Oireachtas Joint and Select Committees
Thursday, 15 February 2018
Select Committee on Justice and Equality
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
I take Deputy Daly's point and ask her to give me a moment to look at the briefing. For the information of members, we are addressing section 47 and the proposition is that it stand part of the Bill.
Having regard to previous decisions I took of a similar nature, I register my wish to preserve the section and my dissent from the view of the members of the committee, but I will not press a division. I ask members to accept that.
I move amendment No. 150:
In page 34, lines 12 to 14, to delete all words from “shall” in line 12 down to and including “Act” in line 14 and substitute “shall consider for appointment only those persons whose names have been recommended to the Minister”.
That is in order. I think we have done it more particularly in relation to sections but I do not think there is any issue in adopting the same position on actual amendments. The Minister's dissent is noted.
I move amendment No. 154:
In page 34, lines 19 to 25, to delete all words from and including “Subsection (3)” in line 19 down to and including “office” in line 25 and substitute the following: “Subsection (3) has effect where a person, who is a member of the Commission, has made an application under section 41 as respects a particular judicial office.”.
Amendments Nos. 157 to 161, inclusive, are related. If amendment No. 157 is agreed, then amendments Nos. 158 and 159 cannot be moved. This represents a new section and acceptance of this amendment involves the deletion of section 50.
I move amendment No. 157:
In page 34, between lines 29 and 30, to insert the following:
“Notice of appointment to be published
50.(1) Notice of an appointment to judicial office shall be published in Iris Oifigiúil and the notice shall, if it be the case, include a statement that the name of the person was—(a) recommended by the relevant committee to the Minister in accordance with the provisions of this Act, or
(b) recommended to the Government under section 46,as the case may be.
(2) In the event that a person appointed to judicial office has not been recommended by the Commission under this Act, the notice of that appointment published in Iris Oifigiúil shall include a reasoned written explanation of the decision of the Government not to nominate a candidate recommended by the Commission.
(3) In publishing the reasoned written decision in accordance with subsection (2), the persons recommended by the Commission shall not be identified.”.
For the benefit of the committee and how we do our business, there are many amendments dealing with removing the relevant committee and general tidying up. I tried to identify those necessary to preserve the procedures committee, which I think is a decision we agreed. Amendment No. 162 relates to that. I will try to indicate those amendments I will be opposing and those I will be supporting as I go on.
In respect of amendment Nos. 157 and 160, which are related, these are amendments proposed by Dr. Patrick O'Brien, who was referred to in previous sessions. We have had a debate recently about the Government requiring, or at least the perception that it requires, discretion in relation to appointments. I refer to the conflict between that and the desire to have a fully transparent process with the judicial appointments commission making as much of the decision as possible.
Where the person appointed to judicial office is not a person who was recommended by the judicial appointments commission, amendment No. 157 requires that a reasoned written decision would be published in Iris Oifigúil explaining the reason for that person's appointment outside of the judicial appointments commission process. Similarly, amendment No. 160 relates to the placing of a statement before the Houses of the Oireachtas within 30 days of that appointment giving a written decision as to why a person was appointed who was not nominated by the commission. There is clear and obvious sense to it. Whatever the arguments about constitutionality, if the committee accepts the case that the Government must have a greater degree of discretion than the judicial appointment commission provides to it, then in the exceptionally rare circumstances that people would be appointed outside this process the Oireachtas and the public deserve to have an understanding as to why this was the case. This provides for that.
I cannot accept these amendments for reasons we discussed on a previous occasion regarding the constitutional imperative on the part of the Government on these issues, with particular reference to the appointment of members of the Judiciary. Amendment No. 157 would require a proposed new subsection (2), the publication in Iris Oifigúil of a reasoned written explanation of any decision. In addition, under the proposed new subsection (3), the persons who are recommended by the commission must not be identified in such publication. My difficulty is that the amendment would require the Government to explain in writing the hows and wherefores of why, in any particular instance, the advice given to the President in regard to an appointment may concern a candidate other than the one actually recommended by the commission. It, therefore, puts a clear onus and responsibility on the Government to justify actions taken on foot of the exercise of what is a constitutional provision. There is that problem but aside from that, I am not sure what the value or benefit of such an amendment might be, and what its practical impact might be in terms of fairness to all those involved in the process, be they a recommended candidate or a candidate that did not make the cut. I note what Deputy Ó Laoghaire has said, that it is a desire on his part for increased transparency around the process of how, in what circumstances and in what way the Government would advise the President as to the appointment. I have said this before and rather than delaying the committee's proceedings, I reiterate that my position is the same. As a fundamental position, I cannot support any amendment that might give the impression or be perceived to undermine what is a clear constitutional prerogative on the part of the Government in the matter of judicial appointments.
Similarly, on amendment No. 160, I see it as compromising, interfering or even undermining the manner in which the constitutional position, where the Government is free to reject the recommendation of the commission.
Deputy Jack Chambers and I will support amendments Nos. 157 and 160, partly because there is a similar provision in our own legislation which has passed Second Stage. I note the Minister says he is opposed to it because he thinks that it is constitutionally frail and could impinge on the prerogative of the Government to nominate individuals for appointment. That point is valid in regard to amendments Nos. 150 and 151, tabled by Deputies Clare Daly and Wallace, which we voted down. I am not sure that their suggestions were unconstitutional but I had concerns if the Government was told that it must select, and could only select, a person from the three names given to the Government by the commission. That is on the borderline of constitutionality. However, what is proposed in amendments Nos. 157 and 160 is different. What is proposed there is that the commission gives the three names to the Government. Under the Minister's proposal in the legislation, as drafted, all that is required is that if the Government does not select one of those three names, it must publish that fact in Iris Oifigiúl. That is exactly the same as the current position, so there is no substantive change in the law. It is appropriate that if the Government makes a decision that it is not going to appoint one of the three people nominated, that it should provide a reasoned explanation as to why it is not doing so. It does not involve referring to the individuals who have not been appointed. If, say, Jack Chambers was appointed but he was not one of the three on the list, the Minister or the Government should say that Mr. Justice Chambers was appointed, although he was not nominated by the commission, and it should explain the reason it selected him. Maybe he has particular expertise in medical legal law and the Government needed an expert in that area to hear many cases or perhaps he has an expertise in the Irish language and there was a vacancy in the area and we needed more expertise in the Irish language. It is not something that is difficult to do. If we do not have that, we will have gone through all this process of putting in a new structure when, ultimately, there will be no change from the current situation. For those reasons, we will support the amendments.
Deputy O'Callaghan put it well. I ought to have acknowledged that he had included this in his original Bill, although it was brought to my attention via Dr. Patrick O'Brien. We have had a debate around whether or not the Government could be constrained. I am not convinced that it is unconstitutional but we have arrived at a decision in regard to that. What this does is clearly quite different. It tries to ensure that there is an incentive for the Government not to ride roughshod over the process, and to ensure that it is not too easy for Government to constantly go outside the process. The process is very clear. If the Government sees a compelling reason for appointing someone to a particular position, a person who was not considered by the judicial appointments commission, it is at liberty to do so but it is absolutely reasonable that it be required to justify that and give a reason in the process that is outlined in the amendment. It is standard enough in legislation and in many processes for a Minister or Government to make a statement. I will press the amendment.
No, I would just point out that section 50 adequately fits the issue in hand here. I have listened to both Deputies. I am wondering what type of reason is envisaged. What might the reason be and in what form might the publication take? Deputy O'Callaghan gave an example of the appointment of his colleague, Deputy Jack Chambers, but what kind of reason would he see as being appropriate should Deputy Chambers not be the subject of a recommendation? In what detail would the notice be required? I am concerned that we will have entered constraining territory, from the Government's point of view and constitutionally.
I would like an explanation from the Minister about why the Government is refusing to shift from the current position that Deputy O'Callaghan has outlined. Surely, if the Minister is trying to reform the process, there is a need to provide explanation and further detail. That is in Deputy Ó Laoghaire's drafting. No person will be identified. It is a case of formalising and opening up the process in the context of transparency. Perhaps the Minister can provide further detail on how he believes this would impinge constitutionally, apart from saying that it has constitutional implications. The committee should know what exactly these are in the Minister's view.
I can understand the position in respect of the previous amendment if the only recommendation has to be that someone would be appointed by Government or "the Government shall" appoint a particular person. That certainly has constitutional implications but I am unsure how this drafting would have any constitutional implications.
I see the line being crossed in terms of the unfettered constitutional prerogative on the part of Government in the appointment of judges. Asking the Government to justify actions taken on foot of the exercise of such a provision is, to my mind, legally problematic.
If Deputy Jack Chambers was appointed to the Judiciary without being recommended by the commission, the Government of the day should definitely explain itself. Deputy O'Callaghan has pointed out that this situation already prevails . Will the Minister clarify the position? Is that true? Is Deputy O'Callaghan right in what he said or is he wrong?
I am referring to the current arrangement before we even enact the new legislation. If this situation were to occur, the Government would be obliged, as matters stand, to give a reason for it. Is that true? I am only asking - I do not know.
Deputy Wallace is making the point that if the Government nominates for appointment a person who has not been recommended by the Judicial Appointments Advisory Board, all it has to do at present is state in Iris Oifigiúilthat X has been appointed and was not recommended by the board. It only happens exceptionally, although it happened recently. This would be the position under the legislation we are discussing. Let us suppose that the commission nominates three and the Government decides not to accept and opts to nominate another individual instead.. Then, under what is proposed, all that would happen would be that the Government would have to say that the person appointed was not recommended by the commission. There is no change.
If it were to occur under current legislation, it would be a mere statement of the fact that the recommendation has not been accepted. Under the current amendment, Deputy Ó Laoghaire is going further than that in so far as a reasoned written explanation is concerned. That is where we are getting into constitutionally fraught territory. In fact, it is far more than the current requirement.
The point was made that it would be interfering with the unfettered discretion of the Government. The entire Bill is about putting fetters, to some extent, on the discretion of the Government. That is the purpose of the legislation. If the Government wanted unfettered discretion in appointing people to the Judiciary, then we would not have processes of this kind. It is perfectly reasonable to provide an explanation and justification.
It is the case that this has not happened often. I hope it would be the case that it would not happen often. However, if there was a Government that was minded to appoint multiple judges outside the standard process on several occasions, this measure would act as a disincentive. That is the purpose of the legislation. It is a constraint, not an unreasonable constraint.
Amendment No. 160 has already been discussed with amendment No. 157. For the information of members, if the question on amendment No. 160 is agreed, then amendment No. 161 cannot be moved. We have already discussed this. I am going to proceed.
I move amendment No. 160:
In page 34, after line 36, to insert the following:
“Statement to Houses of the Oireachtas
51.(1) Within 30 days after the end of each year, the Minister shall cause to be laid before the Houses of the Oireachtas a statement of appointments to judicial office made by the President during the previous year (not being appointments made before the commencement of this section) and that statement shall include—(a) the name of each appointee and the judicial office to which he or she was appointed,
(b) particulars of the education, professional qualifications and experience of each appointee, and
(c) if it be the case in relation to a particular appointee, a statement that the appointee’s name was—(i) recommended by the relevant committee to the Minister in accordance with the provisions of this Act, oras the case may be.(2) In the event that a person appointed to judicial office has not been recommended by the Commission under this Act, the Minister shall within 30 days of that appointment cause to be laid before the Houses of the Oireachtas a statement containing a reasoned written explanation of the decision of the Government not to nominate a candidate recommended by the Commission.
(ii) recommended to the Government under section 46,
(3) In publishing the reasoned written decision in accordance with subsection (2), the persons recommended by the Commission shall not be identified.”.
No, it is not. We will come back to it on Report Stage. As it concerns the procedures committee as opposed to other committees, I will not be pressing it or amendments Nos. 163 to 165, inclusive.
The amendment is about the extra qualifier being included in respect of diversity which I do not think it is necessary to include as it is implied and does not need to be spelled out. It makes diversity less important than gender equality.
I move amendment No. 174:
In page 37, between lines 21 and 22, to insert the following:“(f) the need for each Court to have members of the judiciary who are proficient in the Irish language,”.
Every person in the country is entitled to have his or her case heard through Irish if he or she so wishes. That means that there has to be proficiency in the Irish language within each court. It certainly does not mean that one can only be appointed a judge if one can speak Irish. The vast majority of people appointed as judges will not be able to hear cases in Irish, but it is important that each court has within it judges proficient in the language in order that the constitutional right of citizens to have their cases heard through the national language can be vindicated.
Amendment No. 174 appears to be consequential on amendments Nos. 18 and 20 which we discussed in grouping No. 6 with reference to section 7. I outlined my position during that discussion and it has not changed. I am not in a position to support the amendment. There is nothing in section 55 that would prevent the procedures committee from considering whether proficiency in the Irish language was required or needed for appointment to a particular judicial office. I am, therefore, not inclined to accept the amendment. Even if I was so inclined, I do not believe this is the appropriate section in which to include such a provision since the subsection deals with selection procedures in the statement. Section 55(6), on the other hand, deals with skills and attributes, issues we discussed at length when we discussed amendments included in a previous grouping. That might be a better fit for such a provision. However, I am not minded to accept the amendment.
We will not push our opposition because section 56 concerns the procedures committee. I know this committee has adopted a different position from other committees as regards the procedures committee.
I move amendment No. 180:
In page 39, to delete lines 25 and 26.
This adds another arm to the procedures committee in the context of administrative support. Surely the commission will have the necessary administrative support. I do not see the necessity to have a specific reference to it in the legislation. While the committee has taken a position to support the procedures committee, I do not see the need for this to be part of section 58.
I move amendment No. 185:
In page 40, line 29, to delete “A relevant committee (within the meaning of the Act of 2017) of the” and substitute “The”.
We will press this as it is consistent with all the other amendments about relevant committees.
I move amendment No. 189:
In page 43, between lines 4 and 5, to insert the following:"(4) In the performance of its functions under this Act, a relevant committee shall be prohibited from any consideration of an applicant’s political affiliation.
(5) In the performance of its functions under this Act, the Government shall be prohibited from any consideration of an applicant’s political affiliation.
(6) An Applicant for judicial office shall not have been a member of, or a representative of, or a donor to any political party in the State in the three years immediately preceding the date of application for judicial office.".
Regrettably it is not being pressed. The committee has already voted to establish the judicial appointments commission so I will not press the amendment since the committee has decided to hold onto the commission.
Deputy O'Callaghan's point on the Title is not only well noted, but it is accepted that this will certainly be revisited over that period ahead. However, we have to adopt the Title at this juncture and the Minister will appropriately address this with his departmental colleagues in the intervening period.