Clare Daly (Dublin Fingal, Independent) | Oireachtas source

This illustrates once again the many problems with the Bill. Amendment No. 87 seeks to restore to the Bill the provision that the most senior judicial appointments, that of the Chief Justice, the President of the High Court and the President of the Court of Appeal are not made by the commission but by a tiny conclave of the Chief Justice, Attorney General and the chairperson of the commission at a meeting convened by the Minister. We discussed this on Committee Stage and I am not going to wear myself out making the same arguments again. The use of the word "convene" does not explicitly exclude the Minister from sitting in on a meeting of the most senior judicial appointments committee. We discussed this on Committee Stage and it is still vague. Convene means to bring together a group of people for a meeting or to meet for a meeting. Therefore, it is open to the Minister to sit in on the meeting, although he or she does not have to do so, such is the vagueness of the language. The use of the word "convene" means that we are possibly looking, not at a three person meeting but at a four person meeting, with the Minister in attendance. This represents a blurring of the lines between two properly separate stages of the judicial appointments process. Why does the Minister need to seek to interfere with the commission's work and its independence in convening the meeting, particularly if he or she is going to attend? That is a little ridiculous and goes against all of the Council of Europe's recommendations.

On Committee Stage our proposal that senior judicial appointments be made by the commission as a whole succeeded. That is logical. We have been through this big fanfare around this commission that is going to be an oversight body for judicial appointments and then we bin it all and elect a little super group to do the most important, senior appointments. It makes a mockery of the rest of the legislation. We won that argument on Committee Stage and succeeded in providing that the commission would deal with senior appointments and would follow the exact same procedure for such appointments as for all others. This includes ranking the names being put forward and being allowed to recommend fewer than three people if it cannot in good conscience recommend that number. We had also provided that the commission would be obliged to rerun the selection process in the unlikely event that it could not recommend anyone for appointment. That provision has not succeeded at this stage but that is generally the situation that applies in the Bill at the moment. The Minister said previously that with the commission as it is currently constituted, there might be a problem with lower ranking judges deliberating on who should fill the vacancies at higher ranks but I do not buy that argument at all. I do not see any legal impediment to this. I do not see a problem with it in theory either because if these are men and women who are noted for their judicious thinking and independence, which we are always told is the case and it is generally so, then they should be able to manage the job of recommending people to ranks above their own. If lay people can do it, I am quite sure that judges can do it too.

One of the key problems with amendment No. 87 is the presence of the Attorney General and potentially, of the Minister, at meetings of the senior appointments committee. The committee itself is problematic. It is a small committee and the fact that the commission is sidelined in these crucial appointments goes against the grain of the Bill. It seems mad to go to all of the trouble and expense of creating a judicial appointments commission and then not give it the most important job in the land when it comes to judicial appointments. It is a little bit crazy.

Given that we are a little bit ahead of ourselves today, perhaps the Minister, in the interests of transparency, will answer questions about the process used recently to select the President of the Court of Appeal, Mr. George Birmingham. The 1995 Act provides that JAAB has no role in any of these senior appointments, which are purely political, which goes against European best practice. Did anad hoc, four person committee with no legislative basis make the recent appointment of a President of the Court of Appeal, as has been hinted at in the media? Who were the four people involved? I assume the committee comprised the Minister for Justice and Equality, the Taoiseach, the Minister for Transport, Tourism and Sport, Deputy Ross, and the Minister of State, Deputy Finian McGrath. How did that appointment come about? When one looks at that and at what the Government is trying to with amendment No. 87, which is to undo the work we did on Committee Stage, one sees the hypocrisy behind the Government's stance on this.

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