Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

SECTION 44
Debate resumed on amendment No. 91a:
In page 31, to delete lines 6 to 12.
- (Senator Michael McDowell)

I welcome the Minister for Justice and Equality, Deputy Flanagan, back to the House. He was in possession on the adjournment of the debate on the last occasion. The House was discussing amendments Nos. 91a and 91b together.

I had concluded my contribution and ask respectfully that the amendment be put.

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, 10; Níl, 22.

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Norris, David.
  • O'Sullivan, Ned.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Lorraine Clifford-Lee and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
Question put: "That section 44 stand part of the Bill."
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 44 stand part of the Bill."
The Committee divided: Tá, 23; Níl, 8.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway-Walsh, Rose.
  • Conway, Martin.
  • Devine, Máire.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • 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.
  • Norris, David.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Ivana Bacik and Kevin Humphreys.
Question declared carried.
NEW SECTIONS

I move amendment No. 91b:

In page 31, between lines 18 and 19, to insert the following:

“45. (1) Nothing in this Act shall require any member of the Supreme Court, the Court of Appeal, or the High Court to apply to the Commission for consideration for appointment to any other judicial office in any of those courts (including the offices of Chief Justice, President of the Court of Appeal, or President of the High Court).

(2) A member of the Supreme Court, the Court of Appeal or the High Court may notify the Secretary to the Government in writing of his or her willingness and availability to be appointed to any vacancy for any judicial office mentioned in subsection (1).

(3) Where a judicial office mentioned in subsection (1) stands vacant or where the Minister reasonably apprehends that it will stand vacant, the Minister shall request the Commission to seek expressions of interest on the part of any other eligible persons for appointment to such office.”.

Amendment put:
The Committee divided: Tá, 9; Níl, 21.

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • McDowell, Michael.
  • Norris, David.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Devine, Máire.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Senators Gerard P Craughwell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No 91c:

In page 31, between lines 18 and 19, to insert the following:

“45. Nothing in this Chapter or Chapter 4 shall operate to prevent the Government, where it considers that it is necessary or expedient to do so by reason of urgency or for other sufficient reason, to advise the President to appoint a person to fill a vacancy in a judicial office to which section 44 applies without any request being made by the Minister to the Commission in accordance with that section.”.

This amendment is designed to fill a lacuna in the legislation, which is that there is no provision at all for a timetable to be adhered to by the commission in making its decisions. It seems to me-----

I am sorry to interrupt but are we dealing with amendment No. 91c or 91d?

I think it is amendment No. 91d.

Is it 91c or 91d, Acting Chairman?

I am sorry. I thought it was amendment No. 91d.

That is the reason I interrupted Senator McDowell.

I thank Senator Norris.

We did not make that much progress in Senator McDowell's absence.

Yes, I am sorry that progress in my absence was not as rapid as I thought.

We had good snap votes.

This amendment and the next amendment relate to timeframes. This amendment sets out that:

Nothing in this Chapter [which is chapter 3] or Chapter 4 shall operate to prevent the Government, where it considers that it is necessary or expedient to do so by reason of urgency or for other sufficient reason, to advise the President to appoint a person to fill a vacancy in a judicial office to which section 44 applies without any request being made by the Minister to the Commission in accordance with that section.

The purpose of the amendment is to provide that where the Government considers that it is necessary or expedient, by reason of urgency or for some other sufficient reason, to bypass the commission and to fill a vacancy in an office to which section 44 applies without going through the commission, it effectively gives the Government the green light in such circumstances to make such an appointment. It would defeat the whole purpose of the Act if the Government could just do it for no reason at all. It would have to be necessary or expedient to do so by reason of urgency or for sufficient reason and that is what this amendment is designed to bring about.

I strongly support this amendment, which is an important one tabled by Senator McDowell. Four words are significant here because this does not operate in any circumstances or the general run of things. The four words are, "necessary", "expedient", "urgency" and "sufficient". In order for the amendment to come into play the Government would have to consider it necessary on the one hand, or expedient, and the reason for that is the urgency or other sufficient reason. That really justifies itself in allowing the Government to advise the President to fill a vacancy in a judicial office to which section 44 applies without any request being made by the Minister to the commission in accordance with that section. The whole idea of it being without any request being made by the Minister to the commission is because it is a situation of urgency and necessity, so it is not proper to contemplate that there should be any kind of delay in the matter.

I understand where the Senator is coming from with his new amendment No. 91c. However, given that the amendment operates on the basis of the existing section 44, we have considered similar amendments and texts previously. Senators will be aware that the existing section 44 is not in keeping with my particular position on the matter. I will table amendments on Report Stage that will, if agreed, revert the direction of section 44 towards the specific procedure that we mentioned on numerous occasions in the House that will be applicable for the selection of what we have been describing as the three senior judicial posts where recommendations or the engagement on the part of the commission will neither be required or applicable. In that arrangement, the amendment as put forward by the Senators would be obsolete and, therefore, I will not accept it for that reason and reasons we discussed on previous occasions with particular reference to the three most senior positions. I am very much aware of Senator McDowell's difficulty with that, and the expanded and further developed regime he would like, but I am not inclined to expand it further or to develop it beyond the three positions.

I am not sure it is sufficient for the Minister to say he is not accepting the amendment because he has in mind some hypothetical amendment at some date in the future, perhaps on Report Stage. We have to consider what is before us, not what may be in the future. For that reason, I hope Senator McDowell will press-----

Exactly. I hope he presses it as well. In fact, I would encourage him to do so straight away.

Perhaps not quite straight away. I think we need to hear some more pearls of wisdom.

I agree with Senator Norris that I am dealing with section 44 as it currently exists, whereby there is no committee to advise the Government on the appointment of the Chief Justice, the President of the Court of Appeal or the President of the High Court. It is the commission that has to do all of that work.

I do not want to be disorderly, but there is no timeframe provided for the commission to carry out its functions. If it takes a leisurely approach and decides that, with so many applicants, it can take two or three months to come up with a shortlist to fill a particular position, it might be considered to be completely unacceptable by the Government. Let us say the commission is to be involved in the appointment of a new Chief Justice. If the position is vacant for whatever reason and it takes three months to fill it, that could be problematic. There could be circumstances in which the Government believes we need to have a Chief Justice immediately because there are important decisions pending in the Supreme Court or the Chief Justice will be faced with important decisions or work on, for example, Article 26 references and so forth. As long as section 44 vests responsibility in the commission for the selection of individuals to fill these senior positions, it is appropriate to allow the Minister to opt out of that provision in circumstances in which there is urgency.

As Senator Norris said, we have to deal with the Bill as it stands. I am interested in and supportive of the reform of section 44 but only to a point, as the Minister knows. I do not think he and I are going to see eye to eye on the ultimate make-up of the section or how it will ultimately stand. It is my understanding it was amended by a majority in Dáil Éireann. The Minister indicated on the last occasion that he would determine where the Sinn Féin Party stood on the issue and let me know. That could be relevant in determining whether a majority in this House will support the passage of the Minister's amendment. If Sinn Féin is opposed to his proposal that it go back to a committee, we could be talking about a situation where this House would not adopt the Minister's reformulation of section 44 on Committee Stage. I am interested in knowing if the Minister has done his homework and found out where Sinn Féin stands on the subject of the amendment Dáil Éireann made to section 44 against his wishes.

If it was on Committee Stage, my assumption is that Sinn Féin did not vote with the Government on the occasion. There is a Senator here from that party who might be able to confirm that, but that is my recollection. I ask Senators to accept my bona fides on my inability to speak on behalf of any other party, particularly Sinn Féin, on where it might stand on the Senator's amendment or any of my future amendments. I am simply not in a position to say.

Obviously, it would be wrong to ask the Minister to predict what Sinn Féin will do. Senator Warfield is present, but he may be keeping his cards close to his chest on this issue. If it is the case that Sinn Féin disapproves of the small committee operating under section 44 and sticks to the position that it should be the commission in its entirety, it is quite possible that this House will not pass the Minister's proposed amendment, depending on how reasonable it is and how other Members, apart from those in Sinn Féin, view it. In that context, it would be an advantage to know the substance of the Minister's proposed amendment to section 44 as soon as he and the Government agree on the kind of amendment to be tabled. In the meantime, we are dealing section 44 as it stands. We are dealing with the commission in having a role in the appointment of the Chief Justice, a proposition to which I am utterly opposed. In the circumstances, the amendment should be made.

Senator McDowell is being entirely reasonable when he says he would like to see the disposition of the Government as far as amendments are concerned at the earliest opportunity. I acknowledge this and will be happy to accommodate him.

On the more general issue of the filling of vacancies, particularly the three most senior positions, I do not recall in recent times, if ever, a situation where there was a delay or where there was not, on the part of Government, anything but a stated intention to proceed with haste once a vacancy arose. The most recent appointments were carried out in an entirely satisfactory manner. It is architecture along those lines of which I would be thinking in tabling an appropriate amendment on Report Stage, but I would need to secure Government approval. Of course, I would ultimately need the approval of a majority in both Houses.

It has been suggested to me there is legislation pending for the appointment of further judges to the Court of Appeal. It has also been suggested to me, disturbingly, that such legislation has effectively been linked with the moving forward of the Judicial Appointments Commission Bill. That may not be the case, but I would be very disappointed if one Bill were to be taken hostage by the other, so to speak.

I would share Senator McDowell's disappointment. I am very keen, however, having received Government approval, to proceed with the drafting of a Bill to facilitate the appointment of six judges to the Court of Appeal. I do not know the veracity or otherwise of the Law Library talk, to which Senator McDowell refers, but I would share his disappointment if there was any undue relationship drawn between any new Bill and this legislation.

I very much hope the Minister's view is representative of the view of the Government in its entirety on the issue.

Not quite; there may be one dissenting voice.

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, 14; Níl, 18.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Leyden, Terry.
  • Marshall, Ian.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Devine, Máire.
  • Gavan, Paul.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Michael McDowell and David Norris; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I welcome the Minister, Deputy Flanagan, back to the House. We are now dealing with amendment No. 91d. Amendments Nos. 91d, 91e and 91f are related and may be discussed together, by agreement. Is that agreed?

On the taking of which amendments together are we agreeing?

Amendments Nos. 91d, 91e and 91f are related.

No, they deal with different subjects. I am not agreeable to that proposal.

The Senator is not agreeable to that. Therefore, they will be discussed separately. Is that agreed?

It is not agreed.

It is not votable. If it is agreeable to the House, they can be discussed together, but if not, we will deal with them separately. Therefore, amendment No. 91d is now being dealt with.

The proposal that they be discussed together was not agreed and that is the crucial point.

I should explain the reason they should be discussed separately. This amendment and the previous one are probably more cognate than this amendment and the succeeding one, as this amendment and the previous one deal with time limits and the like and vacancies being left open, whereas the next amendment is quite different.

Will the Senator move the amendment?

I move amendment No. 91d:

In page 31, between lines 20 and 21, to insert the following:

“45. (1) The Government may prescribe a time period within which the Commission may make its recommendation in respect of any particular vacancy or apprehended vacancy and the Minister shall inform the Commission of any such time period when requesting the Commission to make any recommendation in respect of such vacancy.

(2) The Commission shall make any recommendation within the time period prescribed by the Government pursuant to subsection (1).”.

The Senator should read it out in order that we will all know what it is about.

For the benefit of Senator Norris, if he does not have the list of amendments, this amendment proposes to insert a new subsection which states: "The Government may prescribe a time period within which the Commission may make its recommendation in respect of any particular vacancy or apprehended vacancy and the Minister shall inform the Commission of any such time period when requesting the Commission to make any recommendation in respect of such vacancy." It also proposes a second subsection which states: "The Commission shall make any recommendation within the time prescribed by the Government pursuant to subsection (1).".

Since it is an executive function which the Government is carrying out under the Constitution in advising the President to fill a vacancy, this amendment seeks to give the Government some control over the length of time the commission may or may not take to fill any particular vacancy. As I was about to say when I mistook which amendment I was speaking to earlier, there is a lacuna in the Bill, as currently proposed, namely, that no time limits are provided for the commission to carry out its function in respect of any appointment. The purpose of this amendment is to give the Government - it is the Government and not the Minister which has a right under the Constitution to advise the President to fill an appointment - the right to say to the commission that it may have, say, two months, three months, or whatever period is prescribed in which to submit a shortlist to it. Effectively, the commission would get riding orders as to the time within which it is expected to discharge its functions.

In the absence of an amendment of this kind, it seems there inevitably will be delays. People work better to deadlines. If the commission is told it has eight weeks in which to carry out its functions in respect of any particular appointment, if the Government so prescribes, that will concentrate minds in the commission and get it to go through whatever procedures are required in a timely fashion to meet the Government's deadline. Somebody might say this is just a means whereby the Government could prescribe such a short time period within which the commission might make its recommendation that it would effectively steamroll the commission into making very rapid appointments, but that is not what is proposed in this amendment.

I am of the view, I presume most Senators would agree with me on this, that the Government is presumed to act in good faith but it is not the case that we can assume the commission will see the filling of vacancies with the same degree of urgency as the Government might do on any particular occasion. Since it is a governmental function to advise the President under the Constitution, since these shortlists are purely advisory and do not bind the Government in any way under the Constitution and since the Bill preserves the right of the Government to do its own thing, and the Bill, as it is currently constituted, effectively requires the Government to consider first the shortlist submitted by the commission in any particular cases, it seems that if the Government has a residual right to make its own decision in respect of appointments, it should also have a correlative right to say to the commission that if it is going to give the Government a shortlist, it should do so by a certain date and not consider it has three months, three and half months or longer to come up with it, as the Government wants to fill whatever position it is within a shorter timeframe. In my view, the absence of any mechanism whereby some outer time limits can be imposed on the commission is a fault in the legislation as is currently stands and I ask the House to adopt this amendment and vote for it because it will be a considerable improvement on the Act and a considerable disincentive to unnecessary delay.

I understand the reasoning behind Senator McDowell's amendment and it is important the Government should have the possibility of prescribing a time limit. However, I believe there is something wrong with the Senator's amendment. The word "may" occurs twice in the amendment. It states: "The Government may prescribe a time period [that is all right] within which the Commission may make its recommendation". I believe the latter use of the word "may" should be replaced with the word "shall". Otherwise there is no question of prescription. The Government is not prescribing anything. It is saying that if the commission feels like it on a wet Thursday afternoon it might do this. Senator McDowell said that this amendment would give the Government control but it does not really because of the second occurrence of the word "may" in it. The commission may make its recommendation but it might very well not. I believe that the second occurrence of the word "may" in the amendment should be changed to "shall" but, otherwise, it is a perfectly sensible amendment and would lead to greater efficiency in the administration of this process.

I am grateful to the Senator for his careful analysis of what he said is a deficiency of my drafting-----

Do I hear a "but" coming?

Yes, but may I make two points which may encourage the Senator to be more supportive of the amendment in its current form? First, I ask him to look at the terms of subsection (2) of the proposed section, which states: "The Commission shall make any recommendation within the time period prescribed by the Government pursuant to subsection (1)." It does not leave it open to the commission, on a discretionary basis, to decide whether to comply. If it does not do so, that is that, so to speak. I defer to the Senator being a great Joycean scholar and an authority on the English language, but, on my own behalf as draftsman of this amendment, the reason the word "may" is used twice in the amendment is this-----

The Senator is queen of the "mays".

Yes, the queen of the "may". The reason I have to do that is that the commission is not obliged to make a recommendation if it does not consider anybody as suitable. Therefore, it could advise the Government that in a particular case it is not in a position to make a recommendation. It is not automatic there will always be a recommendation and the Bill deals with a situation where the commission is unable to make a recommendation and what happens as a consequence of that.

No doubt all Members are all speaking through the Chair.

Of course; he is looking at me but he is speaking through the Chair.

While thanking Senator Norris for his scrupulous examination of my amendment, it is at least defensible-----

-----and may actually attract his support in its present form.

I support Senator McDowell's amendment. The Acting Chairman has been involved in boards of management of schools and the like and he is aware of the difficulty that is experienced at a time when a vacancy arises within an organisation. Here we are talking about a public appointment to a senior judicial position. One sets a date by which the recommendation has to be brought before the Government. We are talking about a commission that consists not of just of members of the Judiciary but members of the public. One must try to bring those people together in order to agree, for example, the advertisement, in the first instance. Once the advertisement has been agreed and published, one has to go through the short-listing period. We already have seen how that will be carried out. Once the short-listing is completed, one then has to get the board together again to carry out the interviews, before one ever arrives at the point of making a recommendation. That can be an extremely difficult task, depending on the time of the year in which it falls and depending on the commitment of senior members of the Judiciary who are part of the commission. They may not be able to appear at a particular time because of commitments to the courts or whatever. I agree that the way to focus minds is to put a time limit there. One sets a date by which it must be brought before the Government.

While I understand Senator Norris's two "mays", the point made by Senator McDowell that subsection 2, with the "shall make a recommendation" trumps the second "may" and takes care of that. To allow a situation to develop where we have an open-ended laissez-faire-type approach, that is, where one fills the vacancy when one is ready, is simply not good enough.

We might also find ourselves in a situation in the event - one would not like to see it happen - of the untimely death of a judge, in which there was an urgent requirement to fill a post. From that point of view, the Government must be in a position to put time limits to ensure the commission carries out its work in a timely way for the needs of the State and the Judiciary. This is a simple change to the Bill that gives the sort of clarity that Senator McDowell is talking about. It removes that lacuna to which he adverted and it would give the Government a sense of reassurance that when a vacancy arises, it will be filled by a certain time. For that reason we should ask the Minister, who has been more than willing to accept amendments in the past, to perhaps accept this one too.

I will not be accepting this amendment as I detect some discord among the-----

There is no discord.

----- Opposition, which at best will lead to uncertainty. It will be, of course, expected of the new commission to operate in a timely manner and to fill the vacancies as required, which has been the position to date. That is certainly the expectation that will be incumbent on members of the commission. I do not think that there is need for such deadlines. I agree there is an element of discord here.

There is not, that is nonsense from the Minister. He is talking through his hat.

I am not accepting the amendment.

I compliment the Minister on his sharp observation of what he perceives as some dispute between my two colleagues.

There is not, as I completely accepted Senator McDowell's explanation and the Minister knows that. He is being mischievous.

Allow Senator Craughwell to continue without interruption, please. Senator Norris can come in after Senator Craughwell.

Senator Norris is making his opinions known and there is no disagreement between my two colleagues. We are back to the same thing here which worries me. When I hear a Minister saying that he is confident something will happen or that he is fairly sure that at the end of the day, people will do this, that or the other, I note that unless it is written down in black and white, what one is confident about today means absolutely nothing. In ten or 20 years' time, when people are reviewing this Bill and we find a judicial appointment has been left open for six months because they did not get their act together, nobody is going to turn round and say that the Minister was sure at the time that we would act appropriately or would fill the job at a particular time. There is only one way to have certainty and that is to have in black and white, and everybody knows where they stand from day one. The applicants for the job will know that there is a finite day. Everybody will be aware of the fact that a vacancy has arisen and that it will be filled by a particular day. This sort of come-day, go-day, attitude to the effect that the Minister was sure at the time is a little too lax for me and opens up all sorts of possibilities. I accept the Minster's bona fides; I am just not so sure that those who will come after us will be as diligent or as careful as he is. I ask the Minister to reconsider.

I thought in my innocence that I persuaded Senator Norris of the merits of my amendment.

The Senator has.

The Minister seems to be in doubt about this.

The Minister need not be.

Senator Norris can come back in a minute.

The Acting Chairman should say the same to the Minister.

This will probably require-----

The Minister knows better than Senator Norris that he can come back in.

-----Senator Norris to make a formal statement of this position and he may require a reasonable audience to make that statement since it is an important issue but I am not suggesting anything to him. In any event-----

The only way to prove Senator Norris's bona fides is by a walk-through vote.

We have not got there yet, the Minister should stop trying to rush things.

Allow Senator McDowell to continue, Senator Norris, without interruption.

I was going to say the Minister has stated he is confident that various things will happen. I am not confident for the following reason. It is not that I doubt in any way the bona fides of the members of the commission, if it is ever established or if it ever comes into operation. Equally, it is not that I doubt that they will appreciate there must be some degree of urgency about their work and they are not free to take lengthy periods of months to do their work in a leisurely fashion. I am not suggesting they will behave in that way. My point, which the Minister should take on board, is that the existing Judicial Appointments Advisory Board, JAAB, to which the Minster adverted, operates only where the Government is not going to appoint a judge. Its current workload, for that reason, is much more limited than the workload of the judicial appointments commission is likely to be. All appointments, subject to whatever happens to section 44, will be commission-based appointments if this Bill goes through. All appointments, bearing in mind the statutory duty that is placed on the Minister in respect of vacancies and anticipated vacancies, will involve the commission deploying its procedures.

There are two points that arise out of that. The workload of this commission is going to be vastly increased over the present workload of the Judicial Appointments Advisory Board. When I was in the Minister's position, the meetings of the Judicial Appointments Advisory Board were relatively short.

The members had the various applicants' paperwork, references and the like before them and they did their work in a timely fashion. As I now understand it, this legislation anticipates, although it does not 100% ensure, that every applicant will at least be likely to be interviewed and that the results of the interviews in respect of the successful applications will go to the Government. Unless these interviews are exiguous or pro forma, which would be pointless, they will have to be more or less standardised for all would-be appointees. Following the general pattern of public service appointments, the same kind of questions have to be put to everyone. One person cannot be subjected to a radically different form of interview from that of another person. Issues cannot be raised with one class of would-be applicants that are not raised with everybody else. Applicants cannot be asked to prove their suitability to a different standard compared with some other category of people. These interviews are going to be lengthy and complex things.

There are some points which should be borne in mind. First, the workload of the judicial appointments commission will increase very significantly compared with that of the JAAB, by reason of the extension of its functions to existing members of the Judiciary. Second, the procedures which are to be laid out in the Act, to which we have not yet come, will be a good deal more formalised and are likely to always or nearly always entail an interview process. Third, if the first two points are combined, it is very likely that the period between the Minister requesting the JAAB to make a recommendation in respect of an office and a person being appointed will be lengthened quite significantly when, in the future, the Minister asks the commission to carry out the functions envisaged in this Act. It is not really legitimate to say that the present system gives us a guide as to what will happen in future as regards delay. The present system will be virtually no guide as to what time will be taken in the future.

Bearing that in mind, we then have to face up to the proposition that some form of outer time limit will have to be prescribed by somebody. The question we have to ask ourselves in that regard is who is the legitimate person to set this outer time limit? Should it be the commission itself or should it be some other body? The purpose of this amendment is not to vest that function in the Minister, but to vest it in the Government. The entire Government would fix the outer time limit for a decision on any particular case. The entire Government would do so, bearing in mind that it has a residual right to advise the President to appoint somebody completely outside the shortlist sent forward by the commission to the Government. This right cannot be taken away and this Bill, if enacted, will not do so. Bearing those things in mind, it seems the Government is the appropriate body to make the decision as to an outer time limit. There must be an outer time limit.

It is not by any means unthinkable that the normal timeframe for submitting a recommendation will be of the order of three or four months compared with the present situation with the JAAB, which I presume carries out its functions within six weeks to two months. I hope the Minister will take that on board. It is not unreasonable to think that, because of the increased workload, the increased complexity of the processes involved, and the interviews, we will be talking about three or four months. I am not being alarmist. That is my view of what is quite likely to happen.

If there is slippage due to the pressure of work in filling District Court positions or if some Minister does what the present Minister has indicated he is minded to do and says that six extra judges will be appointed to a particular court, whether the Circuit Court, District Court or High Court, the increased workload for the commission could be enormous. Filling a raft of vacancies such as would arise on foot of such a legislative change could put the commission into a kind of crisis mode as regards its other work. There is a very sound argument to be made for the fixing of outer time limits. I cannot think of any body more suited to fix such limits than the Government and I cannot think of any better way of doing this than that set out in amendment No. 91d. I will make way for Senator Norris to make his position clear in this regard.

I have been asked to make a statement because the Minister mischievously suggests he believes there is disagreement between Senator McDowell and myself. There was initially. I raised a question but Senator McDowell satisfactorily answered that question. I believe it would be better if the second "may" was a "shall" but, from the point of view of legality, I am quite convinced by Senator McDowell's explanation and I reassure the Minister that there is no rift in the lute as far as this side of the argument is concerned. I completely accept Senator McDowell's explanation of the matter. He has put down this amendment in good faith. It is a good amendment. It is important that the Government should prescribe a time period. I do not believe it is at all too onerous to expect the commission to make a recommendation within such a time period, not a bit. I am sure the Minister will confirm that he has now heard my statement and that he accepts there is no disagreement among us.

Something I had not considered when I spoke before Senator McDowell is the onerous task that arises when a vacancy is to be filled. The Senator made the point that the questions would have to be the same for all applicants. Surely the marking scheme will then have to be the same for all applicants. A set of questions which would be deemed fair to all applicants will not easily be put together. Some applicants will come from the criminal side-----

-----some will come from the business side-----

Those from the criminal classes are to be appointed to the Judiciary?

Senator Craughwell without interruption.

This is a revolutionary suggestion.

We will hear Senator Craughwell without interruption.

The Senator has to be interrupted when he is suggesting appointing criminals to the Judiciary. My God! What is this country coming to?

The Labour Court has for years been bogged down in appeals over public service appointments in respect of which the same questions were not asked, the same marking schemes did not apply, or the marking scheme was not robust when it came under scrutiny.

I will ask the Senator to report progress. It is 7 p.m.

I am only getting warmed up.

The Senator will have three hours tomorrow to warm up.

Progress reported; Committee to sit again.

When is it proposed to sit again?

Ag 10.30 a.m. maidin amárach.

The Seanad adjourned at 7 p.m. until 10.30 a.m. on Wednesday, 27 February 2019.