Clare Daly (Dublin Fingal, Independent) | Oireachtas source

There are a lot of things going. In half of them what the Government is trying to do is undo the changes brought forward at the select committee. Amendment No. 75 in our name and that of the Government does the same thing but for very different reasons. In the Government's case, it is being brought forward to preserve the special procedure involving the Chief Justice, the Attorney General and the chairperson, known as the senior judicial appointments committee, coming together to agree on who should be nominated for appointment as Chief Justice, the President of the Court of Appeal or the President of the High Court, whereas in our case it is to preserve an amendment we succeeded in having accepted on Committee Stage, namely, that it is the commission that will make the decisions on senior judicial appointments, albeit using a slightly different procedure than that used for other judicial appointments, rather than a conclave of the three individuals to which the Government seems to be wedded. Without amendment No. 75, the procedure for appointing senior judges would be very confused; therefore, it is necessary. We have to make the point that the Government is attempting in some of the amendments in this group to do away with our successful committee amendment which took senior judicial appointments out of the hand of the conclave, for example, in amendment No. 87 which is in a different group of amendments. That is why this batch is slightly confusing.

Amendment No. 76 in our name and the Minister's is harmless enough. It proposes to delete the word "publicly". It arose because on Committee Stage we got the words "shall publicly" inserted. The "shall" was more important to us than the "publicly". We are happy enough with that.

We are also happy with our amendment and the Government's amendments Nos. 77 and 81. We are happy to withdraw our amendment No. 82 in deference to the Minister's amendment No. 81 which is better drafted than ours. On Committee Stage, despite fierce resistance from the Government, we succeeded in obliging the Government to rank its judicial nominees in order of preference and, while the Government expressed concern that it might not be constitutional, we are very glad the Minister has pulled back from that position and agrees that there is no constitutional impediment to the commission ranking nominees. The Bar Council of Ireland and the Judicial Appointments Review Council suggested this and if we did not allow the commission to rank applicants we would end up with a commission that would differ from the current system only in its make-up, the outcomes would inevitably be the same. That should not be what we are aiming for out of this process.

Amendments Nos. 78 and 83 are the Government's way of reassuring itself as to the constitutionality of the commission being empowered to rank the nominees it is putting forward. We do not think they are necessary. They are redundant, a bit of window dressing but we are not going to lose any sleep over it. We know that ranking does not limit the Government in who it can tell the President to appoint. In amendment No. 84 the Government is trying to re-gift itself the power to completely ignore the commission's advice in a circumstance where the commission cannot in good conscience recommend anybody for appointment. We are strenuously opposed to this. The amendment means that after the commission has been through the whole process of inviting applications, going through CVs, interviewing applicants, debating the applicants' merits, drawing up a short list, sending it to Government, the Government can say it could not be arsed, it is not going to nominate any of these people. The Government could appoint somebody whom the commission has actively rejected. It is a nonsense. It could appoint somebody who had not even applied. Under amendment No. 85 the Government will force the commission to gather up all the application documents that it has gone through painstakingly, send them to the Government only for it to do the very thing the Bill is intended to stop and appoint whoever it likes as a judge.

Amendments Nos. 84 and 85 are re-gifting the power to the Government, a change we succeeded in getting on Committee Stage, that where the commission could not in good conscience recommend anybody for appointment it should be asked to re-advertise every three months until it recommends at least one person. That is in the Bill now and the Government wants to get rid of it. On Committee Stage the Minister argued against our amendment saying vacancies have to be filled and all that sort of good stuff. In effect, what he is saying is that the commission does not think any of the applicants are qualified to fill a vacancy. Rather than allow the commission to go out and find someone good, the Government thinks it is better that it go ahead and appoint whoever it likes. This is serious and that is not good enough.

We are talking about circumstances in which the commission could not recommend anyone. That would be incredibly rare because the commission has the power to recommend three names for a vacancy but it does not have to. It could recommend one. We are talking about circumstances where it cannot recommend any, which would be exceptional. What is so wrong if once in a lifetime it has to re-advertise a position? That is a better way of going about it.

Amendment No. 92 is our attempt to make it so that the Government can consider for appointment only people that the commission nominates. We went through this at length on Committee Stage and I am not going to rehash the arguments. I just want to briefly reiterate that the Bar Council argued in its 2014 submission on the reform of the judicial appointments process that only candidates recommended by Judicial Appointments Advisory Board, JAAB, should be eligible for appointment. The Government is fettered in its choice in law with regard to judicial appointments. What we propose is no different from that. The Minister tried to say it was unconstitutional. I do not buy that. I would love to be a judge. I would like that more than anything else in the whole world but I cannot be appointed as a judge because I am not a barrister or solicitor. There are restrictions already in law as to who can be appointed. Our putting in a criterion to say a person can be appointed a judge only if he or she is recommended by the judicial appointments commission is no different from any other restriction in law and there are plenty of restrictions when it comes to appointing judges.

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