I welcome the Minister of State, Deputy Mary Wallace, and her officials from the Department of Justice, Equality and Law Reform.
Courts and Court Officers Bill, 2001: Committee Stage.
Acting Chairman
I join in welcoming the Minister of State and her five officials. Unfortunately, members on this side are not accompanied by officials. In procedural terms, it is highly unsatisfactory that a Second Stage debate should end on a Friday and it is unusual that a Bill would be guillotined through the Dáil on a Friday. In view of the Friday sitting, many Members who would have liked to contribute were not available to do so. In his contribution on Second Stage, the Minister for Justice, Equality and Law Reform indicated that he would table technical, as well as substantive, amendments. Those of us who live outside Dublin have to travel home and, at this time, it is useful to be seen occasionally in one's constituency. It is extremely difficult for Opposition Deputies to table amendments to a Bill which concludes Second Stage on a Friday evening by the deadline of 11 a.m. on the following Monday. I telephoned the Bills Office at 10.45 a.m. yesterday with a view to seeing the Minister's amendments - the technical and substantive amendments to which he had referred - but they had not been submitted at that time. Yet, we are all admonished by the Ceann Comhairle to have amendments tabled by 11 a.m. That makes it very difficult to prepare any amendments to the Minister's amendments which were not available to me within the last 15 minutes before the deadline.
I acknowledge the help, capacity, ability and flexibility of the staff in the Bills Office, who obviously worked very late to deal with this matter. It is also difficult for the Minister's staff to deal with amendments received yesterday and to prepare responses to them. While I know we are approaching the end of term, this is a highly unsatisfactory way to deal with a Bill on Committee Stage. I also make that point by way of a half excuse because I only got the consolidated list as I arrived here today, together with a letter from the Chair stating that seven of my amendments, which I have to cross-reference now, are out of order because they involve a charge on the State. This leaves me with no time to reflect on those matters. This imposes extra pressure which Deputies could do without in our efforts to formulate sensible legislation.
Acting Chairman
I thank Deputy Howlin for his comments and I echo his appreciation to those involved in trying to meet deadlines. I hope we can now proceed with amendment No. 1, in the name of the Minister.
SECTION 1.
I move amendment No. 1:
In page 5, lines 29 to 31, to delete subsection (2) and substitute the following:
"(2) Sections 12 to 20 shall come into operation on such day or days as the Minister for Justice, Equality and Law Reform may appoint by order or orders either generally or with reference to any particular provision and different days may be so appointed for different provisions, but those sections or any provision of them shall not apply in relation to proceedings in any court instituted before the day so appointed in respect of the section concerned or the provision concerned.”.
It had been anticipated that this Bill would have been enacted last year and the jurisdiction provisions were intended to coincide with the introduction of the euro but that consideration is no longer relevant. It is normal practice to give a period of notice before increases in jurisdiction come into force and, in this instance, provision is made for the relevant increases to be commenced by way of ministerial order.
Amendment agreed to.
Acting Chairman
Amendments Nos. 2 and 48 are consequential on amendment No. 38 and the three may be taken together by agreement.
I move amendment No. 2:
In page 5, between lines 31 and 32, to insert the following subsection:
"(3) Section 27 shall be deemed to have come into operation on the 1st day of January, 2002.".
Section 7(8)(c) of the Courts of Justice and Court Officers (Superannuation) Act, 1961, provides for surrender, in certain circumstances, of pension in an exact but unspecified amount of Irish pounds. There was a need, therefore, to substitute the term “euro” for that of “pound”. This amendment is purely technical in nature and is made retrospective to 1 January last to coincide with the introduction of the euro. A consequential adjustment is also being made in the Long Title.
Will amounts be rounded up or down on foot of the amendment?
There will be no change.
Amendment agreed to.
I move amendment No. 3:
In page 5, subsection (4), line 36, after "provisions", to insert ", the Courts (No. 2) Act, 1991,".
This is a technical amendment. I am advised that the correct reference to the 1991 Act is not included in the courts Acts citation in the Bill. The amendment is designed to make the citation comprehensive.
It is useful to recall that it is more than ten years since the Courts (No. 2) Act, 1991, was enacted. Amble opportunity has existed in the interim to amend the citation provision where it was thought necessary. It is also useful to recall——
The Minister of State need go no further. This is a technical amendment which suggests the inclusion of the Courts (No. 2) Act, 1991, in the citation.
I am advised that we are not disposed to accept the amendment. However, if the Deputy can show that prejudice has been caused by virtue of the fact that this Act has not been included in the more general citation we would be willing to consider the matter further.
I despair at this type of attitude. We have really important issues with which we must deal in the legislation. It is amazing that we cannot agree a perfectly understandable omission was made from the general citation of courts Acts and that the Act which was left out should now be included. I do not believe I need prove that grievous harm has been caused by this mistake in order for it to be rectified. If the Minister of State cannot accept a technical amendment of this nature, God help us when we come to deal with the more substantive issues. She should prove her mettle before we go any further by accepting this technical amendment which will do no damage to the Bill but will improve it.
The Act in question dealt exclusively with a criminal law matter. For that reason, there is merit in the idea that it should not form part of a more general citation such as the "Courts (Supplemental Provisions) Acts".
Even the Minister of State's officials are becoming embarrassed. I despair. If we cannot even agree on a technical amendment of this nature, I suggest we vote on it.
Acting Chairman
We will delay having a vote until the Minister of State replies.
I am advised that the amendment is not necessary and that it may be counterproductive. However, if the Deputy is that concerned about this matter we will give further consideration to it before Report Stage.
Is there a compelling reason that it should not be included?
We will consider the history behind the general citation to discover what is the position. There must have been some reason for it not being included. We will spend the next week investigating the matter for the Deputy.
In light of the Minister of State's comments, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 1, as amended, agreed to.
Section 2 agreed to.
SECTION 3.
Acting Chairman
Amendment No. 4 is in the name of the Minister of State.
I do not have a copy of the list of amendments which have been ruled out of order.
Acting Chairman
I will inform the Deputy of the position as we proceed.
It would be helpful to know in advance.
Yes, but we are dealing with amendment No. 4 which was tabled by the Minister.
It is fine. I have been given a copy of the list.
I move amendment No. 4:
In page 6, subsection (2), lines 24 to 27, to delete all words from and including "who" in line 24 down to and including "section" in line 27 and substitute the following:
"who is upon the commencement of this section, or was at any time before such commencement, a Commissioner in a whole-time capacity, or a whole-time officer, of the Law Reform Commission".
The purpose of this amendment is simple. Under section 14 of the Law Reform Commission Act, 1975, service by a barrister appointed as a commissioner or officer of the Law Reform Commission is deemed to be practice at the Bar for the purpose of qualification for appointment as a judge. Service by a solicitor who is so appointed is deemed to be practice for the purpose of appointment as a District Court judge. That section is being repealed, but in the Bill, as published, there is a reference to persons who are currently commissioners in a whole-time capacity or who are whole-time officers of the commission. It has emerged that there may be people who served in such capacity in the past and who, if this provision was not amended, would no longer be able to count that service in the way intended by section 14 of the 1975 Act. To ensure an injustice is not done, this amendment will preserve their position also.
Is the Minister of State saying that, in the future, service as a commissioner will not be regarded as either practice at that Bar or practice as a solicitor for the purpose of qualifying for judicial appointment?
Yes.
Why is that change being made? Is this proposal not a direct disincentive for well-qualified practitioners at the Bar or in the solicitors' profession? Will it not discourage them from taking up positions in the Law Reform Commission? Will the Minister of State indicate what inspired this proposal?
The working group on qualifications for the appointment of judges of the superior courts considered that the deeming provision with regard to practice was anomalous and should not be retained. In that context, I should point out that one of the simplifying elements contained in the Bill is the removal of various deeming provisions with regard to practice. These were considered to be needlessly cumbersome and artificial ways of expressing eligibility requirements. It is beyond doubt that the persons comprehended by section 14 of the Law Reform Commission Act, 1975, are not in a position to gain direct experience of the decisions, practices and procedures of the superior courts. It is also the case that they may never have been in practice prior to the appointment and would not intend to be in practice subsequent to their appointment. In appointing individuals to the various courts, the practice requirement is given very strong weight in our legislation.
It is regrettable that, in dealing with qualifications for the courts, the Government is abdicating its judgment in favour of that of the solicitors and barristers professions, which have a vested interest in this area. Both of those professions are controlled by practitioners, all of whom have a vested interest and some of whom may have certain aspirations with regard to their future careers. It is a mistake to take the view that a person who has been a practitioner for a number of years and who takes up a full-time appointment with the Law Reform Commission should not be allowed to count as part of his or her period of practice the work he or she does for the commission. Has the Minister of State examined why this provision was contained in the 1975 Act? I believe it was included to attract to the Law Reform Commission some of the best lawyers in practice in the State in order that they, for a short period of years, could give of their expertise and help modernise and develop our law.
Much of the law which the Law Reform Commission deals with is law in practice before the courts such as the law of defamation and aspects of criminal and family law. Many of the reports it has published deal not just with substantive changes, but the substantive changes as proposed would frequently have less authority and little merit if, within the Law Reform Commission, there did not lie a degree of practical expertise as to how the law is being administered in our courts. I have no doubt the 1975 Act had the intention of trying to attract people of expertise in the litigation and practice areas into the Law Reform Commission for brief periods.
This provision forecloses on that and it is a bad judgment. It came out of the expert group, as the Minister referred to it. That group was set up by the former Minister for Justice, Deputy Owen, as a consequence of pressures in a previous composition of the committee, to allow solicitors to be eligible for the superior courts. That group was set up so that the two arms of the profession, which were at war with each other, could work out a compromise that would allow the matter to be dealt with politically by Government. Governments of every hue and colour seemed to be intimidated by the roars of the legal profession, particularly one branch of that profession. Both branches had vested interests in ensuring the continued exclusion of academic lawyers from the Judiciary was maintained and in having a look at who else falls into the area of expert lawyer but non-practitioner - who would currently qualify for judicial appointment - whom they could exclude.
The public interest is the exact opposite to what the Minister proposes here. I disagree with it though I know I have no way of getting my view supported as there is a Government majority on the committee. Since 1975 it has been possible for members of the Law Reform Commission to count in their years of service to qualify for judicial appointment. Can the Minister of State point to a single problem that has arisen in practice as a consequence of that provision being part of our law? Has there been a single person appointed to our courts where periods working in the Law Reform Commission has counted as part of their eligibility and qualification years? Has there been a single appointment in which this situation has given rise to difficulties? Can the Minister of State square the fact that the person who has chaired the Law Reform Commission from day one has always been a judge either of the Supreme Court or High Court - sitting judges? Some of them, when chairing the Law Reform Commission, did not sit in courts but devoted themselves full time for two to five years to the Law Reform Commission and then went back to the courts. Is anyone suggesting that they took time out for the Law Reform Commission rendered them incapable of properly performing as judges? Some others, such as the current chairman of the Law Reform Commission, have on occasion, despite being chairman, sat as members of the High Court to conduct hearings on occasions when that court has been hard pressed due to the shortage of judges.
It seems odd that where we accept that we appoint members of the Judiciary to the Law Reform Commission regularly, some of them have taken time out from acting as judges for a number of years and it is appropriate that they go back to sitting as judges, while others have tried to marry still sitting for the occasional case with being chair of the Law Reform Commission. However, we are saying here that anyone else who joins the Law Reform Commission should not qualify. I am not aware of public concern about the position which has existed since 1975. This is not an appropriate change to introduce and there is no valid basis for doing so other than as a comfort blanket to the two professional bodies which no doubt concluded this was a good idea behind closed doors in the expert group as they tried to work out their differences.
Deputy Shatter has made a compelling argument although I felt there was merit in the Minister's argument when I first heard it. There would be more academically minded people working in the Law Reform Commission who, by virtue of the important analysis of international legal practice or precedent in a particular area, might be divorced while there from the normal discourse of the courts. They might not have experience of the courts and for that reason I felt the level of fairly focused attention is not the same and one is not comparing like with like - the general practice of understanding court decisions and development as opposed to the more academic analysis of international law which would often be the focus of the Law Reform Commission. In essence there is merit in both arguments so I need to be convinced by the Minister that her position is valid.
Regarding Deputy Shatter's question about the position since 1975, nobody has ever been appointed to the High Court with reliance on this provision. If the aim is to attract practitioners of the kind mentioned by Deputy Shatter to the Law Reform Commission, that has not been successful because that is not how it has worked. As has been said, the President of the Law Reform Commission is generally a serving or retired judge and the amendment in no way impacts on his or her return to the courts - I do not know if that is clear. It does not impact on the return to the courts, though Deputy Shatter indicated he understood that. It is a matter related to the appointment of new judges and, as Deputy Howlin said, practice is the essential test in terms of qualification. It is not that they should not be able to use the service but that they can count the service with the Law Reform Commission as practice in the appointment of judges.
Deputy Howlin was correct in his analysis of the presentation. There is a link between this issue and the fact that academic lawyers generally are not eligible for judicial appointments. What we are saying here is that since 1975 this provision has not been involved in the appointment of a judge.
It is my recollection that a number of people who have been members of the Law Reform Commission - perhaps part time - have made substantial contributions while there are judicial members who have been there full time. I recall John Buckley, who was a commissioner in the Law Reform Commission and who was subsequently appointed a judge in the Circuit Court. He was an extremely good judge there and retired in the past 12 months.
The current Chief Justice was President of the Law Reform Commission for five years. Mr. Justice Lavin was President of the Law Reform Commission for a couple of years, going to it from the High Court and he has now gone back there. Mr. Justice Brian Walsh of the Supreme Court was President of the Law Reform Commission and currently Mr. Justice Declan Budd remains a member of the High Court.
I do not buy into the argument that somebody who has been a practitioner and who becomes a full-time member of the commission, by virtue of operating full time for a period, in some ways becomes less informed and less qualified to be appointed to the Judiciary than other practitioners. I believe the reality, on occasions, is the reverse. By virtue of not having the everyday pressures of being involved in practice, members of the Law Reform Commission who are full time develop a greater expertise in particular areas of law and particular specialities than do many practitioners. I suggest the emphasis on practice, in the way the Minister of State is putting it - which I know is the emphasis the professional bodies of the two professions want to put all the time - is not in the public interest. I believe that approach is wrong but I do not believe I am going to convince the Minister of State of this.
We need a more radical approach in this area and the Minister of State should not row back on the provision of the 1975 Act. It is bizarre to suggest, on the one hand, that if a person is seconded from the High Court to the Law Reform Commission for five years, that does not in any way diminish his or her capacity to act as a High Court judge on returning to that court five years later, whereas, on the other hand, if an eminent practitioner is taken out of practice for five years while working for the Law Reform Commission, he or she is, in some way, legally disadvantaged or less qualified to be appointed as a judge. I simply regard that as a wrong attitude and bad thinking. It is an endemic consequence of the manner in which the two professional bodies deal with this area and it is regrettable that that type of thinking is accepted as authoritative by the Department and the Minister for Justice, Equality and Law Reform. However, I do not believe that the Minister of State is about to change her mind and I will not pursue the matter further.
I am not saying they should not qualify but rather that that service should not be counted and that is no reflection on the service of the Law Reform Commission. Many of the people to whom Deputy Shatter referred would have been on the Bench and it is simply a matter that, when counting service in the context of appointment of a judge, that particular service, because it does not constitute practice, is not counted.
It should be counted.
Amendment put and declared carried.
Section 3, as amended, agreed to.
I understand that amendments Nos. 5 to 10, inclusive, have been ruled out of order on the basis that they involve a potential charge on the Revenue. This relates to a whole new section I wished to insert in relation to judicial conduct. I know I may be out of order but, if I may, I wish to make a few comments. I intend to challenge the ruling on some of the amendments. Some simply propose to repeal sections and I do not see how repealing sections can be out of order. With the indulgence of the Chair, judicial conduct is a matter of great concern to all sides of the House. The Minister for Justice, Equality and Law Reform put forward a constitutional amendment to deal with the issue by providing for some new accountability in relation to the conduct of judges, so that the wind of openness and accountability that has blown through the Civil Service and public administration at every level - and through these Houses, in the context of our ethics legislation and electoral Acts reforms - would also affect the Judiciary.
As I indicated in my Second Stage contribution, getting the balance between requiring standards of those who hold judicial office and ensuring they are completely independent is a balance that must be carefully reached. It is not something we can trample on and I would have thought the amendments I tabled would meet that balancing requirement.
If I may refer to the particular amendments in an overall sense, the establishment of a judicial council could well impose a charge on the State. However, I do not accept that as a basis for excluding, for example, a provision that "Every judge shall uphold at all times the standards set out in this Act and in any code of conduct thereunder, the dignity and high standing of the office of judge and his or her own standing as a holder of that office" and so on, as set out in the first of those amendments. I do not know who made the ruling that that involved a charge on the State. In relation to amendment No. 5, if one takes away the requirement for a judicial authority, how does legislating for a code of conduct come into the ambit of causing a charge on the State?
Acting Chairman
In response to DeputyHowlin's question, I have a note which may be helpful. It states:
Amendments Nos. 5, 6, 7, 8, 9, 10 and 47, in the name of Deputy Howlin, have been ruled out of order as they involve a potential charge on the Revenue. Amendments Nos. 7 and 47 provide for the establishment of a Standards in Judicial Office Tribunal and involve a range of provisions concerning, inter alia, the resourcing and funding of the tribunal. Amendment No. 5, in a proposed new section, sets out standards of judicial behaviour and subsection (4) makes special provision for the furnishing of statements to the proposed tribunal. It, therefore, falls as consequential on amendment No. 7. Amendment No. 6 provides that breach of the standards provided for by amendment No. 5 constitutes misbehaviour, for the purposes of the Bill and the Constitution. The amendment falls as it is consequential on amendment No. 7. Amendment No. 8 provides for the making of complaints to the tribunal. Subsection (8)(b) of this new section allows the tribunal to recommend a payment by the Minister for Finance of compensation to persons affected by judicial misbehaviour. It, therefore, involves a potential charge on the Revenue. Amendment No. 9 provides for the repeal of existing legislative provisions concerning the monitoring of judicial conduct. This has been ruled out of order as it seems clear that it is consequential on amendment No. 7 and, therefore, involves a potential charge on the Revenue. Amendment No. 10 provides for the interpretation of terms used in the foregoing amendments and it therefore falls as it is consequential on amendment No. 7.
Is that helpful to the Deputy?
It is helpful in that it explains the very tenuous grounds on which the amendments were ruled out. The exclusion of the amendments is entirely predicated on the establishment of a tribunal - the Judicial Conduct Tribunal - so, if I remove the reference in the first, very long amendment setting our judicial conduct standards and remove the reference in section 3(4) of that amendment to the tribunal, all would be in order. The notion that even amendment No. 9, which involves nothing more than repealing sections of existing legislation, is a consequential link to the tribunal, is particularly tenuous. I am anxious that we would have a debate on judicial conduct and I ask the Chair to indicate how we can go about that.
I have a difficulty in relation to the scheduling of this Bill. I had no opportunity to engage with the Bills Office in relation to amendments being ruled out of order. We had a debate last week in relation to the Courts (Amendment) Bill, which I submitted, for the appointment of three additional judges. One would assume that a measure concerning the appointment of three additional judges would have been ruled out of order because it involved a charge on the State. However, it was accepted, very logically, that it was simply an enabling provision which would not, of necessity, involve a charge on the State unless that enabling provision was actually exercised. That might be regarded as a tautology but it was accepted by the Bills Office and, accordingly, I was able to move the Courts (Amendment) Bill, which has been circulated. On the same logic, the tribunal is an enabling provision that does not necessarily have to be either established, in the first instance, or resourced. I am willing to drop the reference to the tribunal if the general conduct issues can be discussed. May I amend my amendments?
Acting Chairman
I have been informed that in a Private Members Bill, a certain amount of latitude is allowed but the position with regard to amendments is much more circumscribed.
I do not want to ruin my future chances by quoting loose precedent. I would like the issue of judicial conduct to be a subject of debate and since the only issue that excludes it, much of which is a detailed amount of work by virtue of reference to the tribunal, I would like your guidance on amending the amendments so as not to refer to statutory judicial contract tribunals.
Acting Chairman
There would be a difficulty with regard to most amendments relating to that issue at this stage. Is the Deputy referring to amendment No. 9——
No, amendment No. 9 cannot stand alone. It would be pointless. It is a catch 22 situation when the Chair says there would be a difficulty with regard to it at this stage. It is difficult to do it at this stage because I had only yesterday to table these amendments and no time to debate with the Bills office. I might have had the chance to debate this matter and redraft amendments that would have been in order but I did not have that opportunity. I was only notified of their being out of order when I arrived at the committee. That is a problem with bulldozing legislation through.
Acting Chairman
I take the Deputy's point. However, they are all based on a tribunal which has a potential cost and therefore, have to be ruled out of order.
Amendment No. 5 refers to a tribunal in subsections (3) and (4) but the first part of the amendment simply refers to basic duties and conduct of judges. There is no charge in requiring judges to comply with a code of conduct, to engage in conduct which is appropriate to a judge, and to observe the ethics and etiquette of his or her office.
Acting Chairman
I have a difficulty in so far as they have been ruled out of order.
Can the Chair see my frustration? Had the issue of the tribunal been the only net issue, I could have redrafted this amendment in a manner which would have been in order but because of the bulldozing of it, I did not have the time to do that. One will have to acknowledge it is unfair.
I wonder if Deputy Howlin's difficulty could be resolved as follows: given that it is clear consideration of the Bill will not be completed today, I assume if we reschedule for next week it will be open to Deputies to table additional amendments as they deem appropriate. This would allow Deputy Howlin to resubmit amendments dealing with issues of judicial conduct in a manner that does not create the present difficulty and would allow the matter to be debated on the next occasion. That suggestion may facilitate the committee in addressing these issues which are of some importance.
Acting Chairman
May I take it that that could be considered?
My problem is that we will finish sections. I am not sure if we can find an appropriate place but I will do my best. I do not want to delay consideration of the Bill for this but I am making the general observation that we were disadvantaged considerably in the way the Committee Stage is being handled. While the normal practice and precedent in the House is that there is a two-week gap between the conclusion of Second Stage and the commencement of Committee Stage we did not even have one working day. I do not recall Second Stage of any Bill concluding on a Friday evening and being scheduled for Committee Stage on a Tuesday with amendments required to be in by 11 a.m. on Monday. This is a huge disadvantage and breaks with precedent in the House. Now I am being disadvantaged. There is no point in my arguing about it but, probably, we should not have agreed to take it today.
Acting Chairman
Would it be helpful if the Deputy could be allowed to have further discussion with the Bills Office with regard to redrafting the amendment for Report Stage?
The reality is that about six or seven sitting days remain. If this Bill is concluded there will be about an hour for Report Stage between 11 p.m. and midnight one evening. This will be bulldozed through with a dozen other Bills in the last three sitting days of the Dáil if we get to that stage. Therefore, there is no question of any of these matters being discussed. It is a bad way of making law. The Chair is in a bind.
Acting Chairman
It has been suggested to me, and this is a further bind on the Deputy, that if Committee Stage was finished, say, next Thursday there would be a lapse of time which would, perhaps, allow the Deputy to have that kind of consultation before it comes back into the House.
There will not be time in the House. We know that. I would prefer to take my chances in the committee where we have some flexibility. I shall do my best to redraft. I cannot withdraw the amendment as it was ruled out of order. I shall do my best to find a mechanism to redraft and come back, assuming there will be some flexibility and understanding of the bind, which was not of my creation, that has ruled this amendment out of order.
Acting Chairman
I hope the committee will try to allow the Deputy that type of flexibility. Unfortunately, as of now, I have to rule out of order amendments Nos. 5, to 10, inclusive.
Amendments Nos. 5 to 10, inclusive, not moved.
SECTION 4.
Acting Chairman
Amendment No. 11. If amendment No. 11 is agreed, amendment No. 13 cannot be moved. Amendments Nos. 1 and 2 to amendment No. 11, on the first additional list, are consequential. Amendments Nos. 13 and 18 are related.
Is there is no second additional list?
Acting Chairman
Only one.
Where are they?
Do we have an extra copy?
Amendment No. 2 to amendment No. 11 is in substitution for amendment No. 14.
Acting Chairman
Yes, and amendments Nos. 13 and 18 are related. Amendment Nos. 1 and 2 to amendment No. 11, amendment No. 11, amendment Nos. 13 and 18 may be discussed together by agreement. Is that agreed? Agreed. The question on the main amendment should be put after the amendments to it have been disposed of.
I move amendment No. 1 to amendment No. 11:
In subparagraph (i) of the proposed new paragraph (b), in the seventh line, after “Communities”, to insert “, a judge of an International War Crimes Tribunal established under the International War Crimes Tribunals Act, 1998, of the International Criminal Court, or of the International Court of Justice”.
My original amendment No. 14 which I have tabled now, as an amendment to the Minister's amendment, is No. 2 to amendment No. 11. It concerns an important issue. The purpose of the amendment is to ensure that the Government could not put an unqualified person on the Supreme Court or High Court by first appointing him or her to the European Court. The import of what I want to do is that they would have met the requirements for appointment before being appointed.
Acting Chairman
The Deputy is now talking to the amendment to amendment No. 11.
Amendment No. 2 to amendment No. 11.
Acting Chairman
Yes, and that is in substitution for amendment No. 14, is that right?
Yes. Do you want me to talk to amendment No. 1?
Acting Chairman
Yes.
Amendment No. 1 deals with an important issue contained in amendment No. 12 in my name which concerned a significant omission in the original Bill. I sought, after "Communities" to insert ", a judge of an International War Crimes Tribunal established under the International War Crimes Tribunals Act, 1998", an important international court recognised in Irish law. In the Bill as published by the Minister, there is provision for service on the European Court but not on this international court. Theoretically we are looking after judges of the European court but there is de facto an Irish judge on the Yugoslav war crimes tribunal of inquiry into alleged crimes in Yugoslavia, Maureen Clarke, Senior Counsel, a most distinguished legal person, so it seems correct that such service should also be covered by this enactment.
Ireland is not yet party to the International Criminal Court or the International Court of Justice but there is a commitment from this Administration, and certainly from this side of the House, that we should be party to it. In order to be comprehensive and to recognise the important work done by the international war crimes tribunals and the International Criminal Court, and in particular the work done by a distinguished Irish legal person, Maureen Clarke, it would be appropriate that this be encompassed in it. That is the import of amendment No. 1 in my name.
We are taking a number of amendments together for discussion. I have tabled other amendments that are relevant but Deputy Howlin and I are attempting to address the same issue. I hoped the Minister's amended amendment, which we now have, would allow for the issue of concern to both of us to be addressed, but it does not appear to do that. Having made comments that no doubt upset the Bar Council, I praise it for its submission on the Courts and Court Officers Bill where, in the context of the section we are now discussing, it deals with two particular issues which are of importance. The Bar Council points out that in the section as originally drafted, and it appears to remain in the Minister's amended provision, there is a serious lacuna in that appointment as a judge of the European Court of Justice, a judge of the court of first instance, as Advocate General or as a judge of the European Court of Human Rights is of itself a sufficient qualification for appointment to the superior courts in Ireland without any requirement with regard to practice in the Irish courts. It goes on to say that this means a person could be appointed to the Irish superior courts even though he or she had never practised in Ireland either as a barrister or a solicitor, and if they had no familiarity with Irish law and/or practice and procedure in Irish courts.
We have this rather odd provision from the Minister to exclude from judicial appointments a practitioner before the Irish courts who takes some time out from practice to work full time as a member of the Law Reform Commission, which would focus entirely on Irish law and the need to reform it, but apparently he is willing to enact a provision into our legislation to appoint a French member of the European Court of Justice who has never practised in Ireland and render him or her eligible for appointment to the High Court or the Supreme Court. That is bizarre and the Bar Council was right to draw our attention to this lacuna in the legislation.
It is regrettable that the Minister's amended amendment does not adequately deal with this lacuna in the appropriate way. More importantly, Deputy Howlin makes the point that the position of Irish lawyers serving as judges of international criminal courts needs to be addressed. That was also dealt with by the Bar Council which, in terms of eligibility for appointment to the superior courts, specifically highlighted the position of Maureen Clarke, an eminent Senior Council, who is now sitting as a judge of the International Criminal Court investigating war crimes in the former Yugoslavia. I do not wish to unduly focus on Maureen Clarke but she has been practising at the Bar for considerably longer than 12 years and would have qualified for appointment to the High Court or Supreme Court. Her appointment to the International Criminal Court should not get in the way of such appointment and if she had only been practising for ten years and had been appointed to the International Criminal Court, she should not be in a position where the years sitting as a judge of that court would not be counted as rendering her eligible for appointment.
It is important that we are seen to be fully supportive of the International Criminal Court and of the role it is to play. We have had a constitutional referendum on this issue to allow us, as a state, to participate in that court and in some ways we have further diluted our sovereignty with regard to the remit given to that court in the context of this State. It is bizarre that the Minister has not included references to it in either the original section or in the section now before us. Deputy Howlin's proposed amendment attempts to deal with that issue. My proposed amendment No. 18 also attempted to deal with that issue and I hope we might get a positive response from the Minister of State to the effect that she will take on board our concerns in this context.
With regard to our amendment, on further examination it emerged that the new section 5(2)(b) of the 1961 Act went beyond the original intention with regard to the eligibility of a judge of the court of justice, etc. to be appointed as a judge of the Supreme Court or the High Court. As the other amendments tabled suggest, the text as it stands appears to allow any such judge to be so eligible, and this was not the intention. We are satisfied that the amendment we propose rectifies that position.
We listened carefully to the point made by Deputies Howlin and Shatter with regard to broadening the scope of the provision dealing with those who serve in various capacities in a variety of international courts and tribunals. The points were well made and they deserve closer examination. I suggest that we consider them between now and Report Stage when the Deputies can bring forward their own amendments.
My difficulty is that we will not have time on Report Stage. The reality will be that——
The Deputy has made his case.
If the Minister is not minded to make any changes we will not be able to make the argument against the case. I have no doubt this will be bulldozed through on Report Stage with very little time for debate because of the scarcity of time remaining in this Dáil.
It was to reassure the Deputy——
Why can the Minister not just accept the amendment? Is there something technically wrong with the drafting of the amendment?
This is not a stalling tactic on our part.
Will the Minister accept the amendment and if she wishes to bring forward her own improved amendments on Report Stage, we would be happy to facilitate her in doing that.
The points the Deputy has raised are desirable and the matter will be considered with a view to accepting the amendment. I assure the Deputy it will be considered in a positive way. He can quote that on Report Stage.
We will not get a chance to quote anything on Report Stage.
We are considering this amendment in a positive way. We just need to check up on something. We cannot accept it today.
I support Deputy Howlin in what he is saying. I specifically support his amendment, which is an amendment to the Minister's amendment, and my amendment was an amendment to the original amendment tabled by the Minister, but the Minister has since tabled yet another amendment. The objective sought by Deputy Howlin and that sought by me are the same. The amendment tabled technically fulfils the function of the objective we are trying to achieve.
The Minister of State may be on this side of the committee room in a few months' time and Deputy Howlin or myself, or both of us, may be on the far side. It is extremely frustrating and undermines the purpose of Committee Stage of a Bill if an amendment tabled by a Deputy, with which the Minister agrees in principle, is not accepted on that Stage.
I support Deputy Howlin in that if there is a technical problem with the amendment he proposed, there is no reason it could not be adopted in its present form and any technical amendment required could be made on Report Stage. I constantly participate in Committee Stage debates where Ministers table amendments they think are right but further amend them for technical reasons on Report Stages. Why can constructive proposals from Opposition Deputies not be treated with the same respect and be dealt with in the same way? It is not the case that every amendment the Minister of State will make to this Bill today will be sacrosanct?
I predict that some of the amendments we will incorporate in the Bill today from the Minister's side will end up being further amended on Report Stage while further thought is given to some aspect of the amendments. There is no reason we cannot do our business in a different way. There is a knee-jerk reaction from the Government to automatically vote down or stall the acceptance of amendments tabled by Opposition Deputies so that the Minister can produce the same amendment in his or her name, as if his or her political status would be instantly undermined and the world would collapse if he or she accepted an Opposition Deputy's amendment.
I support Deputy Howlin's amendment. If there is to be any purpose to Committee Stage debates, it is time we had a different attitude. It makes the constant bleating of the Minister, Deputy Dempsey, about the need for Dáil reform somewhat laughable. This is a classical example of why Opposition Deputies should probably not bother with these sessions at all.
In terms of what Deputy Shatter said, I hope the opposite will prove to be the case. The points raised by the Deputies are considered on this side to be helpful. The only reason we are not in a position to accept these amendments today is that we need to examine the statutes governing the establishment of the various courts. Deputy Shatter mentioned the International Criminal Court and Deputy Howlin included others. We need time to analyse the position more critically. I am saying, in as positive a way as I can, that it was worth the Deputies' while tabling these amendments and raising these points. We hope to be able to respond to this matter in a positive way on Report Stage, but we must examine the position behind the scenes. I cannot be any more helpful than that.
I am more and more convinced that we were wrong to accept the taking of Committee Stage of this Bill today. If, in essence, the Minister is saying that she accepts entirely the principle of these amendments but has not had adequate time to check the statute basis for the individual courts, I point out to her that the idea of having a fortnight between the taking of Second Stage and the taking of Committee Stage is to enable the Minister responsible to come here with an analysis of Committee Stage amendments. I do not blame the Minister of State for not having that because she only has these amendments since 11 a.m. yesterday. We have had less time because, to my knowledge, the Minister's amendments were tabled after that. We literally only received the first list of amendments to amendments today and I submitted two amendments yesterday evening.
It not good enough for the Minister of State to say that she has to reflect further on these amendments and check things out. She should have had the time to do that. That is the whole idea of Committee Stage. We are not making sausages, we are making law. We should have adequate time for debate and for the Minister to reflect on purposeful amendments from this side.
I am disappointed the Minister of State cannot simply say, "Yes, we accept the amendments, they are good and if they are technically deficient, we will come back and correct them on Report Stage by way of a ministerial amendment." I know what will happen on Report Stage. If six months remained of this Dáil term, I might have some expectation of it. All Opposition amendments will be brushed aside by way of a motion that will be put within an hour of the commencement of Report Stage to the effect that amendments laid down or agreed to by the Minister are hereby made and that the Bill is deemed to be passed, and that will be it. If people put a great deal of effort into the preparation of work such as this, they deserve better. With all due respect to the Minister of State, they deserve more than the quasi patronising view that it was worth their while doing it. This is Parliament and they deserve to have such an amendment accepted.
The Deputy has asked can we not say that these amendments are good. That is what we are saying. We are not only saying that, but that points were well made by the Deputies.
Is the Minister of State allowed to accept amendments?
What we are saying is——
I am asking the Minister of State a serious question.
We have heard what the Deputies had to say on Committee Stage.
No, I am making a real point. It is a point concerning the Minister not being here. I do not want to be disrespectful, but is the Minster of State allowed accept amendments or has she working instructions not to accept them?
No, this has nothing to do with accepting amendments. I am simply saying, as I explained clearly, that we must look behind the scenes regarding this amendment.
Sure, but I am asking a general question. Is the Minister of State allowed to accept amendments?
I am saying I clearly accept what——
Through the Chair, is the Minister of State allowed——
I did not have to make a telephone call to Kerry to find out if it was okay to say that. I am simply saying to the Deputy——
Is the Minister of State allowed to accept any amendment in toto?
Yes.
Why will she not accept these ones?
Because, as I explained, we must examine the background to them.
I do not want to divide the House on this.
The reason I was so positive about the Deputy's amendment is that I want him to know that I am not saying no to it simply for the sake of saying no. I want to reassure him as best I can on that. I am saying that we will seriously examine this amendment and we hope we will be positive regarding it on Report Stage.
That is not good enough for me. I want the amendments made. I could divide the House on them, which would upset Deputy McGennis, but I am loathe to do that. I do not understand why the Minister of State cannot simply accept these amendments and if there is a deficiency in them she could come back on Report Stage with her own amendment. This is a straightforward issue which goes to the core of what committees are about. Otherwise, as Deputy Shatter said, we are wasting our time.
We have to look behind the scenes regarding this amendment in terms of the qualifications required to serve in different courts, such as the courts we are talking about.
Is that a difficulty?
That is what I am saying to the Deputy. We will come back on Report Stage. We will examine the qualifications required to serve in the various courts. I am not being in any way negative about this. I cannot accept the amendments until I am sure about the qualifications required for those who serve in those courts. The Deputy would not want me to accept these amendments if there was difficulty concerning one of the courts. It is necessary to check the background to the courts and the qualifications required to serve in them. I am not negative regarding the amendments. It would be much easier for me to have ruled them out at the start. I am saying that they are not being ruled out.
I could call a division and we would see whether the numbers would carry the day. I will not push this amendment to a division if the Minister of State tells me not that she is positive regarding this amendment but that the principles of it are acceptable to her and that she will come back on Report State with an amendment incorporating those principles.
I thought we made it clear that we do not have a problem with the principle.
I want a commitment that there will be an amendment on Report Stage. I can table an amendment on Report Stage but it might not be reached - a motion will be read out by the Ceann Comhairle at the end of Report Stage saying that all amendments tabled or accepted by the Minister are hereby made. If the Minister of State tells me she will bring forward an amendment incorporating that principle, I will not seek a division. If she does not give me that guarantee, I will seek a division.
I guarantee that if no difficulties emerge, an amendment will be brought forward on Report Stage. I do not know now, without checking, that there will not be a problem but if there is no problem, I will be happy to bring forward an amendment. I might even be happy to accept the Deputy's amendment on Report Stage. However, we have to check it out and we will communicate with the Deputy between now and Report Stage, if that is any help.
Is that as much as I will get?
Acting Chairman
There is acceptance in principle.
I will withdraw amendment No. 2 to amendment No. 11.
We accept the principle of it.
Amendment No. 1 to amendment No. 11, by leave, withdrawn.
Amendment No. 2 to amendment No. 11 not moved.
I move amendment No. 11:
In page 6, to delete lines 40 to 44, and in page 7, to delete lines 1 to 7 and substitute the following:
"(b) A person who-
(i) is or was at any time during the period of 2 years immediately before the appointment concerned a judge of the Court of Justice of the European Communities, a judge of the Court of First Instance attached to that Court, an Advocate-General of the Court of Justice of the European Communities or a judge of the European Court of Human Rights established under the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950, and
(ii) was a practising barrister or a practising solicitor before appointment to any of the offices referred to in subparagraph (i) of this paragraph, shall be qualified for appointment as a judge of the Supreme Court or the High Court.".
Amendment agreed to.
Amendments Nos. 12 to 14, inclusive, not moved.
Acting Chairman
Amendment No. 17 is related to amendment No. 15 so amendments Nos. 15 and 17 may be discussed together. Is that agreed? Agreed.
I move amendment No. 15:
In page 7, line 9, to delete "2" and substitute "4".
I have reflected on this issue and I propose that we revert to the status quo. The Minister proposes to change the existing requirement of four years service on the Circuit Court before a Circuit Court Judge could be appointed to the High Court. On Second Stage, I thought there might be some merit in the Minister’s wish to change the requirement. However, the High Court is an extremely important court. It makes decisions of a different order from decisions made in the Circuit Court. I do not wish to sound disparaging or pejorative about any court or judge; extremely distinguished judges have come from the Circuit Court. Judge Catherine McGuinness was a Circuit Court judge before being appointed to the High Court and she is now a distinguished member of the Supreme Court. She has a wonderfully distinguished judicial record.
Nevertheless, two years service on the Circuit Court is inadequate to give people experience and to allow value judgments to be made on them or to allow the Judicial Appointments Advisory Board to consider moving them to the High Court. It is safer to retain the existing four years service requirement. I did not hear and do not know of any compelling reason for changing it, unless there is a particular judge the Minister wishes to promote but who has less than four years service. In general, four years is a reasonable period of service on the Circuit Court before being considered for appointment to the High Court, a court that is increasingly important in the context of important judicial and public administration decisions in this country.
Amendment No. 17 seeks to amend section 17 of the 1995 Act. The amendment deals with the problem where a Circuit Court judge, who has no real experience of High Court litigation, might be appointed to the High Court. The amendment proposes that in promotion cases the board will advise the Minister so as to avoid such a situation. The essence of the amendment is:
Where the Government proposes to advise the President to appoint to judicial office a person who is for the time being a judge of the High Court or who is eligible for appointment to the Supreme or the High Court under subsection (2)(b) of section 5 (as amended by section 4 of the Courts and Court Officers Act, 2002) of the Act of 1961, the provisions of section 16 of this Act shall not apply.
(2) Where the Government proposes to advise the President to appoint as a judge of the Supreme Court or the High Court a judge of the Circuit Court pursuant to subsection (2)(c) of section 5 (as amended by section 4 of the Courts and Court Officers Act, 2002) of the Act of 1961, the Minister shall first consult the Board.
Before a Circuit Court judge is appointed under this section to the High Court, therefore, the Minister would be obliged to discuss the matter with the Judicial Appointments Advisory Board. The amendment continues: "The Board shall recommend a person to the Minister pursuant to subsection (3) only if the Board is of the opinion that the person has an appropriate knowledge of the decisions, and an appropriate knowledge and appropriate experience of the practice and procedure, of the Supreme Court and the High Court."
I prefer to retain the existing position where four years service in the Circuit Court is required before one is available for appointment to the superior courts. However, amendment No. 17 provides that where an appointment is to be made by the Minister under the new provision, the Minister would be required to consult the Judicial Appointments Advisory Board, which would give an opinion as to the candidate's relative knowledge and experience of practice and procedures in the superior courts. It is a safer set of circumstances. I would not be cavalier in relation to appointments to the superior courts. The High Court and Supreme Court make vital decisions relating to public and personal liberty and rights under the Constitution and there is an increasing trend in that regard. I hope the Minister will give due consideration to my proposals. I hope she listened to my arguments.
I listened. I am satisfied the approach taken in the Bill, whereby a Circuit Court judge who has served as such for not less than two years is eligible for appointment as a judge of the superior courts, is a reasonable one and there are no proposals to revert to the existing statutory provisions.
There are two different routes to becoming a judge and it is important to understand those routes in order to understand what we are trying to do here. The Act provides that a solicitor of ten years standing is eligible for appointment as a judge of the Circuit Court and, in addition, provides that a judge of the Circuit Court of four years standing would be qualified for appointment as a judge of the Supreme Court or High Court. A solicitor, therefore, will have a total of 14 years experience. On the other hand, a former barrister serving as a Circuit Court judge is deemed to be in practise at the Bar and could therefore be eligible for such appointment in reliance upon that fact. A barrister with 12 years experience in the Bar, therefore, could go straight from the Circuit Court to the High Court. The two routes are different.
In section 4 we are taking the opportunity to ensure that all Circuit Court judges should be eligible under a single provision rather than having the difference between barristers and solicitors. I presume Deputy Shatter will see this as a good idea because it is good for solicitors.
I have learned never to presume to know Deputy Shatter's opinion.
I am aware of his strong support for solicitors so he might prefer to see solicitors put on a level playing pitch. That is what we are doing here.
The Minister's reply does not deal with the points I made. Somebody can be eminently suitable for appointment to the Circuit Court but the Circuit Court is a different court of jurisdiction from the High Court. By lowering the qualification period for appointment to the High Court from the Circuit Court, the Minister is implying that there is an almost automatic promotion grade. There is a discernible and growing difference between the two courts and their jurisdictions. People could be eminently suitable and superb Circuit Court judges, but they would not be suitable even after 40 years' service for appointment to the High Court. One could say that is an argument against the case I am making. The existing provision where four years' service is understood to be required before consideration is given to appointment to the superior courts is a good principle. It does not make a compelling case to move that back for the reasons stated by the Minister of State.
I am sure the Minister of State will correct me if I am wrong, but I think it requires ten years' practice as a solicitor or barrister to be appointed to the Circuit Court. My recollection of the four year rule was that it was introduced as a proposal in the context of a probationary period to ensure that if a solicitor is appointed to the Circuit Court, he or she must be in the Circuit Court for a minimum of four years before being appointed to the High Court. That was based on the urgings of the Bar Council about the alleged lack of competence of solicitors to be High Court judges. That is the origin of the four year rule. The four year rule did not have any function other than that. That rule does not have a basis and was not part of our legal system prior to 1995. I am sure the Minister of State will correct me if I am wrong.
In theory under the legislation, if a barrister or solicitor practices for 12 years, it will qualify him or her as a possible appointee to the High Court if he or she makes an application through the Judicial Appointments Advisory Board and is recommended. It would be anomalous to have a position whereby if someone practices as a solicitor for 12 years, he or she could be eligible for direct appointment to the High Court, but if he or she practices as a solicitor for 20 years and is appointed a Circuit Court judge, he or she would have to serve another four years as a Circuit Court judge before being eligible for appointment to the High Court Judiciary.
There is a strong case to be made for abolishing the four year period in its entirety and for not having a two or four year period once someone is appointed to the Circuit Court Judiciary on the basis that the Government will not abuse its position or make a fool of itself by appointing someone of ten years' practice to the Circuit Court and the following day to the High Court. The logic is that if we retain the timeframe on the basis that in theory after ten years' practice someone might be appointed to the Circuit Court, we should require that he or she serves two years as a Circuit Court judge before he or she is rendered eligible for appointment to the High Court. If we have to retain it, I would prefer a more complex provision and that the service of two years in the Circuit Court should only apply to someone appointed to that court who has been a practitioner for no more than ten years.
What we are doing does not make sense. It makes less sense to retain the four year rule than to introduce a new two year rule. I do not disagree with the Minister of State's proposal. Four years does not make sense. Two years makes some sense, but it does not make sense in the context of some people who are appointed to the Circuit Court. It is probably not necessary. I will not support Deputy Howlin's amendment in that context.
I am not surprised the Opposition is divided on this issue and that Deputy Shatter supports the Minister of State's view. However, if a qualifying solicitor or barrister is being appointed to the High Court, one goes through the Judicial Appointments Advisory Board. It is my understanding that one can be appointed from the Circuit Court to the High Court by ministerial appointment without going through the Judicial Appointments Advisory Board. If, for example, a Minister in the future wished to appoint someone to the High Court who did not qualify to be appointed to that court, he or she could be appointed to the Circuit Court and then appointed to the High Court two years later without it being checked with the Judicial Appointments Advisory Board.
I had some input into the gestation of the Judicial Appointments Advisory Board. A Government almost collapsed on the basis of the appointment of one judge. The then Chief Whip, who is now Minister for the Environment and Local Government, and I were asked to hammer out an agreement. Our current vetting system is excellent. I have great regard for the importance and standing of the High Court. The four year period will not give us copperfastened guarantees that a Minister will not have the same circuitous appointment route. However, it is better than allowing a Minister to appoint someone to the Circuit Court and before the term of office is over to appoint him or her to the High Court. Does the Minister of State have a view on that?
The same could apply in the case of the four year rule if a Government lasts for five years.
A Minister would have to be quick off the draw to get someone appointed to the Circuit Court, to get the Judicial Appointments Advisory Board in situ and to get four years in office before an election. I am not saying it is foolproof because it is not, but it is the status quo. It would be a safer procedure than the one the Minister of State proposes. I will not push it to the wall. I have huge regard for the growing importance of the High Court. It often sets itself up as an alternative Legislature and Executive. There should be careful discernment in the mechanisms by which we appoint judges. I am not convinced by things which loosen that discernment. The Minister of State’s proposals do that, regardless of how well supported they are by solicitors of long service who might see wigs in the future.
While I do not agree with Deputy Howlin about changing the number of years, I do not want it suggested that I am loosening my discernment.
Acting Chairman
I am struck by the fact that discernment in terms of the appointment of Ministers might also be relevant.
I would like the Minister of State to respond to the general point. I have moved to the core of it now. It would be safer to keep the status quo. There should be a compelling reason for change, but I have not heard such a reason.
It is not appropriate to single out the Circuit Court for special treatment in the way contemplated by the amendment. The legislation puts serving judges in a category which is different from that of first time applicants for judicial office. There are good reasons for that which reflect the competence we ascribe to those who are appointed to judicial office. In appropriate cases the ability to appoint a serving Circuit Court judge to the Bench of a higher court is a possibility which needs to be retained and should not be unduly circumscribed. We must be honest and recognise that implicit in some of the arguments being advanced, although not necessarily by the Deputies, is an innate reluctance to accept that the principle of promotion should apply in this area.
It is clear from the published report of the working group on qualifications for the appointment of judges of the High and Supreme Courts that some within the group took the view that the possibility of such movement posed a threat, real or perceived, to the independence of the Circuit Court Bench and that those appointed to that Bench should be content with their lot. I do not see merit in the argument and I remain opposed to the substance of the amendment. I do not think there is anything else concerning this amendment on which I can be of help to the Deputy.
The Minister did not address the issue. Can she give me any comfort by addressing my amendment No. 17? If we are to change the four years to two years, will she accept that in appointing a Circuit Court judge to the High Court? No matter what gloss the Minister puts on it, the notion of all judges being equal is a lovely theoretical issue, but nobody would disagree that the scope of decision making between the Circuit Court and the High Court is demonstrably different. Would the Minister not accept that if there is to be an appointment after two years of a Circuit Court judge to the High Court, the Judicial Appointments Advisory Board should at least have the chance to vouch that the candidate's capacity, understanding and experience are up to scratch? Surely that is acceptable.
Perhaps the Deputy's basic argument is about putting judges through the Judicial Appointments Advisory Board for a second time. Is that really what he is saying?
It is like applying for two different jobs. I will choose a sporting example rather than a political one. If one was appointed manager of Shelbourne Football Club and then wanted to be appointed manager of Manchester United, a discernible difference of qualification would be required. No one would argue that because someone did a great job in Shelbourne, they will automatically be able to do a great job at Manchester United. With all due respects to Shelbourne which is an excellent club, it is in a different league.
What about Hartlepool United? Would that require different qualifications?
I should have taken two British examples rather than an Irish and British one. In reality, however, my argument stands. Is the Minister of State saying that once a judge has been deemed suitable by the Judicial Appointments Advisory Board for the Circuit Court, they are de facto also suitable for the Supreme Court?
I might put that question back to the Deputy. Is he saying that a serving Circuit Court judge could go before the Judicial Appointments Advisory Board and perhaps——
And not be suitable for the High Court or the Supreme Court? Certainly, yes, I am saying that. There are superb Circuit Court judges who, in my judgment, would not be suitable for appointment to the Supreme Court.
A minute ago we were talking about football managers.
There are superb Ministers of State also who will never be appointed to the Cabinet, although not the current one, of course. There are different functions for people in different positions, and to be suitable for one does not provide blanket approval for everything else.
Yes, except that we also have to consider that failure to be recommended by the Judicial Appointments Advisory Board in the scenario Deputy Howlin is describing could have an effect on the competence of a judge in the Circuit Court.
This is the very argument that was put against the establishment of the Judicial Appointments Advisory Board in the first instance. When we considered this matter initially, it was put to me that those distinguished bewigged ones in the Four Courts could not demean themselves by applying for a judge's job because if it got out that they were unsuccessful it would be a crushing blow to their prospects as barristers. That argument was put to us then. If the Minister of State is saying that every Circuit Court judge is a suitable candidate, without further analysis, for the Supreme Court, I think her position is untenable.
We certainly have to bear in mind that the reputation of a Circuit Court judge is terribly important.
That is not the question.
With the increase in jurisdiction after this legislation has been passed, and even currently without it, there is no doubt that judges are, and will be, dealing with a range of complex matters in the Circuit Court. We cannot go along with the thought process that judges in the Circuit Court, with all their experience of dealing with complex matters and the increased jurisdiction that will come with this Bill, may not be able to work in other courts. All that experience makes them eminently qualified to go forward to the next point. I do not know where this is getting us in terms of the amendment.
The Minister of State is demonstrating no flexibility. She is reading out a prepared script.
I am not.
I do not wish to be disparaging about it but there is no openness to accept any amendment from this side of the House.
I am not reading from a prepared script. These are my own notes. As the Deputy is talking, I am writing down what he is saying.
The Minister of State recognises that there is a discernible difference between a Circuit Court judge and a judge of the High Court or the Supreme Court. All I am asking is that before the Minister appoints a judge to the High Court he or she should ask the Judicial Appointments Advisory Board to attest to the suitability of the candidate. That is a minimum requirement and I am aghast that the Minister of State does not accept it.
As things stand, serving judges at any level do not go through the Judicial Appointments Advisory Board process. Deputy Howlin is suggesting that serving Circuit Court judges should be put through this hoop, but that District Court judges and others should not be. I cannot accept that should be applied to serving Circuit Court judges at that level. It is discriminatory.
No. That is deliberately misrepresenting what I am saying. The District Court is a court of first instance. There is an argument being made by many in the legal profession that it should be abolished. In some jurisdictions, including Britain for example, that work is done by lay people. We are lucky to have a competent cadre of District Court judges who dispense justice in a structured but not overly legalistic way. The Circuit Court deals with issues of greater substance, but often by way of appeal from the District Court. The High Court, however, deals with matters of constitutional law and fundamental rights - by any yardstick it entails a different order of decision making.
I am not saying that the Circuit Court is unique and should be looked at separately from everything else, but I am saying that the courts are classified on two levels, the superior courts are the High Court and Supreme Court, and the District Court and Circuit Court are the lower courts. Before a judge moves from one to the other, the views of the Judicial Appointments Advisory Board should be requested to acknowledge that the person, as I note in the amendment, has the appropriate knowledge, experience and practice of the superior courts. That is not an onerous demand to place upon anybody. Obviously, we are not going to have any amendments accepted here.
We are now talking about legislation passed by the previous Government of which Deputy Howlin was a member. So, he is saying that he is now unhappy with the legislation he passed concerning the Judicial Appointments Advisory Board.
It is not that I am unhappy with it, but they do different things.
He is basically saying that at that point they were happy that if the judge was serving and co-operating correctly, and the Government had the advice of the Attorney General, it would make the appointment. During his term in office, they did not feel it was necessary to run such appointments through the Judicial Appointments Advisory Board a second time. Now he considers it to be a good idea and it should only apply to Circuit Court judges.
I have changed my mind over many things. There are many issues I would not address in the way I did, including Bills I brought through the House as a Minister. One does not adhere to a stated case regardless of the argument. That is part of debate and dialogue and developing as an individual.
We have spent a considerable time on this amendment and I am aware of the Chair's patience in the matter. I am due to attend another meeting at 4.30 p.m. There is no argument that there is a discernible difference between on the one hand, the District Court and the Circuit Court and on the other hand, the High Court and the Supreme Court. It is surprising that the Minister of State seeks to rubbish that argument. I understood we would adjourn at 4.30 p.m.
Acting Chairman
We are due to adjourn at5 p.m.
I have arranged a meeting for4.30 p.m. so I will have to leave the meeting.
Before Deputy Howlin leaves the meeting I need to discuss another matter with him.
Amendment put and declared lost.
Section 4, as amended, agreed to.
I suggest that as sections 5 and 6 are non-controversial they should be put to the committee before we adjourn.
Sections 5 and 6 agreed to.
Acting Chairman
I understand the Minister of State wishes to raise a matter with the committee.
In view of the debate earlier today, I have been checking when the Minister will be available. I was not privy to the private session of the committee and I do not know if committee members wish the Minister to be present when the Bar Council and the Law Society make their presentations. He has no problem in attending. If it is of help to members, he is available to attend on Thursday, 14 March, from 11 a.m. to 3.30 p.m. and on Tuesday, 19 March. He is not available on 21 March.
Has the Minister indicated that he wishes to attend the meeting involving the Bar Council?
He would be happy to attend.
I suggest we adjourn until he is in a position to attend but I will not be available for a meeting this Thursday.
We have agreed to meet the Bar Council and, if necessary, the Law Society. Following that we will conclude Committee Stage of the Bill. If the Bar Council and the Law Society attend meetings of the committee the Minister will have the benefit of the reports.
The Minister wishes to be present for the remainder of the Committee Stage of the Bill.
That can be organised.
He is also anxious for that to happen within the next week.
The committee is meeting on Wednesday, 20 March and Thursday, 21 March to consider an Estimate and a motion the Minister has certified as urgent. We would be willing to consider deferring consideration of those items in favour of the Bill but I will not agree to meeting three days next week.
Acting Chairman
There may also be a second motion with a deadline on it.
The Minister is throwing urgent business at us. When other Deputies are looking after their seats we are required to be here to attend meetings of the committee on two days next week, as well as dealing with our other business. In the circumstances, it is unrealistic to suggest a meeting for next Tuesday.
Committee Stage of the Bill will have to be concluded in the following week.
That may create difficulties for Report Stage.
It should not do so, unless there is a general election.
If we take Committee Stage early in the following week it might be possible to take Report Stage later in the same week.
I understand that members have difficulty meeting this Thursday but perhaps they could reconsider meeting next Tuesday?
We must first arrange a meeting with the Bar Council.
The Minister of State cannot be seriously suggesting that this committee meets on three days next week and that I should have to leave my constituency on Tuesday, Wednesday, Thursday and Friday of next week.
The Dáil is sitting next week.
Not on Tuesday.
Perhaps we could extend the hours we are available when Deputy Howlin is in Dublin.
Despite the Minister of State's best efforts, Deputy Howlin and I have an aspiration to be re-elected in the forthcoming general election and we consider it important that we spend some time in our constituencies while dealing with legislation. Unlike the Minister, we do not have the luxury of the advice of five experts to draft and deal with amendments. There is no possibility of meeting next Tuesday.
Like Deputy Howlin, I also travelled here today from my constituency in order to be present. It is important that——
Deputy Wallace is the third Minister with whom we have dealt in respect of these two Bills.
——the legislation is passed.
That is correct.
We are anxious that this Bill, which contains a number of particularly important elements, should be passed. I understand it is not possible to meet on Thursday and I accept it may not be possible to meet on Tuesday. Perhaps we may be able to schedule it to be taken at some point on Wednesday. The Minister is anxious to deal with the legislation. The committee has indicated that it will meet on Wednesday and Thursday, but the Minister is not available on Thursday.
The difficulty is that it has been agreed to meet representatives of the Bar Council and the Law Society on Thursday week. We cannot process the Courts and Court Officers Bill any further before that meeting takes place. I believe only one further session will be required to progress the Bill. That meeting cannot be scheduled to take place on an earlier date because the committee is committed to deal with the Department's Estimate and that of the Department of Defence. Deputy Howlin and I are impressed by the fact that the Minister and two Ministers of State have dealt with the two Bills in question. We are also impressed by the fact that each of us is, apparently, doing the work of three people. There is, however, a limit on the amount of work we can do. I think it best to proceed as we have agreed and then on Thursday week we can agree another date on which Committee Stage can be finalised.
Acting Chairman
If the motions were put over until the following week, we might use the time allocated to their consideration to continue our deliberations on Committee Stage of the Bill.
There is one consideration which is of importance. The idea of inviting the representatives of the Bar Council and the Law Society to appear before us is not simply so that we should go through some sort of pictorial/ theatrical experience of people making submissions and then grind on regardless. We should all be able to listen to what they have to say, take a day or two to reflect on this and then consider whether any amendments should be tabled in respect of the legislation. We cannot simply invite them to appear and then, the moment they leave, proceed to deal with the legislation. That would be unfair to the Minister. He is entitled to be informed by the exchanges which take place, as are the Deputies on this committee. They may reflect on the exchanges that take places and regard, either with some merit or none, the amendment giving rise to this proposal. I do not believe we can proceed further today.
We might be able to discuss the matter further in the interim. At least now, however, we understand everybody's position. That is why I raised the point——
I also asked the Minister on a previous occasion - this will be the final time I do so - to give us a list of the matters he wishes to conclude in the current session. I wish to deal with this notion of motions being certified urgent. For example, the Whip has contacted me on several occasions to ask if the committee can accede to an order of the House to take a motion about which I received no prior notice. I am amenable to operating in this way when the Department indicates that there is an urgent need to do so. However, I want to be informed about the Bills, motions and other matters the Minister wants the committee and the House to deal with between now and the end of the session.
For anyone interested in what we are doing, it is worth recording that that Bill the Minister has indicated should be dealt with urgently was published on 30 March 2001 and we only took Second Stage in the Dáil last Friday. This Bill was sitting on a shelf for eleven and a half months before the Government regarded it as sufficiently important to even take Second Stage. I am willing to co-operate in completing Committee Stage and Report Stage before Easter, but we must go about doing so with some degree of order. On that basis, we want the hearings to take place on Thursday week and we will take Committee Stage thereafter and not before. We will not take Committee Stage on the same day that we anticipate the hearings to take place.
I will communicate the points made by the Deputies to the Minister. Perhaps his office will be able to communicate with the Clerk to the Committee, both Deputies and the convenor in respect of progressing this matter.
It is always convenient to have discussions with a convenor.
Acting Chairman
Our next meeting will take place on Wednesday, 20 March.
The Select Committee adjourned at 4.45 p.m. until Wednesday, 20 March 2002.