that these appointments are made discretely one by one and that, regardless of other vacancies, if a vacancy arose in the role of Chief Justice, it would be filled in its own right. It makes perfect sense when we look at the structure of the courts that we would ensure we did not seek to fill from the same pool the commission had interviewed the role of an ordinary member of the Supreme Court and the Chief Justice. From this point of view, we hope the Minister will accept the amendment and what we are trying to do.

I am pleased to resume debate on the amendment. I remind the Senators that the policy of the Bill was to have a separate dedicated process in respect of senior judicial offices, namely, the Chief Justice, President of the High Court and President of the Court of Appeal, as was proposed in the original section 46 of the Bill. I have no difficulty with this aspect of the amendment insofar as it relates to what we can describe, and what we have been describing, as the three most senior judicial posts. I say this in the context of the overall architecture of the legislation, working from section 37 serving as a general explanatory provision to the effect that chapters 1 and 2 of Part 7 do not apply to procedures in respect of certain senior positions. The three senior judicial posts are provided for separately in section 44 of chapter 3 of this Part. There is, therefore, no necessity to have an exclusion in any part of chapter 2 that makes reference to the posts addressed in chapter 3, that is, in section 44.

We have covered previously this issue of the disapplication of certain provisions to the three exceptionally senior positions. We dealt with it the previous day. It will not come as news to Senators that we need to do further work to section 44 on Report Stage.

There is also a new aspect in amendment No. 86h which is further to what I stated already. The proposal to remove the offices of all the courts' presidents from the commission process, including the lower courts, is new. I already indicated that I will come back with amendments to section 44 on Report Stage. I acknowledge what Senators McDowell and Craughwell have said in that regard. I want to see what I can do to expand the section 44 provision and I will consider that for Report Stage. I am not sure whether Senator Craughwell is minded to withdraw the amendment in the meantime with a reservation of right on his behalf and on the part of Senator McDowell as well to come back on Report Stage in the event of them not being happy with what I bring forward. I ask that the House does not divide at this stage, having regard to the fact that there is not much between us.

I am grateful to the Minister for his willingness to re-examine the section. What we set out to achieve with the amendment was to prevent the commission from presenting to the Government a preferential ranking of prospective judicial nominees for the positions of Chief Justice, President of the Court of Appeal, President of the High Court, President of the Circuit Court and President of the District Court. In light of the Minister's acknowledgement that there is an issue to be dealt with, for which I am grateful, it behoves me and my colleagues to withdraw amendment No. 86h, with the proviso that we will reintroduce it on Report Stage if we are unhappy with what the Minister brings forward. The Minister has indicated a willingness to examine that area and I thank him for that. I will formally withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 87:

In page 29, line 3, after "concerned" to insert the following:

", having regard to the objective that the membership of the judiciary should comprise equal numbers of women and men".

Senator Bacik stated she wishes to withdraw that amendment but wants liberty to re-enter it on Report Stage. Having moved it, I will withdraw it.

Amendment, by leave, withdrawn.
Section 41 agreed to.

Are we speaking on the section now?

I am sorry it slipped by me there. I would have liked to have spoken on the section but we have agreed it.

I asked if it was agreed and I thought all Senators agreed to it.

NEW SECTIONS

Amendments Nos. 87a and 87b, in Senators McDowell, Boyhan and Craughwell's names, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 87a:

In page 29, between lines 8 and 9, to insert the following:

"Notifications to Government

42. In every case where the Commission makes a recommendation to the Government in respect of any appointment to judicial office, the Commission shall also notify the Government of the names of all persons who—

(a) applied to the Commission in respect of that appointment,

(b) were persons whom the Commission considered to be eligible persons in accordance with the requirements of section 35, and

(c) were not included among the persons recommended by the Commission in accordance with the provisions of this chapter.".

In amendment No. 87b, in page 29, between lines 8 and 9, we wish to insert the following provision:

In every case where the Commission makes any recommendation to the Government in accordance with the provisions of this chapter, the Commission shall inform each of the persons applying to the Commission in respect of the judicial appointment in question—

(a) whether the person was or was not among those persons recommended by the Commission to the Government in respect of that appointment, and

(b) whether, if it were the case, the Commission considered that the person was not eligible for appointment by reason of the requirements of section 35,

and in any case where the Commission cannot make any recommendation the Commission shall notify all persons who applied to the Commission in respect of that appointment that it made no recommendation.

The objective of this amendment is to ensure that a person who applies to be recommended by the commission is informed as to whether he or she was or was not recommended. The secondary objective concerns providing information of where section 35 has applied to exclude persons who otherwise might have been selected but for the section 35 criteria. Section 35 states: "In addition to the requirement of sections 7 and 36 and subsection (2) and (where it applies) subsection (3), the Commission shall not recommend the name of a person to the Minister unless it is satisfied that the requirements of the relevant provisions are complied with in relation to the person." The relevant provisions are set out in subsection (6).

Section 7 states that a decision to recommend to include somebody on the shortlist of three "shall be based on merit." It further states:

Subject to subsection (1), where the function, under this Act, of selecting and recommending persons for appointment to a judicial office falls to be performed, regard shall be had to—

(a) the objective that the membership of the judiciary should comprise equal numbers of men and women[.]

That is the first proposal, namely, that there should be numerical equality between men and women as far as possible.

Section 7 also states that regard should be had to "the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole". It also states that regard should be had to "the objective that, consistent with the written statement-----

On a point of order, there are not many Members present and Senator Craughwell's contribution should be listened to by an appropriate number of Senators.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

Before I call on Senator Craughwell to resume, I would like to welcome to the Public Gallery Deputy Margaret Murphy O'Mahony and her guests, Michael, Cian and Caoimhe Walsh from Bandon. They are very welcome. I ask Senator Craughwell to resume on amendment No. 87a.

The section also states the objective-----

The idea of a quorum is that people remain.

Is the Senator making a point of order?

Is the idea of the quorum not for people to remain for the debate?

No. Once there is a quorum in the House; that is it.

The section states, "the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole". It also states, "the objective that, consistent with the written statement most recently provided under section 53(7) to the Procedures Committee concerning the needs of the users of the courts in that regard, the membership of the judiciary should include persons with a proficiency in the Irish language." In the past we have seen some pretty notable cases struck out because the Irish language was not used. This happened recently with a road traffic incident if I am not mistaken, and there have been various other incidents.

We made the point yesterday that those seeking elevation within the courts system or seeking appointment to senior judicial positions should not see their application disappear into the ether, with no feedback or information on what happened or where things went right or wrong. Yesterday I made the point that natural justice requires that people who put a lot of effort into applying for positions are entitled to some sort of explanation as to whether they made the list or not. That is what we are trying to provide here. With the prospective paragraph 42(a) we hope to clarify whether the person was or was not among those recommended by the commission to the Government in respect of the appointment. I accept that the insertion of this amendment will give rise to questions. People who did not make the shortlist may want to ask why. It may also lead to a situation where the deliberations of the commission are subjected to judicial review of some sort or other. Individuals may feel they should have been on the list if they are not. We are trying to provide people with some sort of assurance that the procedures are fair, open and transparent. This amendment does that.

To turn to paragraph (b), if the commission considers a person to be ineligible for appointment by reason of the requirements of section 35, and where the commission cannot make any recommendation in any case, it shall notify all persons who applied to it in respect of that appointment that it made no recommendation. That would be a pretty serious situation. Yesterday the Minister, Senator McDowell and I seemed to have three different views on how long it would take to fill a position based on the amount of time it would take to convene the board of the commission-----

That is a matter of legal opinion.

-----have the board sit and agree the advertisement for the position, advertise it and carry out the initial application process. We have discussed the application process at length in this Chamber with respect to how people would make it through the first hurdle. We have a situation there. Once applications come in they have to be assessed by somebody. Once that assessment is completed, a board must convene and review it. A board must then convene and carry out interviews. After the interviews have taken place, there must be some sort of feedback. We are talking about very senior legal positions here.

That would be a very serious situation, as the Minister would agree. It might give rise to the fact that the advertisement was flawed and many other questions with respect to the selection process. The selection process would have to be more robust than it would be without this amendment. Every step would have to be assessed in advance for the likely impact of potential candidates. The potential candidates could be reassured that once the application is submitted, they would know precisely for what they applied. This is because the qualifications would have been set out properly in whatever advertisement was put forward and there could be no misunderstanding.

By having this amendment within the Bill, we would safeguard against the likelihood that people would apply incorrectly for a position for which they were not suitably qualified. Yesterday we spoke about qualifications for the Chief Justice, specifically the depth of knowledge and experience that would be required for that job. Somebody who recently qualified at the Bar could not apply for the position of Chief Justice as the advertisement would be very clear about the level of expertise, length of time in office and knowledge of the Irish language, for example. All of these would be set out very clearly in any advertisement. The likelihood that the commission would make a mistake in rejecting an application would be greatly diminished by virtue of the transparency brought by this amendment.

My colleagues, Senators McDowell and Boyhan, and I have always said the amendments we are putting forward are designed to support the Minister's Bill. We are not trying to do away with the general thesis from the Minister. Many people are saying that certain individuals in Dáil Éireann are pushing the Bill and forcing the Minister and everybody else down this road. I do not believe that but I believe it is the Minister's Bill; it will be his Bill forever as he has brought it before the Houses. I do not necessarily believe it is the Bill he wanted and although it came from the programme for Government, the Minister would have done this differently if he had time to do so. This amendment seeks to ensure any persons putting their names forward will be certain of what they are applying for and will have the necessary qualifications. If those people are not selected, they will know this.

There is another matter. We spoke about confidentiality. A barrister, for example, may be chosen for a position that a learned judge may have applied for as well but where the judge did not make the list. This would be serious and we would have to ensure the information in question would not get into the public domain, as it would have a fairly detrimental effect on the career of that learned judge. This is where we walk a bit of a tightrope. The individual who applied is entitled to know how he or she fared but the information is subject to confidentiality processes. Somebody was here the other day shouting about something in the newspaper and demanding the Minister's head on a plate because something had allegedly been leaked from the Minister's Department. All we need is a leak before we see all sorts of scenarios. Natural justice would require that an individual should know if he or she has made a list.

In the education area in recent times positions have been advertised but a suitable candidate for the position has not been found even over two, three or four occasions. Part of this is because of the onerous responsibility placed on people in senior positions and the public awareness, specifically arising from instant access to social media, etc. It might prevent people from applying for positions, and we are talking about high-profile positions in the Judiciary. If it is not possible to make a recommendation - as covered by section 42(b) - it would be very serious. Apart from anything else, having to re-advertise the position would give rise to serious media speculation as to what went wrong, with ensuing questions. Nevertheless, this is about the transparency all of us would like to see. I await the Minister's comments.

I have good news for Senator Craughwell as I will accept amendment No. 87b. I am amenable to it and I indicated as much last night. I would be happy to accept it and in the event of there being any unforeseen difficulty, we can come back to it on Report Stage. I indicated some weeks ago that I was keen to find a solution with what I felt was a worthwhile proposal on the part of the Senators. I will accept it and it can be the subject matter of further debate if appropriate. It is a fair point.

With respect to amendment No. 87a, I have listened to Senator Craughwell speaking about delays in appointments. Much of the lead-in work described by Senator Craughwell over the past number of days and nights is already in place. The procedures and requirements for particular posts will be set out in the published statements under Part 8 of the Bill. This will be the job specification, the appropriate experience, attributes, qualities and what will be sought. The job description and requirements will not have to be designed each time a vacancy arises. I will not revisit last night's debate on delays but I am conscious of what Senators have said. I am conscious that there should not be any form of delay. I will not accept amendment No. 87a as it is not necessary or essential. I ask the Senator to withdraw it. I will accept amendment No. 87b.

I will withdraw amendment No. 87a with a view, perhaps, to bringing it back on Report Stage. I thank the Minister for accepting the amendment. If he and I had been here for the past couple of weeks, we might have got through the Bill by now. It is a conciliatory act by the Minister as the Bill goes through the House. It will make the Bill much stronger.

Amendment, by leave, withdrawn.

I move amendment No. 87b:

In page 29, between lines 8 and 9, to insert the following:

“Provision of information to applicants

42. In every case where the Commission makes any recommendation to the Government in accordance with the provisions of this chapter, the Commission shall inform each of the persons applying to the Commission in respect of the judicial appointment in question —

(a) whether the person was or was not among those persons recommended by the Commission to the Government in respect of that appointment, and

(b) whether, if it were the case, the Commission considered that the person was not eligible for appointment by reason of the requirements of section 35,

and in any case where the Commission cannot make any recommendation the Commission shall notify all persons who applied to the Commission in respect of that appointment that it made no recommendation.".

Amendment agreed to.
SECTION 42

Amendments Nos. 88, 88a and 89 are related. Amendment No. 88a is a physical alternative to amendment No. 88 and amendment No. 89 is consequential on amendment No. 88. Amendments Nos. 88 and 89 may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 88:
In page 29, to delete lines 21 to 27 and substitute the following:
"(3) In any case to which subsection (1) applies, the Commission shall cause its recommendation to the Minister to be accompanied by a statement of the name of each eligible person (other than a person the subject of its recommendation) who had made a relevant application.
(4) Subsection (5) applies where the Commission determines that it cannot, in accordance with this Act, recommend to the Minister the name of any person for the purposes of section 40 or 41 (and the case is other than one in which there were no relevant applications whatsoever by eligible persons).
(5) Where this subsection applies, the Commission, on making the determination referred to in subsection (4), shall inform the Minister of it and shall furnish to the Minister a statement of the name of every eligible person who had made a relevant application.".

Amendment No. 88 corresponds with a Government amendment on Dáil Report Stage which was proposed and defeated in the other House, and is linked to amendment No. 89. The select committee passed two Opposition amendments, at the time Nos. 139 and 140, to section 44 of the Bill as initiated. The effects of those amendments are, first, to oblige the commission, when it has been unable to recommend a person for appointment, to re-advertise at three-monthly intervals until it is satisfied to recommend at least one person to fill the vacancy concerned and, second, to delete subsections (3) to (5), inclusive, of section 44 of the Bill as initiated, hence dispensing with the requirement that the commission, if it cannot recommend any names or recommends fewer than three names, provide to the Minister a statement of the name of every eligible applicant. My Report Stage amendment in the Dáil was unsuccessful in seeking to reverse the committee amendments and to reinstate the appropriate provisions of the Bill as initiated in what is now the section 42 before us.

I am unhappy with the state of affairs left in place as a result of the amendment carried by the Dáil committee. We have to acknowledge the original purpose was to deal with probably an exceptional enough event, which was the situation where the commission could only recommend fewer than three names, that is, one or two, or in certain circumstances, none. The general thrust of the provision is based on the corresponding provision in statute that provides for the work of the current Judicial Appointments Advisory Board. The 1995 Act envisaged a situation where it might not be possible to recommend the then prescribed number and, in these circumstances, the particulars of the eligible candidates were to be forwarded to the Government. In today's terms, it does not make sense to create a situation where a judge is urgently required to be allocated to essential court business but the Government is not provided with information that may allow it to nominate a person for appointment.

We are back to an anxiety on my part to ensure there is no delay. In such circumstances, if they arise, I believe it is important that the Government should exercise the constitutional prerogative to decide to appoint or, indeed, not to appoint a judge. That would be the case in any event under the Constitution but that decision can only reasonably be informed by consideration of the particulars of those who have applied and, consequently, been deemed eligible. It is proposed that amendment No. 88 revert the position to that of the Bill as published, which requires the commission to forward all the eligible names in specified circumstances. The alternative of retaining the measure as it stands would mean the Government would face two scenarios: first, having only one or two names to work from, with no formal additional information about eligible persons who have applied; and, second, not being able to proceed where the commission could not recommend any name and the commission re-runs the competition in a potentially endless loop at quarterly intervals. This may be in conflict with the choice requirement under the Constitution. I would ask Senator Craughwell in particular to support me on this because he is anxious to ensure we do not have delay and he is on record as supporting due process, but a process that is not in any way frustrated by delay.

I put this amendment on the basis that it would not be acceptable to have a situation where vacancies are left unfilled for a series of quarters while the commission runs repeat competitions to find people it might deem appropriate and suitable. That is my position on amendment No. 88. I will hear Senator Craughwell on amendment No. 88a and will then reply.

Amendment No. 89 is a drafting amendment to section 43 consequential on the addition to the Bill of the subsections referred to in amendment No. 88.

On amendment No. 88, subsection (3) currently states:

If the Commission cannot, in accordance with this Act, recommend to the Minister any names of persons to fill a judicial vacancy, it shall invite, through means of advertisement, the making of applications by persons to be considered for selection, that is for their being selected to be the subject of a recommendation for appointment to judicial office, at three-monthly intervals until such time as the Commission is satisfied, subject to section 35 and section 36..."

I understand where the Minister is coming from and I have acknowledged that I have seen this happen in education, for example, where it has been almost impossible to find a suitable candidate to fill a principal's position. I am concerned that the commission would find itself in a position, having advertised a vacancy for, say, an ordinary member of the Supreme Court, where it failed to find three suitable candidates. I am mulling it around in my head, in particular the fact it would advertise, then advertise again in three months and then again in three months thereafter. I wonder what our media would make of the fact. First, there is the point the commission would have failed to find suitable applicants in one or two rounds of advertisements. Second, let us say we go to a third advertisement, which means a period of six months, and we then find two or three people ready to make a recommendation to the Minister. What would the media make of that judge? The first question would be whether he or she applied for the first advertisement, whether he or she applied the second time, and whether he or she is some sort of, for want of a better description, yellow-pack judge, a judge of last resort, and that we could not find anybody until this person came along.

There is an inherent fairness in what the Minister is trying to do and if that is the way the Bill was originally written, I would support him on it. However, it gives rise to difficulties in the world we currently live in, where people are subjected to the most horrendous public scrutiny, sometimes based on nothing. We could find ourselves in a situation where the commission, having gone through the procedures, advertised the position and set out the criteria, then failed to find three names out of all the people in academia and the legal profession who are practising in any of the courts. That would be a matter of great concern.

The Minister might clear up one point. In putting the advertisement in place, the commission would be within its rights to set out certain criteria for the position as advertised, if I read the Minister right. Could the commission include in its advertisement, shall we say, the more human traits, rather than the academic or the experiential? We spoke here last night about a situation where a Supreme Court was weighted with more conservative judges and there would be a need to balance the situation, and we see in the United States all the time where a more liberal judge or a more conservative judge is needed to bring balance back to its Supreme Court. Will the commission have within its rights, or will the Minister have within his or her rights when he or she puts a request to the commission, the facility to say there are, for example, too many conservative judges and we need a liberal, or that we do not have judges with sufficient expertise in criminal law or who are capable of hearing cases in the Irish language? While the Irish language and the criminal law are more academic aspects, there is the question of the dispensation of the person being looked for with respect to their liberal or conservative views.

I would have thought that, as Minister for Justice and Equality, he would want to have an eye over the Four Courts with respect to its views on social issues, for example, and, specifically, whether there were too many conservatives or liberals down there. The Minister may correct me if I am wrong. I am happy to come back to him when I have heard his words on that. Is that something that, as Minister for Justice and Equality, he would want to be able to do when we select judges? Is it something that the procedures that would be followed by the commission would be able to put in place? It is one area where we could find a situation that despite the fact there were a number of eminent and learned judges or barristers applying for the position, they did not fulfil the human criteria he was looking for with respect to their liberal or conservative views. I would be interested to know where we stand on that. I will wait for the Minister to make his point.

Neither I nor the Government would make any recommendation to the commission regarding the political persuasion of any applicant or the requirement in such circumstances. It is up to the procedures committee to set out in detail the type of characteristics required. In fact, the Bill is quite specific in many respects. Indeed, it is the commission that would examine the appropriate vacancy from time to time and see if that vacancy fits with any particular pursuit within the courts system.

I am pleased to hear the apparent support of Senator Craughwell for amendment No. 88. I am as anxious as he and others to remove from the Bill the carousel-type provision in subsection (3). However, the difficulty is that the Senator's amendment No. 88a somewhat overlaps with my amendment No. 88. I would prefer if Senator Craughwell would go further and instead support my alternative amendment No. 88 and amendment No. 89 which, together, would bring matters closer to the policy and procedure within the Bill, as initiated, but would also accord with the point raised by Senator Craughwell regarding due process, no undue delay and a sense of purpose on the part of the commission to get the job done in accordance with the terms of reference under the Bill.

I thank the Minister for his response. I am minded to support his amendment. I wish to clarify the situation. Let us suppose a vacancy arises, such as for an ordinary member of the Supreme Court, and the Minister informs the chairman of the commission that we need to establish a board to fill the vacancy. If I am correct the Minister is saying that the responsibility of the Minister for Justice and Equality starts and stops at that point; the Minister would say, "We have a vacancy, Mr. Chairman, set about filling that vacancy and off you go."

Let us get back to the issue of the balance of the Judiciary and the issues to which I referred a few minutes ago with respect to the human rather than political characteristics. I understand from where the Minister was coming when he used the term "political", but I tend to look at them more as human characteristics. There are people who are of a very conservative nature in their views. We saw that in recent referendums. Is the commission within its rights to sit down and consider the current make-up of the Supreme Court or High Court and agree among its members that people with criminal, company law or constitutional expertise are required for a particular vacancy, and then to further classify persons as being conservative or liberal in their views? In such a situation one would find that, in effect, the commission is tailoring the position. Last night, Senator McDowell made the point-----

I can short-circuit this discussion by saying that will not happen.

How does the Minister mean it will not happen?

It will not be in the terms of reference from the Government to the commission.

Can the commission do it?

I said the political disposition or otherwise. The commission will deal with its own affairs.

Will it have within its authority or within the scope of the legislation the right to consider these matters?

No. The legislation will be silent in that regard.

So the decision of the commission will be based strictly on the academic and experiential qualifications of the applicants and not necessarily their views on societal issues. For example, it could not say that it must get someone with criminal justice knowledge because it does not have such a person. It could not say it needs someone with knowledge of corporate or company law.

Senator Gerard P. Craughwell: The decision of the commission will be based strictly on the academic and experiential qualifications of the applicant and not their views on societal issues. For example, it could not,, decide that a candidate with experience of criminal or corporate law is required.

That will depend on the vacancy.

So the vacancy could specify such things as the legal expertise required.

That is all in the Bill.

In that case, I am minded to support amendment No. 88.

Amendment agreed to.
Amendment No. 88a not moved.
Question proposed: "That section 42, as amended, stand part of the Bill."

I thank the Minister, who has been more than facilitating in accepting amendments and bringing forward his own amendment which brings the Bill back to what was originally drafted. I thank the Minister for that. This is part of what has been going on here to try to make this a better Bill. I see a willingness on the part of the Minister to make this a Bill which will work. From that point of view I am very happy to support section 42 having gone through the amendments. I thank the Minister for facilitating that.

I am grateful for the comments of the Senator.

Question put and agreed to.
SECTION 43
Government amendment No. 89:
In page 29, lines 38 and 39, to delete “that provision” and substitute “subsection (3) or (5) of that section”.
Amendment agreed to.
Question proposed: "That section 43, as amended, stand part of the Bill."

Government amendment No. 89 would mean that in the event of the commission being unable to recommend three names for appointment, but was able to recommend a lesser number or no persons as well as the name being provided to the Minister, it will also provide applicants' education, professional qualification, experience, character records and results of an interview or tests held or conducted by the commission is respect of the application.

Bizarrely, as the legislation currently stands, the Attorney General is forbidden, under pain of criminal offence, from revealing to the Cabinet any persons who sought judicial office as part of the commission appointment process, yet, according to the Government's amendment, if, for whatever reason, the commission is unable to recommend any person for judicial office then it is obliged to list the name of every person who put himself or herself forward to the Minister.

Separately, and equally bizarrely, the commission is only bound to provide the Minister with the applicants' education, professional qualifications, experience, character records and results of any interview or tests held or conducted by it in respect of the applicant if less than three persons are recommended for a particular position. We addressed the position of the Attorney General and, as far as I recall, the Minister was open to a discussion on the position. Returning to my earlier point, and taking a scenario where we have advertised a judicial post-----

I will not discuss it now but I am open to future discussion on this issue.

I am not going to discuss it on section 43.

I understand that-----

Nor would I expect that the Chair to allow me to do so.

This might address the Minister's thinking. I refer to a situation where the Attorney General is sitting on this commission. The commission has advertised a position which it was not possible to fill in the first round. There would then be a second round. That second round could bring the position into public debate. The media would then have a field day regarding the commission being unable to appoint anybody. Freedom of information requests would then follow on how many applications there were. In that scenario, the names cannot be revealed but it would be possible to find out how many candidates applied for the position. There would then be media speculation that out of perhaps 40 people who applied, the commission could not find three. The Minister can imagine how there would be a field day in that scenario.

If it is not possible to appoint someone on a first round, and having gone through a second round, would it not be advisable that the Attorney General would be free, under his or her Article 30 constitutional role, to make a recommendation to the Cabinet based on what transpired during the selection process? It breaks us out of the transparency I have been looking for but, at the same time, it does not allow a process to go on indefinitely without being addressed. It would allow for the filling of the vacancy. That is something we were talking about last night and the Minister expressed concern about leaving positions vacant. It can be imagined how difficult the situation would be if it was not possible to find three suitable names in the first and second rounds. There has to be a proviso of some sort in the Bill, which would allow the Government to take advice from its legal adviser to fill that position.

I do not wish to unduly delay the proceedings of the House. I have listened carefully to the Senator on this issue over the past number of days. I am minded to seek a formula that might address the issue as raised. I have two points to make. First, I refer to the issues of confidentiality, especially those referenced in sections 27 and 28. In many respects, Senator McDowell was the person who, more than any other Senator, introduced the issue of confidentiality of process. That was for good and sound reasons. I refer to the fact that information of a sensitive and personal and professional nature should be kept within the confines of the commission and not disclosed, even in exceptional circumstances.

This has also brought into focus the constitutional role and function of the Attorney General. I am examining that and I am minded to see whether I can devise a formula that will facilitate the type of scenario as envisaged by Senator Craughwell. As I said earlier, if we can proceed through Committee Stage, I will require a period of reflection for a number of weeks before we take Report Stage. That would be part of the deliberative process in any event. I will need to consult my Government colleagues for amendments to be made. I am conscious, however, of the point raised by the Senator. In any event, I will not bring in such a formula, if I can find one that will be to the satisfaction of the Senators, under section 43.

I thank the Minister and appreciate what he said. I am mindful, however, that ever since we first started to work through this Bill I have been toying with the conflict between the constitutional roles of the Government and the Attorney General. The Bill does not necessarily usurp those roles but it seeks to control them. For example, we have been down the road of the scenario where a Government gets three names. It does not necessarily have to appoint any of the three people named. It can appoint whomever it wants. I am greatly bothered by the confidentiality issue relating to the Attorney General. I have only been in this House for four years but I have been observing politics most of my life. Time and again, Governments refer to the advice given by the Attorney General as having led to a particular series of events or decisions made.

As a former president of a trade union, I find myself slightly conflicted. On one hand, I want there to be clear, open and transparent processes and procedures so there can be no questions and no doubts as to how a commission arrived at a decision. I support the procedures being put in place by the Minister, albeit we are battling our way through it, and I admire his constant work with us on this. Then there is the other side of me, however - the practical citizen side. From that perspective, I am thinking of a situation where we find ourselves in a sort of a stopgap position. The process has been gone through once and is now being done a second time. There are perhaps people who were close but not close enough, or there is somebody down in the Law Library or the High Court who could fill a Supreme Court position or a position on the Court of Appeal.

The Attorney General knows that. He or she also knows that the commission has done its work and it was just unfortunate that a person, who might be seen by the Government, the Bar and the various courts as a highly suitable, would not apply because he or she did not like the application process. The courts might then become a political football because of what the media would make of a failure to find three names. Rather than allow that to happen, would it not be vital, when the second round is over, regardless of the outcome, that there would be finality with respect to the appointment? That finality would come by way of a recommendation from the Attorney General to the Minister for Justice and Equality. He or she could then bring it to Cabinet.

There would not then be a situation of an unfilled post, media speculation and all sorts of nonsense on the social media about the state of the Judiciary, etc. That is one of the areas where the Minister could ensure he or she does not end up in a scenario where, having gone through the process twice, he or she is still without a suitable applicant.

I am not sure that could be done by amending the Bill on Report Stage. I am very mindful of the fact that on Report Stage it is, "One stab and you are out" with respect to debate on amendments. Our opportunity to tease out these issues is now. We will not get the same opportunity on Report Stage. While I greatly appreciate the Minister's willingness to work with us on it, I want assurance that we are going to find a way out. I do not want the Judiciary to be brought into disrepute. God knows politics gets enough of that from social media and the media in general. We do not want members of the Judiciary to be second-guessed by whatever media one cares to look at. We do not want TV programmes or "Prime Time" going through who might or might not have applied, why they might or might have been selected and why the constitutional role of the Attorney General prevents him or her from bringing making a recommendation as the legal adviser to the State. We need solid reassurances at this stage that the Minister will work with us on that.

I am happy to offer some comfort to the Senator, if not reassurance. He pointed out that Report Stage is "One stab and you are out". On Committee Stage we have had so many stabs that there is a danger of mortality. I am anxious to help and I refer to my previous commentary in that regard.

With that in mind I am willing to take the Minister's word on section 43.

I propose a suspension before the Acting Chairman puts the question, because there is a Topical Issue debate in the Dáil which the Minister must attend. In my capacity as Acting Leader I propose that we suspend the House until 4.45 p.m.

Sitting suspended at 4.15 p.m. and resumed at 4.45 p.m.

I welcome the Minister for Justice and Equality, Deputy Flanagan, back to the House. We will now dispose of section 43, as amended.

Question again proposed: "That section 43, as amended, stand part of the Bill."

Section 43 is reasonable as it stands. I do not think anybody could object to it. However, it is too narrow in its scope and the Government should have-----

The question has been put. There cannot be any further discussion.

The question was not put. It was about to be put when Senator Conway interrupted before the suspension.

The question was in the process of being put before the suspension.

I proposed the question again and Senator McDowell intervened to make a contribution, as he is entitled to do. If the question had been put and deliberated on before the sos, he would not be allowed to contribute. I am putting the question.

This has nothing to do with Senator McDowell. I am seeking clarity. The Acting Chairman before the suspension, Senator Noone, was in mid-stream and about to put the question when we had to suspend the House.

The Acting Chairman was interrupted by Senator Conway who requested that the Minister be allowed to attend to other business in the Lower House, which was fine.

That was an interruption. The Chair should now put the question.

Senator McDowell is entitled to contribute before the question is put.

I will not be long. It is amusing to see Senator Conway tripping himself up.

His intervention has doubled the time spent on this.

The commission is obliged by this section to give particulars of the education, professional qualifications, experience, character and where applicable the records of any interviews held by the commission in respect of the person. This is in respect of a person who it has recommended. As part of the starvation by Government of the information as to whom the non-short-listed people are and what their qualities, qualifications and experience are, this section effectively rubber stamps the notion that the Government should only be given information about the successful applicants and be kept in the dark as to the unsuccessful applicants. On that basis, I am opposed to it.

Question put:
The Committee divided: Tá, 20; Níl, 12.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Coffey, Paudie.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Hopkins, Maura.
  • 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.

Níl

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Nash, Gerald.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Gerard P Craughwell and Michael McDowell.
Question declared carried.
NEW SECTION

Amendment No. 90, in the names of Senators McDowell, Boyhan and Craughwell, has been discussed with amendment No. 78.

I move amendment No. 90:

In page 30, between lines 2 and 3, to insert the following:

44. (1) This section applies to the following judicial offices:

(a) the office of Chief Justice;

(b) the office of the President of the Court of Appeal;

(c) the office of the President of the High Court;

(d) the offices of membership of the Supreme Court and the Court of Appeal other than those specified in paragraphs (a), (b) and (c).

(2) Where any of the judicial offices to which this section applies stands vacant or where the Minister reasonably apprehends that any of those offices will stand vacant, the Minister shall request the Senior Judicial Appointments Committee (in this section referred to as “the Committee”) of the Government.

(3) For the purposes of this section, the Committee shall be a committee consisting of the following persons:

(a) the Chief Justice;

(b) the President of the Court of Appeal;

(c) the President of the High Court;

(d) the Attorney General; and

(e) the Chairperson of the Top Level Appointments Committee.

(4) Where any of the office-holders who is a member of the Committee has expressed, or has an interest in appointment to the judicial office mentioned in subsection (1) or in the event of any of the said offices standing vacant or where the Government is satisfied of the incapacity of the holder of such office to function as part of the Committee, the provisions of subsection (5) shall have effect.

(5) Where the circumstances in subsection (4) apply, the Committee shall consist of—

(a) the members of the Committee mentioned in subsection (3) who are not affected by the terms of subsection (4), and

(b) a person or persons acting in substitution for any person affected by the terms of subsection (4) as provided in subsection (6).

(6) The following persons shall act in substitution for the persons mentioned in subsection (3):

(a) in the case of the Chief Justice, the next most senior ordinary judge of the Supreme Court who has not and is not expressing an interest in appointment to the vacancy mentioned in subsection (2);

(b) in the case of the President of the Court of Appeal, the most senior ordinary judge of the Court of Appeal who has not and is not expressing an interest in appointment to the vacancy mentioned in subsection (2);

(c) in the case of the Attorney General, the Director General of the office of the Attorney General.

(7) The Committee shall, for the purposes of making a report under subsection (2)

(a) inform all members of the Superior Courts of the vacancy and invite any such member to express an interest in being appointed to the judicial office mentioned in subsection (2),

(b) publish any circular or advertisement as it considers appropriate inviting any other person eligible for appointment to the judicial office mentioned in subsection (2) to notify the Committee expressing an interest in such an appointment.

(8) The Committee shall as soon as practicable make a report to the Government when requested by the Minister in accordance with subsection (2), and shall include in its report—

(a) the names of such persons as have expressed an interest in appointment to the judicial office mentioned in subsection (2), and

(b) the names of any such person or persons (not exceeding three in any case) whom the Committee recommends for such appointment.

(9) In advising the President in relation to the appointment of a person to a judicial office to which this section applies, the Government shall first consider for appointment those persons whose names have been recommended to the Government by the Committee in a report furnished to the Government under the provisions of this section.

(10) In the event of more than one vacancy occurring or being apprehended for the purposes of subsection (2), the Committee shall submit separate reports in respect of each vacancy.

(11) The proceedings and reports of the Committee shall be secret and, subject to the provisions of this Act, shall not be disclosed or made public in any way.”.

Amendment 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.

Amendment again put:
The Committee divided: Tá, 11; Níl, 21.

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Nash, Gerald.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Coffey, Paudie.
  • Conway, Martin.
  • Devine, Máire.
  • Feighan, Frank.
  • Gavan, Paul.
  • Hopkins, Maura.
  • 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.
Tellers: Tá, Senators Gerard P Craughwell and Michael McDowell; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
SECTION 44

Amendment No. 91, in the name of Senators Bacik, Humphreys, Nash and Ó Ríordáin, has already been discussed with amendment No. 86. Is the amendment being moved?

I might wait for the Minister.

The amendment has already been discussed.

It has been discussed but I have already indicated my intention to withdraw this amendment, look again at this grouping of amendments and reintroduce them on Report Stage.

Now I understand why Senator Bacik is waiting for the Minister.

I will be withdrawing the amendment. I just want the Minister to hear that.

I have already committed to withdrawing this amendment.

I welcome the Minister back to the House. Senator Bacik may now move her amendment and speak to the Minister.

I move amendment No. 91:

In page 30, line 15, after “subsection (1)” to insert “, at least one of whom must be of each gender”.

Amendment, by leave, withdrawn.

That means amendments Nos. 91a and 91b fall as well.

No, that it is not the case.

Those amendments are in a separate grouping.

I rule on these matters.

They are, however, consequential on amendment No. 91.

There will be a separate discussion on them now. Amendments Nos. 91a and 91b, in the names of Senators McDowell, Boyhan and Craughwell, are related and may be discussed together.

If there is no amendment No. 91, how can amendments Nos. 91a and 91b be discussed?

They are being discussed here together by agreement. Is that agreed? Agreed. Senator Horkan will take over in the Chair.

I move amendment No. 91a:

In page 31, to delete lines 6 to 12.

I do not see how amendments Nos. 91a and 91b are related as they are on different topics. I would prefer if we were to discuss them separately.

Unfortunately, it has already been agreed that they will be discussed together.

The Leas-Chathaoirleach stated just now that amendments Nos. 91a and 91b were related and could be discussed together. When asked if that was agreed, Members indicated it was agreed, so that decision has been made.

I do not see how they are related.

The Senator can discuss them together, one after the other.

To be honest, I do not see how they really are related to each other.

The matter has been agreed.

Amendment No. 91a seeks to delete lines six to 12 in section 44(9). Section 44(9) states:

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

To understand what that subsection means, one has to go back to section 44(1) which refers to "the judicial office of Chief Justice, President of the Court of Appeal or President of the High Court" or where "the Minister reasonably apprehends that any of those offices will stand vacant" in the near future. Going back to section 44(9), it means in effect that when it comes to the position of Chief Justice, the President of the Court of Appeal or the President of the High Court the commission could not find anybody to recommend for such a position. That is an extraordinary proposition. The Minister has on a few occasions uncharitably accused me of thinking up strange situations and I have denied that.

It comes naturally to the Senator.

I have to say, through the Chair, that this is probably the most bizarre provision in any Bill I have ever seen. That nobody would be suitable to be made Chief Justice or President of the Court of Appeal after a full process, despite the fact that all of those courts have ordinary members, and that none of them would be suitable to be appointed to the presidency in such a court, how crazy a scenario is that? Unless the members of the commission had completely lost their marbles, it could not be that nobody would be suitable for appointment, unless there had been some kind of judicial boycott of the commission's application process.

What is even stranger about this is that having conjured up this crazy scenario, a really weird proposal is made. If the position of Chief Justice is vacant, the commission advertises for applicants to that position and then finds that there is nobody in the entire Judiciary who can be appointed as Chief Justice, what happens? This subsection says the Minister then requests the commission to seek expressions of interest on the part of eligible persons who wish to be appointed to such office at three-monthly intervals until somebody comes forward whom it can recommend. I have never heard a more bizarre provision than that there are, at three-monthly intervals, to be searches for anybody who would take the position of Chief Justice, President of the Court of Appeal or President of the High Court. I have heard of stupid provisions in Bills-----

I do not disagree with the Senator.

I will let the Minister respond in due course.

Just in case the Senator is-----

The Minister will have a chance to respond.

I will not have a chance to agree with the Senator. In fact, I may have my mind changed by the time he concludes.

Perhaps I should let the Minister agree with Senator McDowell before the Senator manages to persuade him to change his mind.

The really weird aspect of this is that we are also told that nothing in the Bill prevents the Government from making an appointment anyway. If nobody was coming forward and the Government did not receive a recommendation, the commission would continue to issue an appeal every three months to all of the Judiciary and the legal profession to make a submission that it could consider. It defies belief that the provision appears in this form in the Bill. I am very encouraged by the fact that the Minister is on my side on this one. I presume he will be happy to accept the amendment and see this subsection deleted.