John Curran (Dublin Mid West, Fianna Fail)

The amendment provides for the replacement of section 12(1) which provides that the President of the High Court having consulted with the Minister would invite a serving High Court judge to undertake the duties specified. If the invitation were accepted the Government would designate the judge for the purpose of performing those functions. The amendment provides that the Minister would invite a retired judge to perform the functions specified in the section and would designate the judge for those purposes if the invitation were accepted.

The oversight functions of the designated judge set out in the section are not judicial functions nor are they intended to be functions for which the person concerned would be in receipt of a stipend. In carrying out functions under section 12, the judge would be performing neither legislative nor executive functions. It is clear any judge who takes up such functions would have the approval of the President of the High Court in doing so. In terms of the Constitution there is no objection in principle to a serving judge performing non-judicial tasks. If the person designated to undertake these functions were a retired judge, he or she would require some form of fee or payment for the task and there is no provision in the Bill for the creation of a paid post.

In reply to Senator Bacik, as Senator Regan said, this mirrors the 1993 Act. Senator Bacik raised this point on Second Stage and while the Attorney General's office would have reviewed the legislation, I asked for clarification on this particular point at the specific request of the Senator and the Attorney General is satisfied.