Michael McDowell (Independent) | Oireachtas source

Exactly. What are we talking about here, and why should we tolerate this?

The objections I have, and I believe they are well merited, are as follows. First, the commission is being given a broad licence to delegate an important part of its function, namely, assessment at a preliminary stage and further evaluation as to suitability, to a third party that is not a member of the commission and not bound by the rules of appointment to the commission. As I said, the commission can appoint individual people - by the way, "person" under the Interpretation Act means a company as well - who are consultants or advisers to carry out this work. It can enter into a contract with any person but with the consent of the Minister appoint consultants or advisers. If it is the case that subsection (7)(a) purely entitles the commission to enter into contracts, that is already covered by paragraph 4 of the Schedule to the Bill, concerning the power to enter into contracts.

Subsection (8) is the curious thing. It states:

Any contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (7)may enable the person, consultant or adviser to—(a) advise and assist the Commission in its consideration of applicants at a preliminary stage in the course of the selection procedures.

This means that a limited liability company can be appointed to carry out this function. Second, any such person, consultant or adviser, having done that - because the word "and" appears in the text - can then go on to "provide an evaluation or an assessment of an applicant's suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures". What are we talking about here? Is diversity to be delegated or contracted out to a private company, a large solicitors' practice, a large accountancy practice, a management consultancy or an international recruitment agency? We simply do not know.

Then we come to the provision that carrying out these two functions, "shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function [that is, in making a decision in the course of carrying out these procedures] to do any other thing". If it stopped there, that would be one thing, but it then states, "other than a thing which facilitates such performance". I cannot follow this qualification. If the Bill states the commission cannot do anything else, that is fine, but then it states, "other than a thing which facilitates such performance". What does the word "performance" refer back to? It is for the purpose of performance by the commission of that function. Then one goes back to what the function referred to is and it appears to be the function of assisting the commission to make any decision in the course of carrying out these procedures. I am utterly mystified as to what this is supposed to do.

Then we see a subsection (9), in which it is proposed that the Minister and the Minister for Public Expenditure and Reform have a whip hand in respect of the fees that would be paid to such third parties. Then there is a provision that "[t]he appointment of a person as a consultant or adviser shall be for such period and, subject to subsection 9[that is, the veto of the two Ministers], be on such terms and conditions as the Commission considers appropriate". If the commission is going to have its own building, its own officer, its own chief executive, its own committees and 17 members, why should it not carry out the preliminary examination of all applications to it or at least allow a sub-committee of it to do so, assisted by the staff of the commission? Presumably, there will be more than one person on the staff of this commission. Why should this not be done by someone under direct and absolute control as an employee of the commission? Why should it be given to someone who has a kind of privatised contractual relationship of contracting out an aspect of the commission's work?

I find it very difficult to understand the purpose of and the justification for these provisions. Clearly, they raise a number of flags in respect of the assurances the Minister has given us thus far in the debate. They clearly raise a query as to whether the commission itself will carry out the legwork and the donkey work that it must carry out or whether it will be a body to which a file is sent up and it then just decides, on the basis of recommendations from a third party, what it really wants to do. As I understood it, it was intended that the commission should carry out interviews. However, it now appears, if one looks at these provisions, that subsection (8) would permit the contracting out of that work to companies or other bodies at the request of the commission but subject to the consent of the Minister for Justice and Equality. It flies in the face of all the assurances we have got about independence, diversity and all the rest of it if this commission of 17 people will in fact carry out its operations at one remove from the persons who thought that this would be an entirely new procedure. It seems to reverse it to many of the problems which I identified when I served on the Judicial Appointments Advisory Board and as Minister, after I had ceased to be Attorney General, in respect of the JAAB legislation. This commission will look at reports by so-called consultants or so-called advisers, or "persons", whatever that means - and it does include companies - and will look at paperwork prepared by them at a preliminary stage and a later evaluation or assessment of suitability that would assist the commission in making the decision and carrying out these procedures. I am deeply suspicious of this. I can see no justification for it. If this is supposed to be an improvement on what happened before, I do not see how.I have said enough about the matter and wish to hear some answers and justification for these subsections. I wish to put on the record my very strong objection to the notion that a body as complex as this and involving such intricate membership and recruitment procedures should operate at second hand on the basis of the preliminary consideration and evaluation of the suitability of applicants by third parties. That flies in the face of everything I understand of the intention of the Bill. It would not only apply in regard to applicants for appointment to the District Court of whom the members of the commission may never have heard but, rather, would also apply in regard to serving members of the High Court who wish to be considered for appointment to the Supreme Court or the Court of Appeal, or serving members of the Circuit Court who apply for appointment the High Court, etc.

I note that the Bill proposes that judges of the District Court would be eligible for direct appointment to the High Court, which is strange, although I will not dwell on it for too long. Service in the District Court is not the best preparation for being a High Court judge. Being a good District Court judge involves getting through a large volume of business with speed, efficiency and simplicity in a manner that would be inappropriate for the superior courts, where issues take days or weeks to consider.

I am deeply worried by sections 11(7) to (10), inclusive, and have heard no public explanation as to why they are a good idea. It could have many negative repercussions. That is why we have tabled amendment No. 29, which proposes the deletion of sections 11(7) to (10), inclusive.