Charles Flanagan (Laois, Fine Gael) | Oireachtas source

The important point is that the commission will be running the processes and making the decisions. The commission will be recommending people. Should Senators McDowell and Boyhan's amendment be accepted, we would be left with a commission which does not do the job we are setting it up to do. If it is to do the job, it will be appropriate from time to time to seek the assistance of persons with a range of skills on a short-term basis. For these reasons I will not accept the amendments.

This is about assistance and advice to the commission. The commission remains central. The consultant or the adviser will always be secondary. Any act undertaken on the part of the adviser will be to assist or to advise but it is the commission that ultimately makes the decision. It is the commission which will make that decision, having regard to the advice or assistance. Senator Norris and others have made particular play on the wording in section 11(8), "to do any other thing". This language, as Senators will be aware, having regard to the line-by-line scrutiny in which they engage daily, is inserted here to ensure that the functions of the consultant or the role of the adviser are properly circumscribed for the purpose of the Bill.

On the matter of the published selection procedures, all of the procedures and processes for a particular selection process for judicial office will have been carefully designed by the procedures committee, and we have not managed to debate in detail or scrutinise in detail the role, function and status of the procedures committee. When we do, much of the false smoke, as it were, that has been generated around this Bill will pass because the procedures committee is crucial to the process. The procedures committee will set the regulations that will be approved by the commission and published, and it will be perfectly transparent to anybody who wishes to engage in the process, whether as an applicant or a spectator. Any role for advice and assistance will be fully transparent within that procedure.

On the issue of the person versus the consultant or adviser, the idea is that the commission might and can engage the services of a person with appropriate experience as a temporary employee or under what might be a casual contract. Subsection (9) requires that any payment to such a person is subject to "the consent of the Minister and the Minister for Public Expenditure and Reform", which is a wise and sensible decision and oversight. The matter of consent is something that can be forthcoming or not, depending on the individual circumstances. The reason that the Minister must consent to the appointment of a consultant or adviser under subsection section 11(7)(b) is to ensure that there is a level of oversight of the cost of such arrangement, and I am sure that would be a matter of grave concern to Senators if it was otherwise.

I will give an example. The Legal Services Regulatory Authority is a statutory body, independent from Government, which was established under the Legal Services Regulation Act 2015. This important Act is accepted by everybody and passed through the Seanad. The independence of the Legal Services Regulatory Authority is very important. The equivalent provision in section 17 of that Act is not dissimilar to this and is subject to the approval of the Minister for Public Expenditure and Reform.

Senator Craughwell makes the point about giving information to applicants. I remind him and others of section 53(5)(h) later in this Bill which provides that procedures will have regard to "the need for good standards of communication with applicants for judicial office, and the provision otherwise of a good standard of service to them in respect of applications made by them under this Act". That is important in the context of Senator Craughwell's assertions or concerns.

I refer to section 62L in Part 2A inserted by the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015, important legislation which passed through this House not so long ago. Again the Policing Authority in certain circumstances is in a position to seek the consent of the Minister to appoint persons or consultants or advisers to assist in the performance of its functions in exactly the same way as is envisaged here. I did not have time to look back over the Seanad debate during which that Bill was being enacted but I dare say that if I were to, I do not think that I would find the level of concern that has been aired here both last night and this afternoon. I merely make the point that there is nothing new here and that it is something that has been regarded by Government as an important feature in ensuring efficiency and effectiveness, that of the expertise being available by way of a short-term contract of advice or otherwise.That is something the Government and the public service are engaging in for all the right reasons but, ultimately, I remind Senators that it will remain a matter for the commission itself, through its procedures committee, to develop best practice in dealing with applicants, including the information and the feedback that will be provided for them. This is contained in a later section of the Bill. We have given this due and careful consideration.

I am not really sure what Senator Norris means by there being three distinct persons involved in the process. It seems to me that it is quite clear that we are talking about persons as either consultants or advisers on a short-term basis. Those consultants may be persons or the advisers may be persons. Those involved will be either advisers or consultants in the same way as they are available, should they be required and should the Minister consent, in so far as the Legal Services Regulatory Authority is concerned or in the Policing Authority.