Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

Debate resumed on amendment No. 99c:
In page 35, to delete lines 1 to 4.
(Senator Michael McDowell)

Senator McDowell is in possession. While the Senator is gathering his thoughts, I welcome the Minister back to the House.

I am not supporting the amendment and I ask that it be put.

I propose we put the amendment immediately.

The Senator can propose all he likes.

Colleagues, please. Senator McDowell is in possession.

This amendment proposes to delete lines one to four on page 35. We discussed this on the previous occasion.

I have to advise the Acting Chairman that the substance of the amendment was discussed hours ago.

I am following the rules of the House. When the debate was adjourned, Senator McDowell was in possession. He has the right to resume possession if he wishes to do so and has anything further to add.

I have said everything I needed to have said.

I put it to the Acting Chairman that the Senator is not resuming but recommencing.

That is up to the Chair to interpret.

I invite the Chair to interpret it in accordance with the Standing Orders.

Is the House quorate?

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

I have said everything I have to say about this amendment.

Amendment put:
The Committee divided: Tá, 11; Níl, 16.

  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Daly, Paul.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Marshall, Ian.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • Ó Ríordáin, Aodhán.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Richmond, Neale.
Tellers: Tá, Deputies David Norris and Michael McDowell; Níl, Deputies Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

Amendments Nos. 100 and 103 are related and may be discussed together, by agreement.

I would prefer if the two amendments were discussed separately.

Amendment No. 100 is in the name of Senator Ruane. As the Senator is not in the House, the amendment cannot be moved.

Amendment No. 100 not moved.

Amendment No. 100a is on the sixth additional list of amendments, dated 3 April 2019. I invite Senator McDowell to move the amendment.

On a point of order, will the Acting Chairman clarify if it is possible for amendment No. 100a to be moved when amendment No. 100 was not moved?

Amendments Nos. 100 and 100a are not related.

I assumed that amendment No. 100a must be related to amendment No. 100.

Amendments Nos. 100 and 103 are related and might have been discussed together were Senator Ruane in the House to move the former.

With respect, I question the Acting Chairman's advice to the Seanad that amendment No. 100a is not related to amendment No. 100.

Even if it were related, amendment No. 100a can still be moved because it is tabled by another Senator.

The two amendments must be related. With the application of a modicum of common sense, one must ask how an amendment numbered 100a can have no relation to an amendment numbered 100.

The numbering indicates the physical place of amendments in accordance with the text of the Bill.

The physical place of amendment No. 100 derives from its direct relation to amendment No. 100. The two must be related.

Amendment No. 100a was tabled by Senators McDowell, Boyhan and Craughwell. I am allowing it.

I propose that the Acting Chairman take time to reflect if he needs to do so.

Some people might need a ten-minute recess.

We can adjourn for an hour if necessary.

That is a good idea.

As Acting Chairman, I am merely carrying out the instructions of the Cathaoirleach, who makes the decisions in these matters. If people wish to play games, they can go ahead and do so. I will play along, if necessary.

We have had game playing here for more than a year.

I invite Senator McDowell to move amendment No. 100a.

I move amendment No. 100a:

In page 35, line 12, after "office" to insert the following:

"(including informing applicants as to whether or not they have been selected by the Commission for recommendation to the Government)".

Amendments Nos. 100 and 103 are related and I would have had no objection to their being discussed together, had they been moved. As I understand it, however, amendment No. 100a is positioned as it is because, in accordance with the text of the Bill, it would be wrong to put it after amendment No. 101.

It is a matter of sequencing.

The content of the two amendments is not related. I wish to make an important point before we proceed.

It is my earnest hope and intention that Committee Stage will be completed next week. I say that in case anybody is under any illusion.

Does Senator Norris share that hope and intention?

I was under an illusion, but it has been untimely ripped from my eyes.

The amendment simply aims to make it clear that the reference to standards being observed by the commission would include informing applicants whether they had been selected by it for recommendation to the Government. That is for what it would provide.

This seems to be a perfectly reasonable amendment. Good standards of communication should include letting people who have applied for a job know whether they have been selected, rather than leaving them in limbo. I have no difficulty whatsoever in supporting the amendment. How is that for brevity?

Is Senator Conway indicating that he wishes to speak?

I never lifted my hand.

The Senator was just squirming. It is a habit.

Will the Senator, please, clarify that comment?

I am not accepting-----

What does Senator Norris mean by "squirming"?

While I appreciate the intention of the amendment, I am not sure who determined that it should be listed as amendment No. 100a as it bears no relationship to or has no connection with amendment No. 100. I still find the process extremely difficult to understand. I find many of the Standing Orders of the Seanad difficult to comprehend. I will not accept the amendment for drafting reasons. The opening words in section 53(5) make it clear that the procedures committee must have regard to the matters set out in section 53(5)(h) and all of the subsections to section 53(5). I refer to the procedures committee as distinct from the judicial appointments commission. I am not sure it makes sense to elaborate on something that will ultimately be a function of the commission by imposing a specific obligation on the procedures committee to have regard to this issue in the preparation of a statement setting out the selection procedure. For these drafting reasons, I am declining to accept the amendment.

I will not push the matter any further.

Amendment, by leave, withdrawn.

I move amendment No. 101:

In page 35, line 19, after “shall” to insert “ensure it is compliant with section 7(1) and shall also”.

This provision seeks to insert the words “ensure it is compliant with section 7(1) and shall also” after line 19 on page 35. The purpose of the amendment is to ensure the overriding requirement that appointments be made on merit would not be forgotten in the drafting of the procedure committee's statement of aptitude in favour of the other criteria mentioned such as the need for gender equality and recognition of social diversity. It seems that in mentioning these issues and not repeating the principle of appointment on merit there is a danger that the focus on appointments being made on merit may be diluted or ignored.

I merely wish to refer to what I said about amendment No. 99 which, if I were to have a stab at remembering, I would say we discussed some weeks ago. I did not accept that amendment and I am not accepting No. 101 because of its similarity to it. I am satisfied that in the circumstances it is not necessary.

I record my support for Senator McDowell in this matter. The amendment would ensure the statement to be relied on by the commission in its deliberations in appointing an applicant would fulfil the overall objectives set out in section 7(1) which states judicial appointments should be made based on merit. The whole idea of making appointments on merit is significant and important. For that reason, I support Senator McDowell's amendment.

I should add that the purpose of the amendment is to ensure that when the procedures committee is drawing up criteria for inclusion in the statement, it would repeat and make it very clear that the overall principle was one of making appointments on merit and that the requirements in respect of gender equality and to reflect social diversity were secondary to this principle. I want the Bill to state that when they come into conflict, making appointments on merit will prevail.

Amendment put:
The Committee divided: Tá, 8; Níl, 20.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Horkan, Gerry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • Marshall, Ian.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Ó Donnghaile, Niall.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Richmond, Neale.
Tellers: Tá, Deputies Lorraine Clifford-Lee and Michael McDowell; Níl, Deputies Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I move amendment No. 101a:

In page 35, lines 38 and 39, to delete “recommendations made under section 56” and substitute “changes recommended under section 56(4)(a)”.

Section 53(6)(d) states:

In the preparation of the statement referred to in subsection (1)(b), the Procedures Committee shall, amongst other matters, have regard to

... (d) in the case of a statement referred to in subsection (1)(b) that is not the first such statement ..., any recommendations made under section 56.

Section 56 deals with several matters which are irrelevant to the preparation of a statement, however. For instance, section 56(4) states:

The Procedures Committee shall, following a review under subsection (1), make a report to the Commission of its findings including any recommendations relating to the implementation of this Act including, but not limited to, recommendations relating to—

(a) the published statement,

(b) procedures and processes for developing and strengthening diversity among candidates for judicial appointment,

(c) changes to the qualification requirements for appointment to judicial office and the requirements for selection and recommendation of persons for such appointment,

(d) ensuring the effectiveness of the administrative support provided by the Office to the Commission, and

(e) the functions assigned to the Commission.

Section 56(4)(b) to (e), inclusive, are matters which would not be relevant to the publication of a statement. If one goes back to section 53(6), a statement dealing with all recommendations under section 56 should be confined to the matters referred to section 56(4)(a).

Senator McDowell’s amendment makes the whole matter much more clear and simple. It is like a drafting amendment. It confines the matter to the published statement. That makes the whole matter much more obvious and clear. I see the Minister is nodding.

I am nodding because I want to take up exactly the point that has been raised by Senator Norris, which is the reason I cannot accept the amendment. It is too confining. In other words, the effect of the amendment would be such that the only consideration that can be given is on the matter of the published statement. It is too confining in that regard because there may well be other issues arising in recommendations which may be applicable. For example, section 56(4)(c) concerns the requirements for selection and recommendation of persons that impinge directly on skills and attributes.

I am not inclined to accept this amendment because it is too confining. That appears to be what Senator Norris wants, however.

Section 56(4) provides that “The Procedures Committee shall, following a review under subsection (1), make a report to the Commission of its findings including any recommendations relating to the implementation of this Act ... but not limited to, recommendations relating to ... the published statement”. This is the procedures committee report only to the commission. It is not a reference to matters that have been agreed by the commission and included in a statement.

If one combines section 53(6)(d) with section 56(4)(a) to (e), inclusive, one is looking at a requirement for the procedures committee to have regard to recommendations that it may have made but which may not have been accepted by the commission. That is the point I am making. Will the Minister look at this again? If the committee is required to take account of its own recommendations, that is one matter. However, its recommendations may not be agreed by the commission in total. That is the point at which I am driving. There are issues which arise under section 56(4)(b) to (e), inclusive, which might or might not be agreed to by the commission. Section 53(6)(d) requires the commission to have regard to its own recommendations, whether or not they have been accepted.

I am happy to accommodate the Senator by way of having a further look at it. My concern is that the effect of the amendment, as drafted, would confine the process to looking only at the recommendation made under section 56(4)(a), namely, the published statement only. It could well have the effect of other recommendations not being considered. I do not believe that is what Senator McDowell wants to do, although it appears to be what Senator Norris wants to do.

I accept Senator McDowell’s point that the sections in question do not appear to be straightforward. I will have the Office of the Parliamentary Counsel examine it.

I have not intervened on this provision until now. When listening to the discussion, it struck me there is somewhat of an anomaly in section 56(4) itself. While I accept we have not yet reached that section, it was highlighted by Senator McDowell’s amendment, which refers to changes recommended under section 56(4)(a).

I am puzzled as to why the wording of section 56(4) lists a number of items in paragraphs (a), (b), (c), (d) and (e) but only in paragraph (c) are changes to the qualification requirements for appointment to judicial office and the requirements for the selection and recommendation of persons for appointment set out. Nothing else refers to changes which strikes me as odd, given that it seems that, by their nature, the recommendations might suggest there be changes to some of the other procedures. Perhaps I have missed something in it, but language of change is used in Senator McDowell's proposed amendment. It may be that it would limit unduly the effect of section 53(6)(d), but certainly the word "changes" is only used in section 56(4)(c), not 56(4)(a), 56(4)(b), 56(4)(d) and 56(4)(e). That seems odd, given that recommendations could relate to changes that should be made. I do not know whether the Minister wishes to comment now on this issue or if we can come back to it when we are debating section 56, but I would have thought it unnecessary to include a reference to changes in section 56(4). Presumably, recommendations could relate to changes to the qualification requirements in any case without the need to refer specifically to changes, but there may be a particular reason I missed changes are referred to section 56(4)(c). However, it is not apparent.

The Minister thinks the amendment would be too confining and confine it to the published statement only, but I am not sure that is true because section 56(4) contains the statement "the Procedures Committee shall, following a review under subsection (1), make a report to the Commission of its findings including any recommendations relating to the implementation of this Act including, but not limited to". I do not see, therefore, how it could be as disastrously confining as the Minister suggests, particularly taking into account the phrase "but not limited to".

I do not wish to prolong the debate, but we seem to have shifted from section 53 to section 56. I indicated to Senator McDowell that I would be happy to go back to the Office of the Parliamentary Counsel with a view to achieving the balance sought in the amendment, but it might not be a direct consequence of it. We can deal with section 56 if we get to it.

I will explain why we tabled the amendment. If one looks at section 56, one will see that it requires the procedures committee to monitor and review implementation of the Bill. It states the review under subsection (1) shall be conducted two years after commencement of the section and thereafter from time to time as the commission so requests. One of the things on which the procedures committee will be required to report - I think section 56(4) should contain the word "may" rather than "shall" - is its findings, including any recommendation related to implementation of the Bill, including but not limited to recommendations regarding the published statement, procedures and processes for developing and strengthening diversity among candidates for judicial appointment and changes to the qualification requirements for appointment to judicial office and the requirements for the selection and recommendation of persons for such appointment, ensuring the effectiveness of the administrative support provided by the office for the commission and the functions assigned to the commission. Paragraph (c) refers to changes to the qualification requirements for appointment to judicial office. What could happen is that the procedures committee might make a recommendation that instead of ten years' practice, it should be eight or 12 years. Let us suppose it makes such a recommendation. One would then go back to section 53(6)(d), which requires the procedures committee in the second or subsequent statements to have regard to recommendations it has made related, for example, to the eligibility of persons to be appointed to judicial office. That simply does not make sense because the Oireachtas either will or will not have made such changes. To require the procedures committee under section 53(6)(d) to have regard to its own recommendations in a process that, when one looks at the section, does not require those recommendations to be accepted or even implemented by statute seems wrong. That is what I am driving at. It seems to be a little premature and is unfortunately drafted. I know that the Office of the Parliamentary Counsel has a difficult job to do and I am not being niggly in my criticism, but if one puts section 53(6)(d) with section 56(4)(a), one will find oneself requiring the commission to have regard to things that may not even be law at the time it will come to make its second or subsequent statements. That is why I think a review is needed.

Amendment put:
The Committee divided: Tá, 7; Níl, 15.

  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Horkan, Gerry.
  • McDowell, Michael.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Richmond, Neale.
Tellers: Tá, Deputies Michael McDowell and David Norris; Níl, Deputies Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

I ask Members to resume their seats or to leave the Chamber if they are not staying. I would like some order, please.

Amendment No. 102 is in the names of Senators McDowell, Boyhan and Craughwell. Amendments Nos. 102, 104, 105 and 109 are related and may be discussed together by agreement. Is that agreed? Agreed.

Could the numbers of those amendment be repeated?

Amendments Nos. 102, 104, 105 and 109.

They are related. I accept that.

I move amendment No. 102:

In page 35, between lines 39 and 40, to insert the following:

"(7) (a) Lay members of the Procedures Committee shall not take part in the preparation of a statement referred to in subsection (1)(b).

(b) Lay members of the Procedures Committee shall not take part in the preparation of that part of the statement referred to in subsection (1)(a) which concerns—

(i) knowledge of the law,

(ii) skills and competence in the interpretation and application of the law, or

(iii) ability to exercise functions as holders of judicial office.".

This amendment is intended to provide that, in respect of certain functions of the procedures committee, the requirement that the committee be composed of a majority of lay persons, which is provided for earlier in the Bill, should not mean that certain matters be decided by a lay majority. Those functions are effectively those mentioned in section 7(1)(b). We are dealing with lines 39 and 40.

These amendments are designed to make it clear that lay members of the procedures committee should not be the people who determine issues regarding knowledge of the law, skills and competence in the interpretation and application of the law and the ability to exercise functions as holders of judicial office. I only came to appreciate one of the problems with the Bill on a close reading as I came to the end of it. The commission itself will comprise 16 or 17 people but there will then be a procedures committee that will comprise a smaller group and seems to be intended by the draftsman to be the engine house of the commission. When it comes to doing reviews, the procedures committee will carry them out and do the drafting. When it comes to statements of aptitudes or procedures, the procedures committee will do them. In a sense, there is a kind of executive committee and the procedures committee will be an executive committee of the commission. I am conscious that, if that is the case, the members of the professional bodies, the Law Society and Bar Council, should be guaranteed a position on the procedures committee. There is another amendment tabled in our names to achieve that. It would be strange if the two professions in law should be excluded from the engine house of the commission itself. That is another amendment at which we will arrive later.

The Bill is crafted so that lay members must be in a majority even on the procedures committee. These amendments are designed to ensure that the lay members of the committee should not be in the majority for drafting criteria that relate to the knowledge of the law and ability to conduct proceedings in a manner that ensures the skills and competence in the interpretation and application of the law or the ability to exercise functions as holders of judicial office. In essence, these are areas in which the sole criterion for appointment under this legislation, which I regret, is that they are people who, almost by definition, are less knowledgeable about the law than anybody else on the commission. It is a strange construct of the commission that the executive committee, when it carries out drafting of criteria relating to knowledge of the law and the like, should be composed as to its majority by people who are inexpert in that area. As I mentioned, there is not even a guarantee. Say there are nine people on the procedures committee and a majority has to be lay, that is five committee members. That means a total of four people on this committee who are lawyers, and there is no guarantee that members of either the solicitors' profession or the Bar Council will be among those four lawyers. The composition of the procedures committee is a matter for the commission itself and it is a matter for determination by a majority of the commission.

I am not happy with the architecture of the procedures committee but that was dealt with earlier in the debate. We are now stuck with the position that a committee within the commission, the procedures committee, will effectively do most of the heavy lifting and the other members will, in many respects, just be in a "Yea" or "Nay" role to them as regards the policy decisions of the commission. We are stuck with the proposition that, because there are nine members on the procedures committee, only four can be lawyers. It is wrong and a mistake that only four people out of nine should be people who are conversant with, and know something about, the law when they are dealing with criteria for appointments that deal with the law. That is the gravamen of what this amendment is designed to remedy.

We apparently want to report significant progress on this so I will be brief. The Minister has enthusiastically drawn our attention to legislation in other jurisdictions, including Scotland, and this amendment mirrors exactly the Scottish legislation. The intention is to ensure that lay members are not assessing part of the formal statement that would govern how to consider an applicant on criteria that those lay members have no capacity, qualifications, experience or anything else to assess. It is a bit silly. I am sure the Minister will be pleased that, in this, we are following the Scottish example.

This is the Scottish amendment.

Yes, the Scottish amendment.

These are important amendments, particularly amendment No. 102, which seeks to ensure that the lay members of the procedures committee are, in effect, barred from any participation in the preparation of a statement or of a statement of requisite skills and attributes for a particular judicial office. It strikes at the heart of the Bill because the repeated opposition from Senators McDowell and Norris relates to lay, non-lawyer, non-judicial participation. I oppose this amendment because it seriously weakens the participation in the process of anybody other than in-house lawyers. I have a difficulty with that because what Senator McDowell is seeking to do is designed specifically to silence a non-lawyer voice and mute the lay members before the process is even under way. He referred to the architecture and he is correct because what he is now doing is, at design stage, constructing a process that will, in effect, silence any voice that is not that of an in-house lawyer. The barring of lay members from participating in the preparation of the statement of requisite skills and attributes is, in essence, the same opposition that we have heard in the debate for the past year and a quarter.

I am opposed to this amendment, as I was opposed to similar previous amendments, on the basis that any attempt not only to circumscribe the engagement of lay members but to mute them altogether runs against the essential thread of the legislation, as Senator McDowell knows well.

With respect to the Minister, that is something of an exaggeration on his part. One of the functions of the procedures committee is a drafting function, the output of which will be sent to the commission in its entirety. It is not a question of anybody being excluded from making a decision on the matter in question. I am concerned with the question of who will draft matters to do with experience of the law and the like. Under section 10 of the Bill, as amended, the commission will consist of 16 members, if I recall correctly. I am not sure what number we eventually arrived at, but it is certainly more than 13, as originally set out in the section. Section 16(2) provides that the procedures committee "shall consist of 9 members of the Commission, the majority of whom shall be lay members and the chairperson of that Committee shall be such one of those lay members as the Commission determines". This means that the procedures committee will have nine members, of whom a maximum number of four are lawyers.

Unless the Minister accepts the amendment we have put down, which we have not arrived at yet, to the effect that representatives of the solicitor profession and the barrister profession shall be among those four appointees, then a minority of this committee of nine people will have legal experience when drafting certain criteria for appointment. The criteria for appointment in question are set out in the amendment we are discussing. It is useful to imagine, for example, a process for determining who should be appointed as a brain surgeon in St. Vincent's hospital which involved an appointments commission establishing a procedures committee to draft criteria for appointment, which included as a majority of its membership people who do not know much about brain surgery. Surgeons and other doctors with the relevant expertise would not necessarily be on that committee but, rather, existing people of a different persuasion. That does not make sense. In this instance, we have a strange situation where the criteria for appointment of members of the Judiciary which relate to legal matters are to be determined by a small subset of a body which is required, as to the majority thereof, not to be expert on the subject. Why would we possibly bring about such a scenario? It is not necessary to give effect even to the wildest ambitions of the Minister, Deputy Ross, that the criteria for appointment should be determined, in so far as they relate to legal matters, by people who do not know much about law. I do not see the logic of that.

The Senator's argument would be all very fine if we were dealing with purely legal skills and attributes, but there is more than that involved in the appointment of a member of the Judiciary. There is a requirement, for instance, for administrative skills, analytical skills and skills in dealing with human interest issues. It is about more than just knowledge of the law, albeit that is a most important skill and attribute. We are not confining ourselves to that criterion but are looking beyond it. It is entirely appropriate in the legislation that we should seek to draw on the expertise of people working with lawyers and members of the Judiciary but without confining the composition of the group to lawyers.

The Minister's criticism might have some validity in respect of paragraph (a) of the proposed section 53(7). However, I do not see how it has much validity in regard to the proposed paragraph (b), which states:

(b) Lay members of the Procedures Committee shall not take part in the preparation of that part of the statement referred to in subsection (1)(a) which concerns—

(i) knowledge of the law,

(ii) skills and competence in the interpretation and application of the law, or

(iii) ability to exercise functions as holders of judicial office.".

That is not being unfair to lay members. It is saying they are not people who specialise in this area and, as such, they should not be the controlling voice on those issues. Senator Norris noted that this amendment is based on a Scottish precedent. The Minister was happy to invoke that precedent when it suited him, to pooh-pooh other aspects of the legislation. However, it apparently does not suit him to invoke it in this instance. The Scots are canny people and it seems to me that they may have arrived at the view that it does not make much sense to hand over to lay persons, whose qualifying attribute is that they are not learned in the law, the development of criteria which have all to do with what it is to be learned in the law.

The Minister is not correct in saying that the provision would preclude lay members from discussing things like administrative ability and so on. What it says is that they are prohibited from preparing a statement which deals with applicants' knowledge of the law, skills and competence in the interpretation and application of the law, or the ability to exercise functions as holders of judicial office. Those are all specifically and clearly legal concerns. It does not exclude anybody from dealing with administrative abilities. Lay persons can take part in the preparation of a statement but not where it deals exclusively with legal matters. There is nothing to suggest that those lay members have any particular legal expertise.

The Minister's analysis of my amendment ignores completely the provisions of section 54, which ensure that the commission itself, which is in the majority composed of lay persons, gets to approve or disapprove any statements which are developed under section 53, to modify them as it considers appropriate, to approve them as so modified, or to refuse to approve them. This means that the lay majority has the clear right to reject the proposals of the procedures committee as to draft statements if it does not like those proposals. All I am suggesting is that it makes a good deal of sense to have people who know what they are talking about drafting the criteria that are of a technical kind.

In this case, the technical subject is the law itself and knowledge thereof.

On this amendment, there is no question of banishing laypeople to exterior darkness, silencing them or making them incapable of having an input on the matter. It is a question of whether they should do the original drafting or not and whether they should be in a majority on the drafting committee in respect of areas of the commission's activities that require legal experience and legal understanding. Those capabilities are not to be presumed in the case of laypeople and if lawyers are disqualified from being among the laypeople, who are to be in a majority, the criterion for excluding people with legal understanding seems to me to be incompatible with making such people the drafters as to legal expertise.

Senators Norris and McDowell both referred to the situation in Scotland. The amendment in the name of the Independent Senators draws heavily from the Scottish law except that it does not make reference to what appears to me to be an important aspect of the Scottish Act, where it makes quite clear that a portion of the section does not prevent a member of the board, presumably a lay member of the board, from taking part in the decision of the board as to whether to recommend an individual for appointment to an office. Their amendment is more prescriptive than that, insofar as it effectively debars the lay members from participating in the preparation of a statement, which is an important role and function under the new legislation.

It certainly does not debar anybody. The provision the Minister mentions about debarring laypeople from participating in decisions on appointments themselves is not an issue here. We are dealing with a sub-committee of the commission, which carries out the drafting of proposed statements, which in the last analysis, have to either be rejected, accepted or modified by the entire board. We are dealing with a slightly different animal here.

There is an awful lot to be said for the proposition that when it comes to drafting statements about the technical expertise of appointees, the people who know what they are talking about should be given a majority role in the drafting and it should then be left to the commission as a whole to say whether it agrees or disagrees with the criteria laid down by the people who have expertise in the area. There is no question whatsoever of silencing, exiling or sidelining laypeople because of the provisions in section 54. It is merely recognising, as they have done in Scotland, that it is slightly absurd to ask laypeople to participate in the drafting of technical criteria where they have no expertise in same.

What we are doing, which is entirely in keeping with the main function and the main thrust of the Opposition amendments going back over a year, is to effectively hobble the lay members and to create a hierarchy. Senator McDowell said that there are important aspects of this that non-lawyers and non-judges should have no hand, act or part in, thereby creating a hierarchy where there are second class members. The Senator has given evidence for months of his hostility to the garagemen being on the commission, for example, and of his hostility to anyone who was a non-judge or a non-member of the Law Library or the Law Society of Ireland being on the commission. This amendment is entirely in keeping with that, it is something I have a resolute opposition towards and that is why I cannot accept the amendment.

That is certainly not what is at play here. I want to make it clear that my concern in tabling this amendment is to ensure that those parts of the statements drafted by the procedures committee, which are entirely subject to review, amendment, rejection, modification or whatever by the entire commission, on which there is a lay majority, are drafted by people who know what they are talking about.

That is the giveaway, the Senator referred to "people who know what they are talking about."

Let us be clear about this. The religious zealotry the Bill exhibits in ensuring that, for instance, the chairman of the committee that does the drafting of the technical legal criteria may not be a lawyer is the exclusionary rule. If the Minister wants to look for apartheid in this Bill, it is remarkable that the procedures committee itself, which is a sub-committee of a majority lay body, must be a committee where one is debarred from having any function in chairing it, even in the absence of the chairperson, if one knows anything about law. That is reprehensible.

I will not argue the matter any further than that because the Minister has dug in on this matter but it is unfortunate that the wisdom of the Scots in this area is being ignored by a Government that seems to rely on the wisdom of the Scots in so many other ways.

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, 6; Níl, 19.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Horkan, Gerry.
  • Marshall, Ian.
  • Norris, David.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Higgins, Alice-Mary.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mac Lochlainn, Pádraig.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Donnghaile, Niall.
  • Richmond, Neale.
  • Warfield, Fintan.
Tellers: Tá, Deputies David Norris and Victor Boyhan; Níl, Deputies Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

Amendment No. 103 is in the name of Senator Ruane. The Senator is not here and she has not given permission.

Senator Ruane asked me to speak to the amendment.

You cannot speak on the amendment but you can speak on the section if you wish. Not at this point as I am dealing with the amendment.

Amendment No. 103 lapsed.

I wish to record my intention to introduce a similar amendment regarding Irish Sign Language on Report Stage which is to seek that we are consistent with the other legislation passed by this House.

The Senator can speak on the section and indicate that intention.

I have just done that and it is consistent with what this House has done in terms of Irish Sign Language in the past. I will put forward an amendment on Report Stage.

I move amendment No. 103a:

In page 36, between lines 3 and 4, to insert the following:

"(8) The need for good standards of communication referred to in subsection (5)(g) includes the need to inform applicants whether or not they have been recommended to the Government for appointment.".

Amendment put:
The Committee divided: Tá, 8; Níl, 15.

  • Bacik, Ivana.
  • Boyhan, Victor.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Leyden, Terry.
  • Marshall, Ian.
  • Norris, David.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Richmond, Neale.
Tellers: Tá, Deputies Victor Boyhan and David Norris; Níl, Deputies Gabrielle McFadden and John O'Mahony.
Amendment declared lost.
Progress reported; Committee to sit again.

When is it proposed to sit again?

Ag 10.30 maidin amárach.

The Seanad adjourned at 7.06 p.m. until 10.30 a.m. on Wednesday, 3 July 2019.