Michael McDowell (Independent) | Oireachtas source

I move amendment No. 46:

In page 14, lines 27 to 29, to delete all words from and including “the” where it secondly occurs in line 27 down to and including “meeting” in line 29 and substitute “the acting Chairperson shall be a member who holds judicial office in accordance with seniority”.

Section 15(3)(b) outlines that at a meeting of the commission, "if and so long as the chairperson is not present or if that office is vacant, the other members of the Commission, as the case may be, who are present shall choose another one of its lay members to be chairperson of the meeting". This is part of the process of rubbing the judicial nose in it. The Chief Justice will be present and the chairperson is unavoidably absent. The President of the High Court will be present, as will the President of the Court of Appeal, the President of the District Court and the President of the Circuit Court. There will also be a barrister and a solicitor present. This is a statement to the effect that none of them may take the chair in the absence of the chairperson. It is part of a vindictive and insulting approach to the Judiciary instigated by one member of the Government. If it is to be a collegiate body, a member of one group is not even to be allowed to take the chair in the unavoidable absence of the lay chairperson and it is to be prohibited by law, what is the reasoning behind it? It has been designed to split the group into two bodies and, effectively, set them against each other. I strongly believe there is no excuse for it whatsoever. If there is to be a lay chairperson, that should be taken as a given. We have not yet passed the legislation, but if it ends up with this, why, in the absence of the lay chairperson due to illness or whatever other reason, should it be the case that none of the lawyers present can be allowed to act in the place of that person? It is ridiculous, vindictive and nasty in its tone. It is insulting to senior law and constitutional officers of the State that they are prohibited from acting in the absence of the chairperson of the commission, that anybody, no matter who he or she may be, an act instead of them as chairperson. What is the excuse for this? What is the rationale for it? Why is this being done to the Judiciary? It is disgraceful and slightly stomach churning to think that it is being inserted into the law. If the Minister had any respect for the Constitution, he would at least accept that the Chief Justice who is a member of the Presidential Commission in the absence of the President could act as chairperson, even casually, at a meeting of the commission. These are high constitutional offices of State. The people appointed to them take an oath to be impartial, uphold the law, be fair to all people and uphold the Constitution, yet the Bill shoves their nose and grinds their face in it and states they are unsuitable, even on a casual and intermittent basis, ever to chair the meeting of a body at which they are present. It is a statement of distrust, disqualification and semi-concealed contempt that the people concerned are told that somehow they are not trusted by these Houses to function in the absence of the lay chairperson, even as his or her stand-in.

Why is this being done? Who really wants it to be done? Is there anybody in this House who actually wants it to be done, including the Minister? Does he really want to say that at a meeting of this kind a group of senior officials appointed under the Constitution to hold high constitutional office is somehow not to be trusted or considered to be unworthy or disqualified from acting in the temporary absence of the chairperson? This vindictive, nasty streak, which, unfortunately, colours the legislation from beginning to end, which explains its motivation and is clear in its intent indicates to the people concerned by way of statutory insult that if, perchance, the chairperson misses a meeting, he or she cannot ask any of them to act in his or her place. That is so wrong and indefensible. It makes no sense whatsoever and is part of a pattern of repetition of this insult across the remaining sections of the Bill because it does not simply apply to this measure, it also applies to the procedures committee and in a number of respects.

One of the most extraordinary aspects of the legislation is section 15(5) which states: “The quorum for a meeting of the Commission shall, unless the Minister otherwise directs, be 9 members, 5 of whom shall be lay members”. There are 17 people on the commission and the majority of nine members, five, must be lay members. If fewer than five lay members turn up for whatever reason - one could have five or six judges present, with the person representing the Bar Council and solicitors - the meeting cannot proceed.Who thinks up these silly, petty, little points? Only a vindictive and nasty mind could. Unfortunately, appeasing that kind of mentality is what is happening here. Why should a meeting of the commission at which, for whatever reason, only four of the seven or eight laypersons turn up be invalid and have to be abandoned? It is only because one petty, little mind is determined to incorporate in statute form an insult directed at the Judiciary at large. Why would it be that, if the Chief Justice, the Presidents of the Court of Appeal, the High Court, the District Court and the Circuit Court, two representatives of the professional bodies and four others - that is 13 - turned up, the meeting would be invalid because only four of them were lay people? There is something very wrong with that.

There is also something illogical about it. We would not do it anywhere else. I have sometimes heard at committee meetings relating to this House a suggestion that the Opposition should provide part of the quorum. That is one thing, but to say to the majority who turn up that it is an invalid meeting because there are not, for example, four members of Fianna Fáil or three members of Sinn Féin present is an absurdity. However, that is what is being proposed in this legislation.

I find this deliberately offensive to the Judiciary. I see no reason for the Judiciary to be treated in this vindictive way. It may well be that, for some casual reason on some casual occasion, the numbers will slip to four lay people out of eight. It is entirely predictable that something like that could happen. To say that the whole meeting must be abandoned because someone has a flat tyre, bringing the total lay membership below five, is grotesque. No one could rationally defend this proposal, yet we are being asked to give it the status of law. The only rationale for it is that the other people could not be trusted to be fair or decent when acting in the absence of at least five lay people. Even though they are in a clear minority in such circumstances, the fact that they are in a minority of fewer than five means that the whole meeting becomes invalid.

Sometimes, I despair of the irrationality of this legislation. The only solace I get from it is this: I am confident that a time will come between the passing of this Bill, if it contains these obnoxious provisions, and its enactment that a decent Government, one that is not controlled in the way this one is and is not required at the instance of one member to be vindictive and nasty in its legislation, will take a second look at these provisions and pass a quick amending Bill to bring rationality and decency to the judicial appointments commission. I hope that that set of circumstances emerges. I see the sparring between the two major parties and people talking about general elections in the offing. I noted the Acting Chairman's remarks when he was out of the Chair as to why that should not happen in the short run. I accept his logic, but whenever the circumstances arise, as I am confident they will, and the vindictive source of this insulting attitude to the Judiciary no longer holds sway in the corridors of power, I hope that this Parliament will have the good sense to clear out all of the nasty debris from this legislation, make it fair and reasonable and send a message to the Chief Justice and the other Presidents of the courts that they are not second-class citizens and are to be trusted, and that the people believe that, when they took the constitutional declaration of office to uphold the laws and to be fair and impartial in the discharge of their judicial functions, they will act fairly and impartially as chair of this body if it came to be that it was appropriate and was the will of this body that one of them should chair it.

I will not push the matter any further. At this stage, I would like to hear the Minister's defence for the quorum provision. This provision is absurd and will be affected by accidents and car crashes. The Government will be waiting for a recommendation one day but will not get it because four of the eight lay members of the commission will, for some reason, not be available to make a decision and the whole commission will be inquorate. It is grotesque. Why would any sensible person do this? In some of the coverage that I saw, it was interesting that the Minister for Transport, Tourism and Sport, Deputy Ross, told the newspapers that he had a personal interest and input into this Bill. The signs are all over it; malice drips from every section of this Bill. I believe-----