Oireachtas Joint and Select Committees
Wednesday, 30 November 2016
Select Committee on Justice and Equality
Business of Select Committee
All mobile phones should be switched off as they cause interference, even if left in silent mode, with the recording equipment in the committee rooms. We had an instance of that last week so I ask members to adhere to that request, please.
Before referring to the two items that we are to address today, I extend a welcome to the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald and her officials.
The first matter is the Judicial Appointments Commission Bill 2016 to be followed by Supplementary Estimates for Vote 20, An Garda Síochána and Vote 22, the Courts Service.
In regard to the matter of the Judicial Appointment Commission Bill 2016, I am advised that Article 17.2 of the Constitution provides:
Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.
Standing Order 179(2) of the Houses of the Oireachtas provides that:
The Committee Stage of a Bill which involves the appropriation of revenue or other public moneys, including incidental expenses, shall not be taken unless the purpose of the appropriation has been recommended to the Dáil by a Message from the Government. The text of any Message shall be printed on the Order Paper.
As the Judicial Appointments Commission Bill 2016 will involve a charge on the Exchequer and no message, as mentioned, has been printed on the Order Paper this morning or prior to today, it is not possible to proceed with the Committee Stage of the Bill at this time.
The select committee was unanimous in its intent to address the Bill today but, unfortunately, I must indicate to my colleague members that we are not in a position to proceed to address this Bill because of the fact that the money message, as it is referred to, is not on the Order Paper in advance of our sitting this morning. Would members like to comment before we bring this matter to a close and proceed to the next item, the Supplementary Estimate for the Department of Justice and Equality?
I will afford an opportunity to Deputy Jim O'Callaghan, the mover of the legislation, to make a brief comment.
As the Chairman said, I am the mover of the legislation. It is important to put it in context, as well as the decisions made previously by the Oireachtas.
The legislation was passed on Second Stage on 26 October. On that day Dáil Éireann made a decision, pursuant to Standing Orders 84A(3)(a) and 141, to refer it to the Select Committee on Justice and Equality. During the course of the debate on Second Stage the Tánaiste and the Minister for Transport, Tourism and Sport spoke on behalf of the Government. They said they would not oppose the Bill which, in many respects, they welcomed. They stated it was their intention to bring forward Government legislation shortly. At no stage during the course of that debate did either of them suggest the Government would seek to obstruct the Bill by preventing it from receiving a full hearing at the Select Committee on Justice and Equality. On 19 November the committee decided that the legislation did not require to be subjected to pre-legislative scrutiny and it was agreed that Committee Stage would be taken today, 30 November. At no stage has a complaint been made about the orders made by the committee made on 9 November.
It is important to bring into focus the background to this dispute and the efforts made by the Government to subvert this legislation and ensure it will not be brought before this Oireachtas committee for consideration. I was contacted by the Government on the evening of Tuesday, 22 November and asked whether I would withdraw the Bill which was to be considered by the select committee today. The reason I was given was that the Government was under pressure to get the Courts Bill through the Oireachtas, especially the part dealing with the reappointment of the costs accountant. I was asked by the Government, on the basis of the urgency of the Courts Bill, to agree to allow an adjournment until 14 December in order that the Courts Bill could be dealt with today. I refused that request. It is instructive to note that, in fact, the Courts Bill is to be taken by the committee tomorrow.
On Wednesday, 23 November I was again contacted by the Government amd asked whether I would withdraw my Bill in order that it could be subjected to pre-legislative scrutiny. Again, I refused, politely. During the same call I was asked whether I would agree to withdraw the Bill and then work with the Government on its Bill. At that stage I mentioned that there was a particular urgency because the Government had indicated that it was not going to appoint judges because of the insistence of the Minister for Transport, Tourism and Sport that it not do so until a new statutory regime was in place. At no stage during my discussions with the Government last week did anyone mention that it was going to raise an objection to this legislation because it involved what is referred to as a charge on public expenditure.
I am now aware, from speaking to members of the select committee, that it is being suggested sections 10 and 11 of the Judicial Appointments Commission Bill involve a potential charge on the Exchequer. I have my own views on that matter and do not necessarily agree with the suggestion made. Section 10 states:
(1) The Minister may make available to the Commission such services, including staff, as the Minister may determine from time to time with the consent of the Minister for Public Expenditure and Reform.
(2) The Minister may second or assign to the Commission such of his or her officers as he or she may determine, with the consent of the Commission and the Minister for Public Expenditure and Reform, to be members of the staff of the Commission.
Section 11 states: "The expenses incurred by the Commission in the administration of this Act shall be paid out of moneys provided by the Oireachtas". Even if it involves expenditure, every real politician in this room and the country knows that it would be minor. What has happened, however, is that because it involves some minor technical details of expenditure, the committee requires a message from the Government in accordance with Article 17.2 of the Constitution. The Government has made a decision not to grant that money message, as it is referred to in the Oireachtas. The sole purpose or reason the Government is invoking this constitutional provision is not that it has any concern about the expenditure of public moneys - it is aware that the public moneys expended would be minimal - but to solve a political problem for it.
Although I am the person who is sponsoring the Bill, it will have consequences for all Members of the Oireachtas in the future. There are many Second Stage debates in the Oireachtas and many Bills are then referred to a select committee. There is no doubt that we could find in every tranche of legislation examples of where some minor expenditure could be incurred. In this case it appears as if the Government does not want the legislation to be placed before a select committee and that it will simply use its veto and seek to invoke, inappropriately, Article 17.2 for the purpose of trying to get itself out of a bind. That places this committee in a difficult position. I know that all members prepared for this hearing and that they have considered the Bill carefully and tabled amendments. I would have thought that as an act of courtesy to you, Chairman, and the committee, if Government knew it was going to invoke this measure, it would have been communicated to the committee earlier than yesterday. I was notified yesterday of its intention to do so. I believe that even the Chairman was not notified of it yesterday. I understand he was only notified this morning. It showed extreme disrespect to the committee and the Legislature by the Executive branch of the Oireachtas. It is important that this dissatisfaction be epressed. It needs to be described for what it is - a stroke by the Government. It is trying to stop the Oireachtas from doing its job and introducing legislation.
Before giving other members an opportunity to speak, I reaffirm that I am only offering the opportunity to say what their reaction is and on what they want to reflect. We cannot allow them to address the substantive issue. That is the bottom line in respect of the provisions referred to. I call Deputy Clare Daly who will be followed by Deputy Jack Chambers.
I spent half the night preparing for the debate and have tabled a litany of amendments to the Bill. It is critical that it be advanced. I am shocked. I could not believe it when I heard this morning what had happened. It is an outrageous bureaucratic manoeuvre. That is all it is and the only thing we can call it. It strikes a blow at the autonomy and functioning of the select committee in a way that flies in the face of the so-called new politics. I just cannot believe it.
The committee discussed whether we needed to subject the Bill to pre-legislative scrutiny. Based on our input, we decided that we would not do so, that we wanted to move ahead. This is an incredibly well functioning committee. When dealing with other Bills we decided that pre-legislative scrutiny was necessary. We have been through that process in dealing with another Bill.
I want to make two points. There is no point in accepting any Opposition Bill on Second Stage if the Government is going to behave in this manner as it makes an absolute mockery of the process. I do not understand what a money message is. I gather it is a message placed on the Order Paper, giving permission to proceed. If this is not a bureaucratic manoeuvre, could the Government not simply do it now and proceed with the Bill next week? I do not fully understand the mechanics involved. However, I understand that if the Bill is not allowed to continue and we do not overturn this attempt, there will be no point in any Opposition Bill moving beyond Second Stage. This has serious ramifications for what we call new politics - it is nothing of the sort.
The Bill being proposed by my colleague, Deputy Jim O'Callaghan, tries to provide for a new independent system of judicial appointments. That is singularly important. It is vital that appointments be based on merit in the appointment and ranking of the different members.
I read again the speech of the Tánaiste and Minister for Justice and Equality on Second Stage and at no stage did she mention anything about invoking Article 17.2 of the Constitution. The Government allowed the Bill to pass and the Minister mentioned how it was a useful framework. She also mentioned how the Department of Justice and Equality had engaged with stakeholders and that the Bill was progressive and provided an interesting basis on which to engage in consideration of reform.
The Minister said there is common ground on Bills and that she would not oppose it but she hopes to come up with her own Bill. It was disingenuous to allow this Bill go through Second Stage and to present, as Deputy Daly has mentioned, a bureaucratic stroke to the committee at such a late stage, without respecting the Chairman. The Minister is the Deputy Leader of this State. We hear repeatedly about the programme for partnership Government which states:
The new political landscape in Ireland presents a historic opportunity to radically reform Irish politics – to fundamentally change the relationship between Government and the Oireachtas, and with it the relationship between the Irish people and their parliament.
It is said to be a partnership between Government and Parliament. It is when it suits the Government. The Government says it wants to be part of this change, not only to shape it but also to help drive it.
We have seen how this Bill has progressed through the Houses. We are here at this select committee, prepared for the amendments and to progress this, but as Deputy O'Callaghan has said, the Minister is addressing internal governmental issues and we have a de facto Minister for justice who is not here, Deputy Ross. The Minister has allowed another member of the Cabinet ride roughshod over the Executive, the Government, and undermine this Parliament. That is wrong. If the Minister wanted to achieve what is in A Programme for a Partnership Government, a partnership between the Government and the Dáil, she would have respected that process and mentioned that there were issues around Article 17.2 when she made her presentation to the House. To allow it to progress, to allow Deputies put forward amendments in a constructive fashion over weeks and to pull it at the last moment is wrong and undermines the rhetoric the Government uses repeatedly in our Parliament.
I am really angry about how this has been stroked to suit one Minister who has forgotten about his own portfolio. The Minister for Justice and Equality needs to exercise her own authority as Minister and Tánaiste. She could have facilitated this, with constructive amendments from the Department, by allowing this Bill to go through Committee Stage. Instead, it has been blocked, undermined and pulled at the last minute. It is a waste of the time of Members who have put significant work into drafting and amending this and it undermines everything the Minister and the Government has said about new politics. This is a dark day for what this partnership Government was intended to be.
Deputy Brophy is next, then Deputy Wallace. We will not be opening any discussion but I will afford the Minister the opportunity to respond. That will be the end of it and we will then move on to the rest of our business. People have the opportunity to speak now.
As a newly elected Deputy, I apologise if I am not 100% accurate about the flow of the process. To listen to the righteous indignation of some Deputies, one would swear we are never going to consider this legislation again. Am I not right in understanding that at some point soon we can carry out pre-legislative scrutiny of Deputy O'Callaghan's Bill and maybe of a Government Bill too? Surely it is important to get the work of the committee right rather than rush along according to a timetable orchestrated in a way I cannot fathom but that does not seem to have anything to do with getting the work right. The Bill is so deeply flawed in so many ways that pre-legislative scrutiny was probably essential. It was regrettable that it did not happen. I understand why it was decided not to have it but the grounds for that no longer apply. If there is an opportunity to get the process right it is better to do that. The delay is not inordinate. It would be better to concentrate on our role than to focus on what Minister is doing what. If Deputies have prepared amendments, the work is done and the benefit will come to the committee when it gets an opportunity.
There has been tremendous cross-party co-operation and continuing that kind of co-operation would be much more effective than going down a route that might make the committee work less effectively or coherently. Deputy Daly recently agreed to pre-legislative scrutiny of a Bill. I look forward to this Bill coming back for pre-legislative scrutiny and Committee Stage.
Perhaps I have forgotten it but I do not remember the Deputy saying that pre-legislative scrutiny was required. It is very unfair to say that Deputy O’Callaghan’s work has fallen well short because any Bill that any of us puts forward will require tinkering of some kind. He has put a lot of work into the Bill.
This smacks of very dishonest work. It really calls into question how things are done. The notion that the process is being thrown out the window to keep Deputy Ross on board a fragile Government is a load of rubbish.
This is my second term on this committee and for the information of my colleagues, I have never come across a Bill from an Opposition Member getting such support within the committee and from the Minister and I have never seen a Private Member’s Bill not go through pre-legislative scrutiny since that process was introduced in the last Dáil. The Chairman has been here much longer than me and can perhaps confirm this. I respect Deputy O’Callaghan, his profession, qualifications and experience. However, without the benefit of the available resources of the Department of Justice and Equality, I think even he will admit that there might be issues in his Bill that need to be worked out. Therefore, it is only appropriate that the time be given for a thorough examination of it and that it come back to this committee and the Dáil in the appropriate way. The Deputy does not have a monopoly on views on the subject of the Bill. The programme for Government sets out a similar aspiration. I see no reason both Bills cannot be debated, if not together then in close proximity to one another to make sure that Deputy O’Callaghan’s views and those of his party and others are taken into consideration. None of us can do anything in isolation in the present Dáil. We have to work together and that includes this process.
To pick up on the last point, Deputy O’Callaghan is well aware that there are problems in the Bill. He admitted that on Second Stage. It is not a case that there might be issues, there are issues, as recognised by the person who moved the Bill. That is the very reason for a legislative process, with Committee and Report Stages, when amendments are put forward to rectify problems.
If there are issues with legislation in the eyes of the Government, it is the responsibility of the Government to propose amendments on Committee and Report Stages. That is why Bills do not stop on Second Stage. It seems that if they did, many more Opposition Bills would be passed. At the moment, they go into a black hole after Second Stage.
I understood we were changing the way we do politics in the Thirty-second Dáil. That is clearly not the case. It is very disappointing and downright insulting to the committee that a decision which was supported by all members of the committee, including Fine Gael members, is not being upheld now. The Fine Gael members in question are rocking up in here today to say we should have pre-legislative scrutiny, but no such case was made when we decided to take Committee Stage today. It is cowardly to support legislation on Second Stage only to block it when the time comes for amendments to it to be debated on Committee Stage. The whole point of the amendments is to improve the legislation and perfect it as much as possible. It needs to be improved, as Deputy O'Callaghan has recognised.
It would be preferable if the Minister and her Government colleagues were to vote down legislation on Second Stage, rather than pretending to support it only to show on Committee Stage that they are not really supporting it. Such an approach to legislation is not good for politics, in my opinion. I remind Deputy Brophy, who has described the Bill as "deeply flawed", that the Minister does not share his view. If the Deputy's view is that there are so many issues with the Bill, he should have voted against it on Second Stage. It is very irresponsible to allow a "deeply flawed" Bill to pass Second Stage and move on to Committee Stage.
I will not allow exchanges across the committee. We are not in a position to open up a discussion here. As I have allowed every member of the committee to make a contribution, it is only fair that I should allow the Minister to do likewise. After she has spoken, I will suspend the sitting for a moment to allow for the changing of the guard in terms of the Minister's officials so that we can move on to address the Supplementary Estimate.
I thank the Chairman for giving me an opportunity to make some comments. The points I have to make might assist the committee in its consideration of this matter. I remind Deputies O'Callaghan and Jack Chambers, in particular, that new politics works both ways. As Deputy O'Callaghan mentioned on Second Stage, the confidence and supply arrangement provides for a ten-week period for bringing forward a Government view on legislation before it is considered on Committee Stage. The Bill we are discussing was introduced less than five weeks ago. Deputy O'Callaghan told the Dáil on that occasion that this "brings us to the beginning of January 2017 and I want my legislation before the committee at the beginning of January". What has happened in the meantime? I accept that when he brought the matter before the committee, it decided not to have pre-legislative scrutiny. I would like to make some points about that decision.
New politics envisages that legislative proposals will be subject to pre-legislative scrutiny. When I publish my Bill next Tuesday, I will ask the Chairman of this committee to provide for it to be the subject of pre-legislative scrutiny. When Deputy O'Callaghan brought his Bill to this committee, he also booked time in the Dáil next week for Report Stage. His party agreed to allocate Private Members' time for this Bill in advance of this committee having any discussion on it, in advance of any amendments and in advance of any timetable coming from the committee. I do not know how Deputy O'Callaghan decided that the Bill would be considered on Report Stage next week, but I have to say it does not smack of new politics to me.
I accept the point that there is a range of policy issues arising in this context. I respect the work that Deputy O'Callaghan has done on this Bill and the contribution he has made to the discussion in this area. I think he will share my view that since the foundation of the State, the Judiciary has served this State very well. Regardless of the system that is used for the appointment of judges, my personal belief is that there has never been any fear that judges will not behave impartially after they are appointed. I have made this view very clear all along. I have spoken of my respect for the Judiciary. I have emphasised how well this country has been served by its Judiciary. Times move on, however. Views have changed regarding the best method of appointing the Judiciary. That is what is under consideration in the Bill that Deputy O'Callaghan has proposed and the legislation I have been working on.
I believe there is common cause between the Bill I will be introducing and the Bill that has been published by Deputy O'Callaghan. There is agreement on the need for a new system of appointing judges. I do not believe that reflects in any way on those who have previously been appointed. Instead, it takes account of the best modern approach to recruiting the most suitable people. While I recognise that there are special requirements in any judicial appointment, that does not mean lessons cannot be learned from changes in selection processes generally. I believe those lessons should be applied to this arena now. After 20 years, it is time for change. We have seen a sea change in selection processes in other areas. The challenge we face is to decide how best to go about making improvements in this area.
The reality is that although we have a common objective, there are proposals in Deputy O'Callaghan's Bill that run directly contrary to the contents of the programme for Government. Of course he has a right to make such proposals. Members of the Dáil have an important role in making proposals. Of course some of them will be contrary to Government policy. I note that Deputy Clare Daly has tabled a number of amendments that directly contradict what is in the Bill at it stands.
Exactly. I mention the Deputy's amendments to make the point that there are real issues of difference here. The Government members of the committee have such issues as well. We are bringing forward our own Bill. We have given priority to the drafting of that Bill in accordance with our own legislative proposals. I have already said, those Government proposals will be subject to pre-legislative scrutiny immediately. I believe the side-by-side consideration of both Bills as part of the legislative process would be in the best interests of the production of the most effective set of legislative proposals. I think the examination of both Bills in this way, with both of them being subject to pre-legislative scrutiny, would be an example of new politics. It would certainly be preferable to a rush to legislating for this important constitutional area.
I have a series of concerns about certain points in Deputy O'Callaghan's Bill. I believe there is a constitutional issue in it. Other issues that arise from it also need further development and change. I accept that this is what happens on Committee and Report Stages. I will not pretend that there are not substantial differences between my approach and that advocated by Deputy O'Callaghan. I refer, for example, to his proposal for an independent chair and his approach to the composition of the new board. In light of the complex choices that are before us, I strongly submit that working co-operatively on pre-legislative scrutiny of both Bills would be in the interests of the production of the best legislation possible. I have already suggested that to Deputy O'Callaghan. I am happy to work closely with him in a co-operative way. I can arrange for officials in the Department to meet him to go through the details of our approach and to explain how it differs from his approach.
I believe our Judiciary is of the most profound importance to the State. I am sure all members of the committee will agree we should follow the best procedures for ensuring the best people are selected. That is of profound importance. That is why I believe everything possible should be done to ensure we examine this legislation in a detailed way, as opposed to rushing to Report Stage next week as Deputy O'Callaghan had envisaged. The timeframe that was available would have left me unable to make the kind of detailed amendments I would want to make. I would certainly have been able to make them by January if we had gone down that route. Equally, the Government decided yesterday to appoint judges where there are vacancies and that will happen next week.
Deputy O'Callaghan's motivation in proposing this legislation, as I understand it, was his concern about delays in judicial appointments. That issue has been addressed. I suggest we need to take the time to examine this legislation and engage in pre-legislative scrutiny, rather than following the accelerated process proposed by Deputy O'Callaghan.
Those are the main points that I would make. I hope it has cast a light on the approach that I would like to see for this legislation, which I think would be the most productive way forward.
A money message is not on the Order Paper today, as I understand it. That is a parliamentary matter. The Bills Office decides on that in contact with the Department of Public Expenditure and Reform, which then contacts the Taoiseach. That is the how that process works. There is a period of up to ten weeks ahead for private Members' Bills in which a message could be put on the Order Paper.
It is instructive that the Tánaiste did not concentrate on my main criticism, which is the failure of the Government to send the money message. The Tánaiste referred to pre-legislative scrutiny. I am happy to do that if we know at the end of the process that the Government is not going to pull the same stroke again. There is no point in a private Members' Bill going through pre-legislative scrutiny if, when it is about to go to select committee, it fails to get the money message from the Government. If the Tánaiste can give an assurance that this stroke will not be repeated in January or whenever, then I will go down that route of pre-legislative scrutiny. I ask for that assurance now.
No. I am not in a position to respond any further today. What I saying is that if Deputy O'Callaghan agrees to have pre-legislative scrutiny of both Bills, then the progress of both Bills can be assessed at the time and we can decide as the Bills go under pre-legislative scrutiny what the best way forward is. That will be a matter for discussion within the committee and perhaps between Deputy O'Callaghan and myself.
On a point of order, if we are going to have a view of how the committee should proceed, we should also look at what Deputy O'Callaghan was going to do at the next Stage and the timing of that, which I happen to think was disrespectful to our committee in terms of giving us proper time to view amendments. I believe we should take that into account. A Deputy of this committee cannot treat the other members of the committee in one regard and then claim that actions by outsiders are treating it unfairly as well.
We will close the matter there. This matter will be addressed by the committee in determining how we proceed. The Tánaiste has indicated that we are going to have a further Bill referred to us in the coming week. We will have to decide in joint session as to how we will address both of these matters. I appeal that we do so in a calm and serious way. With respect to the Tánaiste, I am not in any way referencing what she has said here today. This committee prides itself on being a parliamentary committee. We are not a committee of Government and we are certainly not a committee of the Department of Justice and Equality. We are a committee of parliamentarians and we cherish that independence and our representative make-up. That is very important.
The Tánaiste made a point about a two-way street. There is a two-way street here. I remind the Tánaiste and her officials that when the Department of Justice and Equality has been anxious for this committee to address Bills of its own authorship, the committee has been very facilitative, not only prior to the summer recess but, also tomorrow morning, when we convene at 9.00 a.m. in the Dáil Chamber in order to accommodate the Tánaiste's request to address the Courts Bill. We understand and appreciate the importance of it and the consequences of its not being addressed on Committee Stage or its being delayed. This committee has been very co-operative and that is the spirit that will maintain. However, to reference the Tánaiste's own remarks, it is a two-way street.
That is the closing comment on this matter.