I welcome the Minister of State, Deputy James Browne, to the House.
Judicial Appointments Commission Bill 2022: Report Stage (Resumed)
Debate resumed on amendment No. 4:
In page 10, to delete lines 26 to 33, and in page 11, to delete lines 1 to 7 and substitute the following:
“Membership of Commission
9. (1) The Commission shall consist of 9 members, subject to section 45, being—
(a) the Chief Justice,
(b) subject to subsection (2), the President of the Court of Appeal,
(c) 2 members of the Judicial Council nominated and appointed in accordance with section 12,
(d) the Attorney General,
(e) 2 lay members appointed under section 13, and
(f) 2 members, one of which shall be a practising solicitor and one of which shall be a practising barrister nominated and appointed in accordance with the provisions of this Part.
(2) Where the Commission is performing the function of selecting and recommending persons for appointment to judicial office in the High Court, Circuit Court or District Court, the President of the Court concerned, and not the President of the Court of Appeal, shall be the member for the purpose of performance of that function.
(3) The Chief Justice shall be the chairperson of the Commission.
(4) The General Council of the Bar of Ireland and the Law Society of Ireland shall each respectively nominate a practising barrister and a practising solicitor for appointment by the Minister for the purposes of subsection (1)(f).
(5) No person nominated and appointed under subsection (4) shall be entitled to receive any remuneration or expenses under section 14.”.
When this amendment was debated previously, Senator McDowell spoke twice and the Minister of State was due to reply.
I have given my position on the matter.
Amendment put:
The Seanad divided: Tá, 6; Níl, 24.
Tá
- Boyhan, Victor.
- Clonan, Tom.
- Craughwell, Gerard P.
- Keogan, Sharon.
- McDowell, Michael.
- Sherlock, Marie.
Níl
- Ardagh, Catherine.
- Boylan, Lynn.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Daly, Paul.
- Davitt, Aidan.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- Murphy, Eugene.
- Ó Donnghaile, Niall.
- O'Loughlin, Fiona.
- O'Reilly, Pauline.
- O'Sullivan, Ned.
- Ward, Barry.
- Wilson, Diarmuid.
Tellers: Tá, Senators Michael McDowell and Sharon Keogan; Níl, Senators Lisa Chambers and Barry Ward.
Pursuant to Standing Order 57A, Senator Rebecca Moynihan has notified the Cathaoirleach that she is on maternity leave from 6th February to 18th August, 2023, and the Whip of the Fine Gael Group has notified the Cathaoirleach that the Fine Gael Group has entered into a voting pairing arrangement with Senator Moynihan for the duration of her maternity leave.
Amendment declared lost.
Amendments Nos. 5 and 12 are related and may be discussed together, by agreement. Is that agreed?
No. I would like to propose that amendments Nos. 5 and 12 be discussed separately because I am not going to move No. 5
Is Senator Higgins withdrawing amendment No. 5?
I will not be moving it at all, so in that context, I think it would be better if amendments Nos. 5 and 12 were treated separately.
Is the House happy for them to be separated? Agreed.
Amendment No. 5 not moved.
Amendments Nos. 6, 9 and 10 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 6:
In page 10, line 32, after “(3)” to insert “and subsection (4)”.
I second the amendment.
Amendment No. 6 is a technical amendment to make sure that amendment No. 9 will make sense. Amendment No. 9 adds a new subsection (4) to section 9, making sure that, "The Attorney General shall not, as a member of the Commission, play a role in the selection or recommendation of persons for appointment to judicial office in the Supreme Court, Court of Appeal or High Court." This would in practice mean that the Attorney General would not have a role in the commission's recommendation process for domestic judges. This is a compromise with previous amendments which I proposed on Committee Stage, which removed the Attorney General entirely. In line with recommendation 8 of the Committee on Justice's pre-legislative scrutiny report on this Bill, it revises the role of the Attorney General on the commission. The revision that we are proposing would enhance the independent decision-making of the commission when it comes to filling vacancies in our domestic courts.
In their submission to the committee, Dr. Laura Cahillane, Dr. Tom Hickey and Dr. David Kenny all noted that having the Attorney General also sit on the commission gives this individual law officer an outsized influence on the process. The commission is being set up as an external assistant to the Government's selection of the candidates, yet the commission which makes these recommendations has an individual who is the same individual sitting with the Cabinet and giving advice to the Cabinet about how it accepts or takes the recommendations from the commission. The experts noted that it has been common in the past for Attorneys General themselves to take up positions as judges in the courts upon leaving office, raising more questions about them being so intimately involved in the selection process of judges.
In its submission to the committee's pre-legislative process, the Law Society of Ireland stated:
If the new Commission is to be genuinely independent in its functions, there is no reason for the Attorney General, who also sits at the Cabinet table, to participate. ... To the contrary, it becomes more difficult to defend the independence of the process if a significant player has a dual role both prior to, and post, the Commission’s recommendation.
On the issue of the dual role, it is clear that as chief legal adviser to the Government, the Attorney General will play a role and have an input on the Cabinet discussion about the appointment of judges. If we want a truly independent judicial appointments commission, we cannot have a situation where someone who is appointed directly by Government is allowed to sit on the commission, which will then make its recommendations to the Cabinet and then also have an important role when it comes to the final decision of Government regarding judicial appointments.
Amendment No. 10 would require that the Minister, within two years of passing this Act, would lay a report before both Houses of the Oireachtas reviewing the provisions of this section with regard to the membership of the Attorney General on the commission.
Senator Ruane and I, and others, have extensively outlined our concerns on Committee Stage and the concerns of civil society regarding the role of the Attorney General on the commission. Amendment No. 10 is a very moderate amendment. It would at least demonstrate that the Government is at least listening to such concerns and monitoring any potential consequences, and that there is an appropriate review process within this Act to examine how the Attorney General having this dual role pans out in practice.
Effectively, one is talking about the same individual, that is, an individual directly nominated by the Government, who is in both rooms. He or she is in the supposedly independent room, which is examining potential candidacies for domestic judges, and in the room that is making what is, ultimately, the politically informed decision of the Cabinet regarding the appointment, in addition to all the other factors that contribute. This is not questioning that the Attorney General may have a role in the process but the role in the process at Cabinet should effectively preclude a role in that previous independent piece.
For example, in a situation where the commission may put forward a few names, we would be in a situation whereby, effectively, it is not clear how the Attorney General might be constrained in his or her engagement or advice to Cabinet on what aspects of the discussion of the commission are communicated at that point. It is a matter where there is not even clarity regarding what the protective measures are in respect of the independent functioning of the commission around how the Attorney General would engage with that, and how he or she would then go on, with Cabinet, to interpret the outcomes of the process in which he or she played a key role. You cannot be in both places or in both camps. We cannot have a process where one individual is central to both parts. It is something that will ultimately undermine the credibility or effectiveness of the new commission proposals that have been laid out.
There are many cases of Attorneys General who have gone on to become and be appointed as judges. I am sure, in many cases, these are meritorious appointments but it creates an unnecessary confusion if we have a situation whereby Attorneys General themselves have been in a position, in an outsize way, to influence the appointment of judges and are then in a position to potentially benefit from that same process themselves. We always look not just to best practice but clarity around the appearance of best practice. In that context, I hope the Minister of State might consider amendment No. 9; amendments Nos. 6 and 9 are a set. If he is not able to consider amendment No. 9 around the removal of the Attorney General, I ask that he at least agrees to amendment No. 10, which commits to a review of whether there have been unforeseen consequences, or other effects of the role of the Attorney General, and whether concerns have been raised. That amendment relates to a two-year review, which examines that specific issue.
I do not agree with this amendment. I do not really understand it either, although I understand where Senator Higgins is coming from in seeking to exclude the Attorney General. I do not understand how the Attorney General who, under section 9, is already entitled to be a member of the commission but, under subsection 9(3), "shall not, as a member of the Commission, have a right to vote on any matter coming before the Commission for a vote." My question, therefore, is what is the purpose of having the Attorney General on the commission at all, given the functions of the commission are set out in section 10, namely, "to select and recommend persons" to two Ministers for judicial office? If we are then to exclude the Attorney General from any involvement in that process, the presence of the Attorney General on the commission in the first place is redundant.
However, I disagree with the place Senator Higgins is coming from. In fact, she will remember that on Committee Stage, I tabled an amendment to do the exact opposite, which was to give the Attorney General a vote. There is an undue and unjustified concern about what is perceived to be independence but is in fact just the removal of the chief law officer of the State from a process in which he or she should legitimately be involved. My amendment was not accepted. It is as it is and I accept the Minister's decision in that regard. We could, however, become unduly concerned about the Attorney General. Fewer Attorneys General have become judges than you might think. In fact, most of the past dozen or so Attorneys General have not entered into judicial office. That is also something that is not a concern and can sometimes come into the debate as a red herring.
However, the Attorney General, as the chief law officer, the leader of the Bar, somebody who is intimately acquainted with the functioning of the courts, the jobs of the Judiciary and the qualities that would be appropriate for a person to be appointed to judicial office, and not being a judge him or herself, is uniquely placed among the members of that commission, who of course might have different interests in terms of the selection, to give an insight into the job of the commission. Not only do I disagree with the amendment, I disagree with where Senator Higgins is coming from. The opposite, in fact, should be the case. In the context of this amendment, whatever about what I think about it, it does not make sense to me because it makes redundant the idea of the Attorney General being a member of the commission at all. While that may be the idea behind the amendment, we would simply be neutering these provisions in the Bill unnecessarily and unjustifiably.
Section 9 deals with the membership of the judicial appointments commission and it provides, in line with the Government programme, that the commission will be chaired by the Chief Justice. It provides for an equal number of lay members - four - and judicial members - four. Judicial membership comprises the Chief Justice, the President of the Court of Appeal and two nominees of the Judicial Council. The Attorney General is a non-voting member. Amendment No. 9 proposes that the Attorney General shall not participate as a member of the commission in relation to appointments to the superior courts. It seems clear that amendment No. 6 is a consequential amendment to amendment No. 9, so I do not propose to address it in isolation.
The concern that the Senators appear to have is not shared by me. In respect of these amendments, I will say the following. The Attorney General will sit on the commission in an ex officio, non-voting capacity. I point out that the Attorney General is a constitutional officeholder who has a particular role in upholding the independence of the Judiciary. He or she does not represent the Government on the new commission. The Attorney General is independent of the Government. This position has been recognised and confirmed in decisions by the Irish courts. The Attorney General also has a role in upholding the Constitution, including a duty to ensure the independence of the Judiciary. In that context, there is no reasonable basis, in my view, for removing the Attorney General from the process, or from any part of it, as the amendments propose. Consequently, I am not in favour of the amendments.
Amendment No. 10 relates section 9 of the Bill, which deals with the membership of the judicial appointments commission. The amendment proposes that a report be prepared within two years of the passing of the Bill, which will review the membership of the Attorney General on the Commission. I see little merit in this proposal. First, section 10(2) of the Bill reads, "The Commission shall be independent in the performance of its functions." Second, under section 61 of the Bill, "the Commission shall monitor and review ... the implementation of the Act" and the first such review "shall be conducted not later than 2 years after the coming into operation of this section". Following the review, "The Commission shall submit a report and recommendations" to the Minister for Justice. Third, as I have previously stated, the concern the Senators appear to have regarding the membership of the Attorney General on the commission is not shared by me. The Attorney General will sit on the commission in an ex officio, non-voting capacity. I point out that the Attorney General is a constitutional officeholder who has a particular role in upholding the independence of the Judiciary. Consequently, I am not in favour of that amendment either.
I happen to agree with the remarks made by Senator Ward and the Minister of State to a certain extent. I do make the point, though, that the vote we have just taken on my amendment No. 4 had the effect of, among other things, not merely restricting the capacity of any members of the legal profession to be members of the commission, but the amendment that I had tendered also took away the provision that the Attorney General should not have a vote on the commission. It is well worthwhile to point out that not every decision will be made by a vote. There may be a consensus, and the Attorney General, one way or another on the Minister's text, will be able to have an influence on the selection of people to feature on a shortlist and to exercise his or her opposition to the inclusion of somebody on a shortlist. That is the first thing I want to say.
The second thing is, there seems to be a fashion now to regard the Office of the Attorney General as somehow suspect. I find that it is media driven and mainly nonsensical. The Attorney General has many roles, one of which, under the Cabinet handbook, is to advise the Government on the suitability of a person's applying for judicial office. That role is at present provided for in the Cabinet handbook. The Attorney General must be consulted by the Minister for Justice before the Minister formally proposes, which is the procedure in Cabinet, the appointment of somebody as a judge. The Attorney General has that role in any event and is entitled to advise the Government in relation to the suitability of a person to be or not to be appointed as a judge.
It seems to me to be entirely redundant and counterproductive that somebody who has that role and is sitting as a member of the commission should not express similar views at the commission. If somebody is highly suitable or highly unsuitable in the view of the Attorney General, why should the Attorney sit there mute and silent while other people discuss the merits and when that person, if he or she is in fact nominated, either with the support or against the wishes or views of the Attorney General, will run into a strong headwind later at Cabinet? I do not see any reason the Attorney General should be forced into two entirely separate compartments, one of which is to sit at the commission and say nothing about his or her views as to the suitability of a candidate or the merits of one candidate over another, and then go into the Cabinet room and undo the work of his or her fellow commissioners by saying that, notwithstanding what happened in the creation of the shortlist, one of the members of that shortlist is somebody who should not be appointed and is not suitable for appointment to the relevant position, be it president of a court, membership of the Supreme Court, membership of the Court of Appeal or whatever.
That is a reason I strongly believe the Attorney General should be involved in the process. The Attorney General is at the moment involved in the Judicial Appointments Advisory Board process. It is a useful and beneficial presence for the Attorney General to see who is there and who is being recommended for appointment for that body, and to be able to go to Cabinet and say that person was either strongly recommended or weakly recommended, or that there were other persons far better than that person, in the Attorney General's view, who had been left out.
The second thing is that Senator Higgins is seeking a report on the involvement of the Attorney General in the activities of the commission, to be furnished by the Minister to the Oireachtas. I just do not know how that report would work out. Are we to be told that the Attorney General did or did not contribute, did or did not express opinions, or that the Attorney General's views were constantly overridden by a majority? Are we going to learn anything useful from a report being furnished to the Members of the Oireachtas without breaching completely the confidentiality of the discussions about the relative merits of the various persons applying for recommendation? Again, there is a deep-seated confusion. I am not saying this personally in respect of Senator Higgins, because other people have, as she has said, expressed similar views that somehow the independence of the appointments system is contaminated by the fact the Attorney General would have some views on the matter.
The Attorney General is a constitutional officer; let us remember this. This commission is subconstitutional. The Attorney General has a role under the Constitution, one of which is to advise the Cabinet on the suitability of people. That has existed since 1937. That role of the Attorney General is part of the basic and fundamental law of the land and it cannot simply be wished out of existence.
It cannot simply be reduced to the point of meaninglessness such that the man or woman who is Attorney General has to sit in a room and say nothing while discussions are going on, which would be the case if Senator Higgins's amendment were accepted, or, alternatively, if the amendment I proposed and that was rejected had been accepted, that the Attorney General could not have a say, especially in a circumstance we discussed at great length on the previous occasion, whereby the Government is creating a deliberate deadlock on this commission. It is an eight-person commission. Four people can have one view of a candidate, four people can have another view and there is no way of resolving that issue. Why are we doing that? I do not know. If we had given the Attorney General a vote, there would at least be the opportunity of a 5:4 decision. However, the chairperson is not being given a casting vote and the Attorney General is not being given any vote at all under this hybrid legislation. The result is that we are moving towards a situation whereby four members of the Judiciary will have a veto over the appointment of anybody else to the Judiciary, any promotion within the Judiciary or any appointment of somebody to one of the high constitutional offices, that is, President of the Court of Appeal, President of the High Court or Chief Justice.
This is a sad enterprise. I see where Senator Higgins is coming from with her amendment but I do not agree with where she is coming from. It clearly originates, as did the academics' views to which she referred, from some view that the Attorney General, as a constitutional officer, is not a person who should have an input of any significance into the appointment of judges. The Attorney General can, of course, go to the Cabinet and say, "Here is a short list of three." However, what the Attorney General cannot do is say the short list is extremely defective. At least one reason for having the Attorney General on the commission is that he or she can report to the Cabinet people who are constantly applying to be judges and who, in the Attorney General's view, are being unfairly refused recommendation. Those are the waters we are sailing into. At least the presence of the Attorney General might alert the Government to the fact there is an agenda among the judges to select a particular type of person to be a colleague, which is, in the Attorney General's view, unhealthy, unwise or undesirable, or that particular persons seemed to be the subject of unfair evaluation by their colleagues. I reiterate that the four lay people are not going to be in as good a position as the four judicial people to come to a view as to the real merits of whether somebody should be recommended in the first place.
There is an old Woody Allen joke that in the beginning there was nothing and the Lord said, "Let there be light", whereupon there was still nothing but you could see it far better. We are now in a position that we are, in effect, creating a Bill that claims everybody should be appointed on merit, but merit is what the members of this commission consider it to be. I have made this point repeatedly. I will not dwell too much on it now other than to say that as between a liberal, a conservative, a social radical, a republican, a nationalist, a pro-European person or somebody else, merit does not matter. If it is to be taken into consideration, what does "merit" mean? If there are two highly intelligent women or men who are well capable of understanding the cases that come before them and acting very judicially in regard to those cases, but one of them is a conservative and social reactionary and the other is a radical and progressive quasi-revolutionary, how does merit decide which of them should be appointed? This shibboleth of appointment on the basis of merit raises the question constantly of what is "merit".
To revert to the particular role of the Attorney General, we are looking at a situation whereby he or she is not capable of saying to the other members of the commission that a particular person, in his or her view, is extremely unlikely to be appointed by the Cabinet for whatever reason. It might be because the person was madly pro-choice or madly pro-life or whatever. Perhaps it is a situation in which a person is applying for the first time to be a judge and he or she has a particular outlook on economic and social affairs or whatever. If the Attorney General cannot say to his or her fellow commissioners that this person is of such a mind-set that the Cabinet is extremely unlikely to appoint him or her, then what is the point of this whole enterprise?
I remind the House that the Minister's predecessor absolutely refused to deal with this issue. It must be dealt with at some stage. If the commission is going to interview people, can it deal with issues such as their philosophy, outlook, political stance and political record before being appointed to be a judge? Can commissioners ask questions during a commission interview process that deal with those issues? These are issues that tend to trench on the whole question of how one is going to, or is likely to, decide cases or what one's overall philosophy is likely to be. This process says there must be interviews, there must be independent people and they must make a decision on merit, but there is no guidance given to them on whether they can ask any question as to whether, for instance, in the ten years before somebody applied to be a judge, he or she was leading a radical political movement or a not-radical political movement or was taking a stance on social issues that would cause people in the street to wonder whether this person is suitable for judicial office. Is there an entitlement even to ask people about that? Is there an entitlement to ask whether a person is an active Marxist or an active member of Opus Dei or things like that? No, there is not, or I think not anyway, because there is nothing in the Bill that says there is such an entitlement. Surely somebody is entitled to know these things before a person is appointed?
We are just wishing all of this away in a kind of bland act of self-oblivion as to the realities of why people are or are not considered suitable to be judges in the first place or suitable to be appointed to high office within the Judiciary. The grounds on which those decisions are made are ones that are not capable of being properly dealt with by four judges. It is none of their business whether somebody was an active member of People Before Profit, for instance, before he or she applied to be a judge. The Judiciary will not decide those kinds of things but the Attorney General may say to his or her fellow commissioners, "I want to draw this aspect of that person to your attention." Those are the realities.
While I appreciate the sincerity of Senator Higgins in trying to remove all political aspects from the appointment of judges, such an appointment is a fundamentally political - not party political, but fundamentally political - duty and right of government, and it is exercised by reference to what are political issues in the sense of economic outlook, social attitudes and the like.
The Attorney General is entitled, from the Cabinet handbook, both as a member of the commission and as the legal adviser to the Government, to be consulted on these matters and to make his or her views clear at all relevant stages. For these reasons, I am opposed to the amendments put forward by Senator Higgins.
To be clear, I have not removed the Attorney General altogether from the whole process and sent them out into the wilderness, which is what would come across from the contributions we heard. I am clear that the Attorney General has a role and, indeed, a political role as legal adviser to the Government. I refer to that part of the process whereby the Attorney General, as legal adviser to the Government and Cabinet, gives advice to Cabinet on a short list of candidates who have been put forward. It might be very good advice but none of us will know because we are not members of Cabinet and the advice given by the Attorney General is not information that is publicly available and shared. The advice given at that stage may contain all kinds of insights into the candidates. In the proposal, as such, it was mentioned that if there were circumstances where it was seen that worthy candidates were repeatedly refused or there was a pattern of obstruction of certain candidates, the Attorney General can report on that factor because they are there as a witness within the commission. As I said, I put forward amendments on Committee Stage to remove the Attorney General and change the maths and so forth generally within the commission. However, seeing as that was not accepted, this new amendment is simply looking to the role, so the Attorney General is in a position where they can report what kinds of factors have featured in the discussions or considerations of the commission. They would not be influencing that decision. As was acknowledged by Senator McDowell and others, it is not simply voting - voting is not the only way one influences a selection process. There are many other ways one can influence a selection process and it may indeed be by pointing out the past political party membership of a candidate and so forth. There is a question, given the separation of powers and that we want a Judiciary that does not simply match a Government that may come or go, but will be in that role for a long period of time through multiple governments, that perhaps it is appropriate that the appointment decision is still sitting with Government but the considerations should sit in a wider frame and be designed for a wider time period than the particular preferences of a particular Government of the time, which may or may not be communicated by an Attorney General to a commission as a sitting member.
My amendment is carefully worded. I am not saying that the Attorney General would not play a role in the process around the appointment of judges. I am saying that they should not in their capacity as a member of the commission. However, they have multiple roles, as was outlined. They have the constitutional role and, separately, they have their role as legal adviser to the Government. It is the fact that in that role of legal adviser to the Government, information and advice that is given is not something that we in the general Oireachtas or the public will have access to that I look to clarify. We have been told they are leaving one role at the door, supposedly, and taking up their different constitutional role when they go on the commission. However, it is to ensure that if we do not and cannot know what advice the Attorney General might give to Cabinet, we have a sense of what the input they gave in their other role, if they are taking up this other capacity, where they are going to be part of the commission and play a role there in drawing on their expertise as highest legal officer - I think that was the phrase - in the State and that we have that idea of the confidentially, which necessarily assigns to the Attorney General in their legal advice to Government, is not necessarily precluding us having some sense of what role the Attorney General is playing and the contribution they are making within the commission.
We are being told contradictory things. One is that the Attorney General being there ensures we do not have somebody recommended that the Government will say “No” to anyway. That is a concern, if we the Attorney General there creating a chilling effect on candidates being recommended because they are not going to be who Government might have preferred. That, again, implies a blurring of the lines. On the one hand, we have been told they are two separate capacities and two separate functions and, on the other hand, we have been told how they are anticipated to affect each other.
Therefore, my amendments are a reasonable compromise. The Attorney General is on the commission and can affect the workings of it, monitor the way that it is and be a flag to Government if there are concerns related to how the commission might have operated but is not in a position to unduly influence the creation of a short list which they then get to choose and give the advice on who on a short list should be selected. It is just too much power for one person. This is not disparaging Attorneys General or creating a concern around them. It is an incredible honour to be serving as an Attorney General. It is an incredibly important function of anybody in the State.
However, I am speaking as somebody who is not and probably will never be in Cabinet. I am looking to the situation whereby it is not a lack of trust of the individual and I would reject any of the implications that somehow say that I am implying that. It is around how currently, the way the role is designed, we do not have access to the advice that Attorneys General give. It is given as legal advice to the Government and that is quite separate from serving the State in its wider picture. The Government is not the State. That is an ambiguity that seems to come in. There does not seem to be a clarity around that all the time. The Government and the State are not the same thing. The State exists and continues to exist and Governments come into power and so forth. They are the Executive but we also have the Oireachtas. There is a whole set of checks and balances at work.
I am concerned there is not a clarity around the separation of the those functions, ensuring Attorney General can come in at the appropriate time. Again, I would reject the suggestions that I said they should have no role. I have been clear; none of my amendments have tried to remove their role in relation to legal advice or short list advice to Cabinet. However, I have tried to ensure they are not in two different roles at two different parts of the process.
Those are reasonable amendments. My amendment No. 10 tries to address that if we are going ahead with this idea that the Attorney General will play one role just as a chief legal officer of the State within the commission and then is going to flip over and be the legal adviser to Cabinet later on, the provisions around the legal adviser to Cabinet role, where there is all that necessarily appropriate confidentiality, should not necessarily constrain us having insight into the role that the Attorney General plays within the commission. That is why I am tabling amendment No. 10 around the functioning of the Attorney General.
Those examples that were given about what might be in that report are good examples of things we should know. Is the Attorney General always being ignored and railroaded past? Is the Attorney General seeking to repeatedly block the same candidates? Those are relevant things. If any of the scenarios that were outlined hypothetically were to be in play, that would be important information for us to know because they would have ramifications for the effectiveness of the functioning of the judicial commission. In that context, I will press these amendments.
Amendment put and declared lost.
Amendment No. 7 is out of order.
Amendment No. 7 not moved.
I move Amendment No. 8.
In page 10, line 33, after “13” to insert “of whom one shall be nominated for appointment by the Irish Human Rights and Equality Commission”.
I second the amendment.
Under the original head of Bill proposed by the Minister of State's Department, a nominee from the Irish Human Rights and Equality Commission was included in the membership layout. The Irish Human Rights and Equality Commission understood that having it as the nomination body for one of the lay positions was a guaranteed in-build of human rights and equality expertise within the layout of commission membership. This was welcomed, but was removed in the draft Bill while the legislation as it stands states that human rights and equality should be protected in the process. It was important to be proactive and have human rights and equality expertise guaranteed in the lay membership rather than one of four broad selection criteria. From our point of view, it is important to have the voice of the Irish Human Rights and Equality Commission. How can we say we want to protect human rights and equality while not including it in the nominee process?
I thank Senator Flynn. Amendment No. 8 relates to section 9 of the Bill, which deals with the membership of the judicial appointments commission. Amendment No. 8 proposes that one of the lay members of the commission shall be nominated for appointment by the Irish Human Rights and Equality Commission, IHREC. In drafting the Bill, the Minister has carefully considered the most equitable approach to take in the appointment of lay members. The Senator will be aware that the draft provision had originally been made for one of the members to be nominated by IHREC. On consideration of the matter, it appeared to us that there are many organisations and bodies in our community and society, which might have a positive contribution to make in this respect. It did not appear to us to be the best option to designate one single body above all others, as the only nominating body in the selection of lay members. On balance, therefore, we decided that all nominations in this context should be made through the Public Appointments Service, PAS. We believe it will be critical that expertise and knowledge in the area of equality and human rights are brought to bear on the functions of the commission. We have included that requirement in section 13 as objectives the Public Appointments Service must bear in mind in its determination of selection criteria, that is, the selection of all four lay members. I believe the Public Appointments Service is the most appropriate model to employ for this purpose. A person associated with a body or organisation that may have an interest in this area can come forward, as indeed can any individual who has expertise and knowledge in the area set out under section 13, including human rights and equality. Consequently, I am not in favour of the amendment.
The Irish Human Rights and Equality Commission is not simply an organisation. It has an important statutory function. It has a function to ensure human rights and equality are reflected. The Minister of State and his Department have an obligation under the IHREC legislation to ensure that human rights and equality are properly reflected in the actions and in the legislation. I do not think it is fair to say there are lots of organisations in Irish society, and I speak as a big supporter of NGOs and their role. IHREC is not an NGO. It is the Irish Human Rights and Equality Commission. That it was originally included in the legislation was important for addressing one of the key issues, namely, ensuring that something as important as the Judiciary reflects the diversity and considerations of equality in Irish society. That is crucial because the Judiciary determines the right of consideration by one's peers. As for the phrase, "having regard to", the section mentioned by the Minister of State is quite wide and loose. Matters connected with business, finance, corporate governance, human resources and the courts are there, which one would be glad of. It also speaks of the importance of the protection of human rights and equality. However, the protection of human rights and equality is itself inadequately phrased. It does not reflect the full scope of the public duty on equality and human rights. It is not simply the protection of human rights and equality but the promotion of human rights and equality. There is an active and positive duty in that respect. It is not simply that we do not move backwards but that collectively, as a state, we attempt to move forward. The protection of human rights and equality is an inadequate framing, and less than the framing in terms of the public duty on equality and human rights. That is only one of a number of matters that might be considered. A role for the Irish Human Rights and Equality Commission as one of the key lay members, as originally proposed, is important for another reason. Perhaps not every single diverse group in Irish society would be reflected but there would be a body with the resources, knowledge and mandate to be able to address a wide scope of equality and human rights issues. They are also particularly relevant because this is not only about interest groups. It is because so much of our law relates internationally to human rights. Human rights are a rapidly evolving area. For example, the Irish State seems to have ambiguous feelings on the right to a healthy and sustainable environment. That has been recognised by the UN as a new human right. It supported it in the UN, but seems to be opposing it now at the European Court of Human Rights. It is a rapidly evolving area, and one of important expertise, to which judges and courts need to respond. Having somebody in the room who can look to the wider international contexts of our laws on equality and human rights would not simply be nice to have, but would be invaluable to have. It would ensure we have judges who are aware of, and able to reflect a very important area of international and evolving law. It is regrettable that the Government has moved away from having a representative of IHREC. I urge the Minister of State to reconsider that factor because I am not confident the measures outlined in section 13(4) are adequate.
This is a little like our political system. We need the people in our courts to look like us and to be from our communities as well. I understand that having IHREC would play a role in that too. Where is the black judge in Irish society? Where is the judge who is a member of the Traveller community? We know many people within our community have gone on and practised law and have been barristers. I welcome the appointment of Susan Fay as a judge to family court law. She worked with members of the Traveller community and has experience working with the Traveller community. It is something we have to look at in the future. Like my colleague, Senator Higgins, I feel it is regrettable that the Minister of State cannot accept our amendment, which would be a positive step for people from minority groups.
Amendment put and declared lost.
I move amendment No. 9:
In page 11, between lines 6 and 7, to insert the following:
"(4) The Attorney General shall not, as a member of the Commission, play a role in the selection or recommendation of persons for appointment to judicial office in the Supreme Court, Court of Appeal or High Court.".
I second the amendment.
Amendment put and declared lost.
I move amendment No. 10:
In page 11, between lines 7 and 8, to insert the following:
"(5) The Minister shall, within 2 years of the passing of this Act, lay a report before both Houses of the Oireachtas reviewing the provisions of this section in relation to membership of the Attorney General on the Commission.".
I second the amendment.
Amendment put and declared lost.
Amendments Nos. 11, 29 and 30 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 11:
In page 12, to delete lines 16 to 22.
I second the amendment.
This amendment is to remove lines 16 to 22, inclusive, on page 12 of the Bill in the form we are considering it. The purpose of this amendment is to query what I consider to be a completely artificial aim, namely, that somehow the branch of the profession that a person was a part of at the time that he or she was originally made a judge should determine for any purpose later whether that person should or should not be able to play a full role as a nominee of the Judicial Council. It is more or less grotesque that this proposal should be made. A person will have been a solicitor or a barrister on the day of his or her appointment. Ten or 12 years later, well into his or her judicial career, it becomes absolutely immaterial as to what profession he or she practised the day of his or her appointment. It is a ridiculous proposition that some people who have been on the High Court for ten years cannot both be appointed to the commission because both of them happened to be solicitors at the time of their original appointment. They cannot be elected by members of the Judicial Council because of which side of the fence, which is a completely forgotten aspect of their careers, they used stand on at the day of their appointment.
Let us think. If somebody has been practising as a solicitor for ten years or 12 years or whatever the requirement is, becomes a High Court judge and later becomes a Court of Appeal judge, why is it that when his or her Judicial Council colleagues decide to elect two members to the commission, if there are two people offering, one of them will have to stand by and allow somebody else from the other side of this entirely historical accidental qualification, possibly of 15 years' historical duration, in order that they should somehow be balanced as between the two sides of the profession?
I will tell the Minister of State why I object to it. It is, in effect, a sop to the fact that the Government has made a cardinal error of not allowing any practising solicitor or barrister to have any participative role in the affairs of this commission. That is what it is all about. It is saying that as between them, we will somehow represent those professions by taking a look at judges who at some stage of their careers used be one or the other and that will achieve what we have rather ridiculously removed from the legislation, which is practitioners who have a valuable input to make at the moment the commission makes a recommendation, and not a judge who, 15 years ago, was a member of one profession and might in those days have been in a position to be in the District Court, the Circuit Court, the High Court, the Court of Appeal, the Supreme Court or whatever it may be as a practitioner. It simply does not make sense. It should not be part of this Bill. I do not know what the purpose of it is.
The Judiciary, as I understand it, will all collectively elect these people. As I understand the present composition of the Judiciary - maybe I am wrong about this but I think I am right - a majority are solicitors and if the notion is that the barristers could all get together to nobble solicitor candidates for the Judicial Appointments Commission Bill, that does not stand up to scrutiny at all. The great majority of District Court judges were solicitors when they were appointed and a very significant number of Circuit Court judges are now former solicitors. I do not know what the exact figures are. I do not keep count. I do not really care because, like any other legal practitioner, when I go into court I do not ask which profession the judge was in when he or she was appointed ten years ago. It does not occur to me to ask that question. It would be a wrong question, even for a client or a practitioner, to entertain in the back of their heads when they are dealing with a member of the Judiciary.
The purpose, as I say, of this amendment is simply to bring about a situation where the nonsense stops and the Judicial Council is entitled to elect two people. I am not suggesting they should not be a man or a woman because this amendment does not affect that - there is a gender balance provided for - but that they should be allowed to decide which of their own number is or is not suitable or would be a good person to have on the commission without having to trawl back ten, 15 or 20 years to try to find out which side of the professional fence these people came from.
The other issue I want to point out is that the Legal Services Regulatory Authority is about to generate proposals that solicitors and barristers can be partners in firms so that, again, the nonsense of this particular so-called balance becomes apparent. You will in the very near future be entitled, if you are a barrister or a solicitor, to form a partnership with another barrister or solicitor to carry on a practice. If two people sit around the same table for ten years during their lives as practitioners, how does it become relevant subsequently that the whole way through the rest of their careers, if they are appointed to the Judiciary, one of them carries this badge of having been a solicitor on day one and the other a badge of having been a barrister when the pair of them ran the same firm and were liable in exactly the same way as each other for the conduct of legal business as practitioners? This is nonsense. It is old-fashioned thinking by the Department. If we are going to the point where barristers and solicitors are free to form partnerships - I do not know whether that is a good idea or a bad idea or whether it will take off or will not take off but I am sure barristers will become partners in large solicitors' firms as time goes by - how can it possibly be relevant one way or the other ten or 15 years after that as to what they were the day they became a partner in a large solicitors' or legal firm?
I am interested to hear the Minister's justification for this so-called balance item. What is the reasoning behind it? Who asked for it? Was it the Law Society or the Bar Council or is it the Department's view? How is it reconcilable with the imminent development that solicitors and barristers will be allowed to practise together as members of the same firm?
I agree with what has been said, not least because this is exactly the same as my amendment No. 16 on Committee Stage. I will say what I said then. Judges are judges; they are not solicitors or barristers. They may have been in the past. I would not even say a few years after they have been appointed but the day after they have been appointed, judges leave behind any professional biases they may have or, particularly, any political biases they may have. A judge on the bench will never disclose what he or she might have thought about a particular polity or policy before he or she became a judge. He or she will listen to the arguments because that is what a judge does. The job of a judge is to apply the rule of law, the case law, the statute law and the constitutional provisions relevant to a given case for whatever hearing he or she is involved in. It does not matter whether he or she spent ten, 20 or 30 years as a solicitor or as a barrister; it makes no difference whatsoever. The point made by Senator McDowell is a good one in terms of the make-up of the different courts because different courts are populated to different extents by former barristers and former solicitors. It would be ludicrous that there would be a situation in which one applicant must be turned down because he or she practices as a barrister or solicitor because the quota must be made up on a particular bench. That is nonsense. As we know, certain benches have more solicitors and some have more barristers, and there are identifiable reasons that is the case.
I tabled this in amendment No. 16 on Committee Stage. I raised these issues and they were not accepted; it is what it is. This demonstrates a fundamental misunderstanding of the role a judge carries out. Sitting on the bench, he or she does not act as a former anything; he or she acts as a judge. Judges swear an oath, which I listened to last week during the swearing-in of two High Court judges. I was astonished to find, and perhaps I should have known this, that the oath stated that they would not bear any ill will towards any man, which is something I think should be changed. We must look at the constitutional context of that, and Senator McDowell and I have discussed this. I know we cannot do it from this House but I have recruited a colleague in the Dáil to bring forward a Bill to amend that. It seems to me to be preposterously out of date. The point is, they swear a constitutional oath at the point they are sworn in, irrespective of which court they are joining, which is to exercise their functions as a judge without fear or favour and certainly without any prejudice to a previous profession to which they may have belonged.
This provision in the Bill is ill-conceived and not rational, reasonable or grounded in fact. I say all of this in the circumstance in which I brought forward this amendment. I do not know if the Minister of State is now minded to consider it, but it is a real problem and will create unnecessary administrative difficulties for the new commission when the time comes to appoint good people to these jobs. That is perhaps the most important function of this judicial appointments commission, to put people in judicial positions who are good judges, render good decisions, apply the law in a good way and give justice to the people who come before the courts.
I thank the Senators. Amendments Nos. 11, 29, and 30 are being taken together. I will deal with amendment No. 29 first. Section 63 provides for the amendment of the Courts (Supplemental Provisions) Act 1961, including the insertion of a new section 45A, to provide for the qualification of certain legal academics for judicial office as an additional basis for qualification. The new section 45A provides that a person who is a legal academic or is the head of a faculty in an educational establishment and has practised as a barrister or solicitor for at least four years shall be qualified for appointment and for nomination for appointment or election to judicial office. A legal academic is a person who is a permanent member of the academic staff in the field of law in a specified educational establishment, including a university, the King's Inns or the Law Society. Amendment No. 29 would delete all of the new section 45A, the effect of which is, of course, that a legal academic would not in fact be eligible for consideration for judicial appointment. This is a repeat of a Committee Stage amendment, as is the next amendment.
The Bill is significant in that it goes some way to extending the pool of eligible candidates for judicial appointment. District Court service will now qualify, as will employed barrister service. The third category the Bill extends eligibility to is legal academics. It is generally and widely recognised that legal academics are well placed to provide legal opinion across a range of matters. Many have a significant depth of knowledge and expertise in particular areas of the law. The new section 45A has been carefully drafted. First, the legal academic who is an applicant for judicial appointment must be of not less than 12 years' standing in that role and be currently employed in that capacity. The applicant must also be a qualified barrister or solicitor. The applicant must have practised as a barrister or solicitor for four continuous years and many, of course, will have more practice years than that. These are quite demanding requirements in some respects. As to eligibility, legal academics must be suitable in other respects, as the Bill requires, for example, on health grounds, compliance with regulatory law and be in a position to provide required information. As such, an applicant must undergo the selection procedures which we have seen, including a requirement to be interviewed by the commission. I cannot support that amendment. The requirements set out are quite exacting and I believe the addition, potentially, of the knowledge and expertise from the academic legal field in the court environment is a significant and important addition to eligibility.
The Senator's amendment, No. 30, also amends section 63, specifically new section 45A, dealing with legal academics. As I indicated in respect of the previous amendment, the legal academic who is an applicant for judicial appointment must be of not less than 12 years' standing in the role and currently employed in that capacity. Additionally, the applicant must also be a qualified barrister or solicitor and must have practised as a barrister or solicitor for four continuous years. Many, of course, will have more practice years than that. The Senator's amendment would retain the possibility of legal academics being considered for judicial appointment but only if the applicant, along with 12 years' standing as an academic, also has ten years' practice as a barrister or solicitor. The Senator might accept that there is a logic to extending the eligibility criteria to legal academics, but to extend to ten years the requirement to have previously practised on a continuous basis for four years would appear problematic and even unreasonable. Four years' practice as a legal professional strikes the proper balance between the competing experiences and practice required in this context. On that basis, I cannot accept the amendment. I add that an applicant will be required under selection statements to demonstrate he or she has undergone professional development or training relevant to the role of a judge.
Amendment No. 11 is related. It amends section 12 by deleting subsection (4). Section 12, we might recall, provides for the arrangements for nominating Judicial Council members. One criterion for nomination is that one nominee will have practised as a barrister and one will have practised as a solicitor. As we have seen while discussing new section 45A, it provides for recognition of certain legal academics in terms of qualification for judicial appointment. Section 12(2)(b) is therefore a technical provision that makes it clear, in the context of the nomination of Judicial Council members to the commission, that qualification as set out under section 45A will apply to such nominations. Therefore, I do not support this amendment, as I do not support the removal or deletion of the new qualification arrangements for certain legal academics under the Bill.
When Senator Ward tabled these amendments on Committee Stage, I was in agreement with them. I have listened carefully to what the Minister of State has just said. He has not replied to the points I made about the fact that members of the two professions are now able to form joint firms and practise together indistinguishably. We have not heard a word about that. There is no explanation as to how this provision sits with the imminent reform about to be triggered by the Legal Services Regulatory Authority to allow solicitors and barristers to practice together in firms. There has been no response to that point, which is disappointing.
The Minister of State has made reference to the appointment of persons who have experience as legal academics. I have no problem with the principle of persons being appointed on the basis that they are currently legal academics, provided they have some minimum previous experience of the courts, because you might as well say somebody could be appointed a consultant surgeon who has never seen a patient or a hospital if you did not have something of that kind provided for.
I have also tabled a late amendment in respect of the appointment of legal academics because on Committee Stage, to my surprise, although I suppose I should not have been surprised, it emerged that service in foreign universities will qualify. Somebody could do four years as a barrister or solicitor in Ireland, go off to the US, South Africa, Great Britain or, more likely, Queen's University in Belfast or the University of Ulster and, on the basis of those four years, become eligible to be recommended to the Government for membership of our Supreme Court and for appointment as Chief Justice. It was in that context that the light bulb suddenly went on. There is nothing in this legislation that requires any of these people to be a citizen of Ireland, and there is nothing I could find in any of the courts Acts that provides that this should be the case either. So we have a situation whereby a French or English person who is not a citizen of this country could qualify as a legal academic on the basis of having practised for four years in the Irish legal system and then be appointed to any court in the country without even being an Irish citizen. It is for this reason that I tabled the amendment. Articles 8 and 9 of the Constitution state that fidelity to the nation and loyalty to the State are the primary duties of citizens. It would be remarkable if people who do not have those duties would be eligible to be appointed to positions in the Irish courts.
When I considered the matter further, I thought that perhaps the Government should be able to appoint somebody who is not an Irish citizen to judicial office outside the State, for example, the International Criminal Court, the Court of Justice of the European Union or the European Court of Human Rights. Maybe it is an unnecessary requirement. If Ireland considered that there was a particularly good jurist we wanted to appoint to a position in one of those courts, there is no reason why he or she should be a Irish citizen given that his or her loyalty is not to the member state and he or she is not administering the Irish Constitution or the laws enacted by Ireland. The amendment I tabled purely concerns judicial appointments to positions within the State. I wanted to say that because the grouping has raised the issue of academic appointees. I have no problem with such a liberalisation, but I believe that a fundamental requirement for appointment to the Irish domestic judicial system - the Supreme Court, the Court of Appeal, the High Court and the other courts - should be that the person involved owes the same duty to the Irish State as that owed by all citizens, namely, loyalty, and is not loyal to some other state.
I am disappointed that the Minister of State made no reference to the fact that it is now perfectly permissible for people who have qualified from either end of the legal profession, through either professional body, to practise together. In such circumstances, to say that someone who goes to King's Inns and sets up a legal firm with a solicitor or who becomes the chief managing partner of Arthur Cox should be treated differently in respect of his or her capacity to be elected by his or her fellow judges to the Judicial Appointments Commission by virtue of the fact that in his or her youth, he or she went one way rather than another into the legal profession even though he or she practised throughout his or her entire history as a partner and in the same firm as another person is an antiquated and nonsensical distinction to draw at this stage. I am disappointed that the Minister of State did not accept the amendment tabled by Senator Ward on Committee Stage. I am also disappointed that he is not accepting this amendment.
Is the Senator pressing the amendment?
Amendment put:
The Seanad divided: Tá, 5; Níl, 30.
Tá
- Boyhan, Victor.
- Clonan, Tom.
- Keogan, Sharon.
- McDowell, Michael.
- Mullen, Rónán.
Níl
- Ardagh, Catherine.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Flynn, Eileen.
- Gavan, Paul.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- Murphy, Eugene.
- Ó Donnghaile, Niall.
- O'Loughlin, Fiona.
- O'Reilly, Pauline.
- O'Sullivan, Ned.
- Ruane, Lynn.
- Seery Kearney, Mary.
- Ward, Barry.
- Warfield, Fintan.
- Wilson, Diarmuid.
Tellers: Tá, Senators Michael McDowell and Sharon Keogan; Níl, Senators Paul Daly and Barry Ward.
Amendment put: The Seanad divided: Tá, 6; Níl, 24.TáNílBoyhan, Victor.Clonan, Tom.Craughwell, Gerard P.Keogan, Sharon.McDowell, Michael.Sherlock, Marie.Ardagh, Catherine.Boylan, Lynn.Byrne, Malcolm.Byrne, Maria.Carrigy, Micheál.Casey, Pat.Chambers, Lisa.Conway, Martin.Crowe, Ollie.Daly, Paul.Davitt, Aidan.Dooley, Timmy.Fitzpatrick, Mary.Horkan, Gerry.Kyne, Seán.Lombard, Tim.McGahon, John.Murphy, Eugene.Ó Donnghaile, Niall.O'Loughlin, Fiona.O'Reilly, Pauline.O'Sullivan, Ned.Ward, Barry.Wilson, Diarmuid.Tellers: Tá, Senators Michael McDowell and Sharon Keogan; Níl, Senators Lisa Chambers and Barry WardFootnote:Pursuant to Standing Order 57A, Senator Rebecca Moynihan has notified the Cathaoirleach that she is on maternity leave from 6th February to 18th August, 2023, and the Whip of the Fine Gael Group has notified the Cathaoirleach that the Fine Gael Group has entered into a voting pairing arrangement with Senator Moynihan for the duration of her maternity leave.Amendment declared lost.
Amendment declared lost.
I move amendment No. 12:
In page 12, to delete lines 27 to 34 and substitute the following: “judge to replace him or her.”.
I second the amendment.
Amendment No. 12 seeks to remove the complicated series of provisions in the Bill to ensure that if a person who was originally appointed or elected by the Judicial Council was, say, a barrister when that person was appointed, and was a female or a male as the case may be, that the same criteria should apply to any person who is appointed subsequently, and I refer to section 12(6) which states:
Where a judge, appointed under this section, ceases to be a member of the Commission ... the Judicial Council shall nominate a judge—
... of the same gender as the judge who ceases to be a member ...of the Supreme Court, the Court of Appeal or the High Court.
That provision is ridiculous, to be honest. If you think about it, the Judicial Council may elect a member of the Supreme Court to be a member of the judicial appointments commission. That person may have been chosen by virtue of their talent and yet now we are being told that if that person was a female or a male as the case may be, their replacement has to be of the same gender. I am not going to go down the road of discussing gender.
Indeed.
I think you should.
I am amused at the thought, in terms of recent developments, that people could self-identify for the purpose of this and be appointed, and become eligible. Why gender is so hugely important in this context, and self-identification is irrelevant, I do not know.
What the amendment proposes to do is to delete lines 27 to 34 and just simply say that if there is a casual vacancy that the Judicial Council can elect one of its number to carry on, for the remainder of that person's term without checking their credentials and seeing were they a solicitor, were they a male at the same time of their appointment and are they still a male. All of this nonsense which is floated as progressive. It is not progressive. It is an unnecessary piece of virtue signalling in an absurd way.
I will go back to the point I made about the last amendment and I will only repeat it once. If it is to be the case that a solicitor and a barrister can form a partnership early on in the first year of their careers, and that a barrister can end up being the chief partner in Arthur Cox then how is it relevant that he went to the King's Inns or a Law Society when it later comes to decide who can and cannot be elected to the judicial appointments commission. It just simply does not make sense. It is antiquated. The Legal Services Regulatory Authority is just about to publish a framework to allow barristers and solicitors to form joint firms and I have no doubt some will do so. To say that it mattered after 15 years of practice whether they went to the King's Inns and ate their dinners or whether they got their parchments in Blackhall Place is just complete nonsense.
I thank Senator McDowell for the ongoing homage to the amendments I tabled on Committee Stage and their repetition here on the Order Paper.
The Senator can say that again, when he is ready.
The Cathaoirleach Gníomhach knows I would not want to do that but I acknowledge that I tabled this amendment as No. 17 on Committee Stage, so I cannot but agree with what has been said about it. Again, I believe there is a move here within the Bill to continue what has been provided for in the initial Stages in terms of what I consider to be preposterous purported balances between the two professions in light of the make up of the Judicial Council.
Section 12 currently provides that, obviously, there would be consideration in terms of balancing the persons who are members of the commission in light of their previous professions. Again, as I have already said, I do not that is a reasonable basis on which to balance the commission. Balance is of course important but actually there are much more important balances to be achieved, and some of which have been referred to in terms of the make up of the commission than what the previous profession was. I reiterate what I said in the context of amendment No. 11, that judges are judges and what profession they carried out before they were judges is irrelevant to their role as judges, and it must be so. Were that to cease to be the case, then we would have much bigger problems in terms of the operation of the Judiciary.
Section 12(6) addresses the issue where a casual vacancy arises. It continues the requirement for that balance in a number of respects. Gender being one, in section 12(6)(a). Section 12(6)(b) refers to membership "of the Supreme Court, the Court of Appeal or the High Court ... or of the Circuit Court or District Court" in terms of the court from which they came. Section 12(6)(c) refers to the previous profession that they had. There are two issues. First, I do not agree with the false balance that is being created here. On the paragraph pre provision, I do not particularly have a problem with the paragraph in terms of the courts because that is already laid down in section 12 and I am not sure that they could go beyond that anyway. The difficulty that I have is that this is also seeking to remedy a problem that would only exist for a finite amount of time in any event. So in the event that a casual vacancy arises, first and foremost you are going to have a situation where that judicial commission is only going to endure for a certain period. Consequently, even were this pseudo-imbalance to arise in the context of the person who takes over that position, it would be a short-lived thing. That is not likely to arise on a regular basis or for a long time.
Returning to what I said on Committee Stage about amendment No. 11, I do not agree with this purported balance that is being creating by the Bill. I do not think it is balance at all. It fundamentally misunderstands what judges do and where they come from when they do their job well. I do not agree with this notion that where-----
I must stop the Senator, I am afraid.
Does the Cathaoirleach Gníomhach have to report progress?
No, not on Report Stage.
As it is 6.30 p.m., the debate on this Bill must now be adjourned in accordance with the order of the Seanad today.
Debate adjourned.
When is it proposed to sit again?
At 10.30 a.m. tomorrow morning.
Is that agreed? Agreed.
Cuireadh an Seanad ar athló ar 6.30 p.m. go dtí 10.30 a.m., Dé Céadaoin, an 19 Aibreán 2023.
The Seanad adjourned at 6.30 p.m. until 10.30 a.m. on Wednesday, 19 April 2023.