Seanad debates

Tuesday, 10 July 2018

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

 

10:30 am

Photo of Michael McDowellMichael McDowell (Independent) | Oireachtas source

We agree on it, but the point I want to make is that someone in the position of practising barrister or solicitor who henceforth contemplates applying to the commission for appointment will be entitled to know who will be evaluating and scrutinising him or her before the process starts or will not be so entitled. As legislators, we are entitled to know what kind of person will be given this role in the evaluation of appointees or will be someone operating under an intermittent contract? What kind of person will be given this right under section 11(8)(b)? I am very clear in my mind that, until we receive straight answers on the involvement of commissioners, we should not pass the Bill and that delaying its passage is an act of friendship not merely to the Constitution but also to the people.

We need a straight answer to the question of what the people concerned are to be paid. I have no doubt that the Accounting Officer for the Department of Justice and Equality is making plans for the financing of the commission. If it is not included in the budget for next year, it will be included in the budget for the year after that. The Accounting Officer must have a clear idea of what the 17 members, other than those not entitled to receive any remuneration, are to be paid. She must have an idea of their terms and conditions on which they will be employed. She must have an idea of the extent of the personal commitment that will be required of them. If we imagine a graph, there is a trade-off between personal commitment and remuneration, on the one hand, and, on the other, the use of consultants to do all of the work for the commission in carrying out evaluations in order to "assist" its members in making appointments. That trade-off is crucial in determining whether the commission is worth anything at all. Are the commissioners to end up in a position where they will be given pre-heated and pre-cooked evaluations of persons applying to be High Court judges drawn up by individuals acting under contract or as appointed consultants or advisers to the commission? They will be responsible to no one for the way in which they will carry out their functions, except, perhaps, to the commission and - this is an important point - their prejudices, interests, attitudes and ideologies which could be all-important in determining or colouring their advice on the applicants' suitability for appointment. If we are not to know the answers to these questions, we should not be establishing a commission which will operate on this basis. As I said, there is a trade-off between the commitment that will be required of commissioners and the extent to which the consultants, contractors or advisers will be used because at one extreme of the spectrum the commission could become a complete rubber stamp and at the other it could be doing all of the work and relying very little on the consultants. One thing is very simple - the less the commissioners are to be paid, the more dependent they will bound to be on the paid evaluators. If that is where we are going, we are entitled, here and now in this House, to straight answers about the balance to be struck and not to be told, "It is for the commissioners. They are independent." They will not. They will not be independent when it comes to their own income. They will not be independent in the flow of work they will have to do. The only thing by which they will be driven in terms of their independence and finance is turning on and off of the tap of financial resources in considering whether to use consultants, with the consent of the Minister. I am deeply worried by this provision.

I said there were three aspects to subsection (8). There is the activity contemplated in paragraph (a) and the activity contemplated in paragraph (b). However, when Bletchley Park works out what the last paragraph actually means-----

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