Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move amendment No. 87:

In page 29, to delete lines 26 to 40, and in page 30, to delete lines 1 to 42 and substitute the following: “Appointment as Chief Justice, President of the Court of Appeal, and President of the High Court 42. (1) Where—

(a) the judicial office of Chief Justice, President of the Court of Appeal or President of the High Court stands vacant, or

(b) the Minister reasonably apprehends that any of those offices will stand vacant, the Minister shall request the Commission to seek expressions of interest on the part of eligible persons who wish to be considered for appointment to such office and to forward the names of all eligible persons expressing such interest to the Minister, together with particulars relating to the education, professional qualifications, experience and character of those persons.

(2) On subsection (1)being complied with, the Minister shall convene a meeting of the following persons—

(a) the Chief Justice or, in the case specified in subsection (4), the person specified by that subsection to be the relevant person for the purposes of this paragraph,

(b) the chairperson, and

(c) subject to subsection (10), the Attorney General, and those persons, so convened, shall be known as the Senior Judicial Appointments Advisory Committee (in this section referred to as the “Advisory Committee”) who shall consider the suitability of all of those persons whose names have been forwarded by the Commission under subsection (1)and, subject tosubsection (5), shall recommend, from among those persons, to the Government the names of 3 persons, ranked in the order of the Advisory Committee’s preference, for appointment to the judicial office referred to in subsection (1).

(3) Nothing in subsection (2)shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to the judicial office concerned.

(4) Where the vacancy concerned (whether an actual or apprehended vacancy) is that of the judicial office of Chief Justice, the relevant person for the purposes of subsection (2)(a)is—

(a) subject to paragraph (b), the President of the Court of Appeal, or

(b) if the President of the Court of Appeal has expressed, in relation to the foregoing judicial office, the interest referred to in subsection (1), the next most senior judge available, that is to say whoever of the judges specified in paragraphs (c) to (k) of section 9 (substituted by section 28 of the Court of Appeal Act 2014) of the Courts of Justice Act 1924 ranks first in precedence (after the President of the Court of Appeal) in accordance with that section 9 and who is available to serve on the Advisory Committee (excepting for this purpose any such judge who, in relation to the foregoing judicial office, has expressed the interest referred to in subsection (1)).

(5) If the Advisory Committee, having considered the suitability of all of those persons whose names have been forwarded by the Commission under subsection (1)—

(a) decide that they cannot recommend to the Government the names of 3 persons for appointment to the judicial office referred to insubsection (1)but can recommend the names of a lesser number of persons for that purpose, then they shall recommend, under subsection (2), to the Government the names of that lesser number of persons for appointment to the judicial office so referred to, or

(b) decide that they cannot recommend to the Government the names of any persons for appointment to the judicial office referred to in subsection (1), then they shall inform the Government of that fact.

(6) The cases to which subsection (5)applies include a case in which the number of eligible persons who, in relation to the judicial office concerned, have expressed the interest referred to in subsection (1)is less than 3.

(7) In a case to whichsubsection (5)(a)applies, the Advisory Committee shall ensure its recommendation is accompanied by a statement of the name of each eligible person (other than a person the subject of their recommendation) who expressed, in relation to the judicial office concerned, the interest referred to in subsection (1).

(8) On informing the Government, in a case to which subsection (5)(b)applies, of the matter referred to in that provision, the Advisory Committee shall furnish to the Government a statement of the name of every eligible person who expressed, in relation to the judicial office concerned, the interest referred to in subsection (1).

(9) Any decision of the Advisory Committee made under subsection (2)or (5)shall be a unanimous one.

(10) Where the Attorney General expresses, in relation to the judicial office concerned, the interest referred to in subsection (1), then subsection (2), and the other provisions of this section, shall apply and have effect as if paragraph (c)of subsection (2)were omitted.

(11) In this section “eligible person” means a person who the Commission is satisfied is qualified for appointment to the judicial office concerned by virtue of section 5 or 45A of the Act of 1961.”.

Section 46 is being replaced by a new section 42 which removes from the Bill the role and functions of the senior judicial appointments advisory committee which, as Members will be aware, was composed of the Chief Justice, a lay chair and the Attorney General, in order that the function of recommending names for appointment as Chief Justice, President of the Court of Appeal and President of the High Court will fall back on the commission. In addition, for these appointments the new section mirrors the provisions of section 38 which relates to ranking in order of preference and section 40 which relates to the re-running of invitations when a name cannot be recommended.

I have reflected on this matter with some care since Committee Stage. I have concluded that it is not a viable option for me to accept that the commission as a whole which includes the specified three members can perform the task now conferred on it by section 42. My strong preference, therefore, is to reinstate the original section, as published, replacing the new section 42 with amendment No. 87 in my name. The reinstated section I propose is, however, adjusted by providing for the order of preference, in line with the approach adopted under section 38, but it will not allow for the re-running of invitations when a person cannot be recommended. Details of eligible persons who have expressed an interest will be furnished to the Government, these points being in line with my approach to recommendations generally under the Bill.

I see the role of the Chief Justice and that of the Presidents of the courts as meriting a two-stage process, whereby, in the first instance, the commission obtains expressions of interest and those eligible persons are then considered by a committee specially convened for the purpose. There will be judicial involvement, lay involvement and the involvement of the Attorney General. That will allow for the appropriate and complementary contributions in the making of recommendations to the Government. Recently, we had the very useful practical experience of using an arrangement adapting these provisions in respect of the positions of Chief Justice and the President of the Court of Appeal. Up to this, only the Government had a hand in such appointments. The experience of the new model demonstrates that the combination of the relevant expertise is an appropriate model to deal with what will be very infrequent appointments. I specifically invite the main Opposition spokesperson who has made public comment on both appointments to agree with me that this model is both appropriate and workable and has been seen to be both in the past 12 months. The amendment acknowledges what was a very positive experience and the intention is to put it on a statutory footing.

I will briefly refer to amendment No. 88 in the name of Deputy Mick Wallace. The amendment seeks to move the section 42 “expression of interest” process to the commission proper. We have discussed that issue at some length. I will not accept the amendment because I am not convinced that it would be move the procedure into that of the mainstream commission.

Amendment No. 89 also in the name of Deputy Mick Wallace is consequential on amendment No. 88. It envisages that potential candidates for the most senior judicial positions would make a formal application under the commission process, as distinct from an expression of interest. As I have stated, the “expression of interest” procedure has worked and is working. Section 42 will prescribe it in full on a formal basis. I point out to the Deputy that, in respect of recent appointments, there is no greater example of endorsement than to say the proof of the pudding is in the eating, as it were. I think that is what we have seen. Therefore, I am not minded to depart from the “expression of interest” route.

On amendment No. 90, I appreciate what Deputy Mick Wallace is seeking to achieve, but I do not see the necessity for the amendment because there is nothing whatsoever to prevent the published statements to which he refers from referencing one or all three of the most senior judicial positions. In the circumstances, it would be overly prescriptive to take the route proposed by the Deputy, especially having regard to the provisions of section 49.

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