Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move amendment No. 75:

In page 27, between lines 11 and 12, to insert the following:

“Extent of application of Chapters 1 and 2

36. Nothing in this Chapter or Chapter 2 shall be construed as being applicable to a judicial office to which section 42 applies.”.

Amendment No. 75 introduces a new section. I share the amendment with Deputy Clare Daly. Its purpose is to reinstate what was previously section 39 of the Bill, as initiated. It is a general explanatory provision to the effect that Chapters 1 and 2 of Part 7 of the Bill do not apply to procedures in respect of certain senior judicial posts which are provided for separately in section 42 of Chapter 3. I do not anticipate that it will be controversial.

Amendment No. 76 is identical to the amendment in the name of Deputy Clare Daly. It is a drafting amendment which arises from a revised text of section 36, formerly section 39, which was amended on Committee Stage on the proposal of Deputy Clare Daly. Select committee members will recall that the word "publicly" was unnecessary and, accordingly, the amendments delete it.

Deputy Clare Daly and I share amendment No. 77 which is another drafting amendment and consequential on a series of amendments made on Committee Stage regarding the removal of the relevant committee structure.

Amendment No. 78 in my name is a reflection of a concern expressed at the select committee. While we did discuss these matters at it, I am advised that we need to state the order of preference will not limit the advice the Government might give to the President under the Constitution. There is no doubt that the list of three persons is the minimum to allow choice in the names the Government may nominate to the President for appointment. It also remains open to the Government, in accordance with the retaining of the constitutional prerogative, to nominate a person other than those who may be listed. In addition, the Bill deals with situations where it is not actually possible to recommend three persons.

There are a number of challenges. For example, on the matter of the order of merit, if the listing was seen to be in any way as a binding order of merit which confined the Government in the exercise of Executive discretion under Article 35 of the Constitution, we would have a constitutional difficulty. I have to reiterate at this stage that any ranking in order of merit of nominees for judicial office which would be submitted to the Government could interfere with and unlawfully fetter the Executive discretion of the Government under Article 35 of the Constitution. If there is any misconstruing or doubt or if there can be any potential misinterpretation that it, in effect, may be binding on the Government, we have a problem. To all intents and purposes, the Bill already reflects a significant narrowing of the discretion of the Government under the previous set of reforms dating back to 1995. It provides for three names to be recommended and five names where there are two vacancies, for example. The ranking of names in order of preference of the commission is a new element. On the basis that it is not binding, which is the overall effect of my two amendments, the Government has decided to support the change to an order of preference. Overall, my conclusion is that in respect of the constitutional function of the Government in the matter, it must have an element of choice. It must have choice in the names it may nominate for transmission to the President for ultimate appointment.

Amendments No. 81 and 83 to section 39 simply follow on from what I have set out with regard to amendments No. 77 and 78 and apply to the order of preference. I am unable to accept amendment No. 82 in the name of Deputy Clare Daly which overlaps with amendment No. 81 in my name. The amendment recognises and incorporates into the text of section 39(2) the order of preference concept. Amendment No. 74 in my name expands on the text of section 39(2) to make it clear that the expression of preference on the part of the commission will make no distinction between several vacancies. It is important that we add to the text of section 39 to put beyond any doubt the very particular aspect of the order of preference in situations where there is more than one vacancy in the same court.

With regard to amendment No. 84, the provision of the Bill, as published, whereby the names of all eligible persons will be forwarded to the Government where none or fewer than three can be recommended, was deleted by amendment. It is linked to a further amendment passed on Committee Stage which directs the commission to rerun the invitations at three-monthly intervals where no names could be recommended. Amendment No. 84 in my name seeks to reverse these amendments and address the provisions of section 40 because I am unhappy with the state of affairs left in place as a result of the amendment made on Committee Stage. I ask Members to bear in mind that the original purpose was to deal with something that would be exceptional enough in featuring, that is, a situation where the commission could only recommend fewer than three, that is, one or two, and could not recommend any person. The general thrust of the provision is based on the corresponding provision in statute that provides for the work of the JAAB. I ask Members to ensure we will have an element of consistency and that they consider previous positions with a view to supporting the amendment.

With regard to amendment No. 85, the Bill was amended on Committee Stage to remove a requirement that records and results of any interview be forwarded by the commission to the Government in respect of recommended persons. This was a new provision and a change from the JAAB provisions. It was intended to reflect the strongly perceived need for the commission to conduct interviews and inform Ministers of the outcome. The effect of amendment No. 85 is to reinstate that provision on the grounds of inconsistency.

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