Charles Flanagan (Laois, Fine Gael) | Oireachtas source

This is telling in the matter of the fundamentals of the commission, with particular reference to its status as having a non-legal majority and a non-legal chair, but that is not to describe the commission as comprising outsiders. Again, I was very careful in the context of the Bill, both in this House and the other House, to reassure people who felt that there was an imbalance here that there would be the active involvement, in the membership of the commission, of the Presidents of the Courts, all of whom I expect to be members of the commission because of their importance, expertise and experience. I invite Senator McDowell, in particular, to accept that point because I believe that they have a very important role to play in bringing a level of expertise and a high degree of experience and being in a position to strongly influence the names that ultimately go forward to Government for nomination to the President for appointment.Senator McDowell's amendment No. 78, as he freely admitted, would significantly narrow the scope of the section to relate only to:

(a) an appropriate knowledge of the decisions, and

(b) an appropriate knowledge and appropriate experience of the practice and procedure, of the High Court.

This would again serve to reflect the Senator's intentions with regard to amendment No. 90, which is an important amendment.

The scope of the section does not relate to appointments to the position of Chief Justice, President of the Court of Appeal or President of the High Court. I acknowledge that the Senator's amendment observes that clear distinction which is important.

Amendment No. 90 would introduce a senior judicial appointments committee to deal with not just those three positions of leadership, the Chief Justice, the President of the Court of Appeal and the President of the High Court, but all appointments to the Court of Appeal and the Supreme Court. I assume, therefore, that the Senator makes the section relevant only to those appointments that will remain within the ambit of the commission under this amendment.

As I indicated previously, I am giving further consideration to the amendment on the establishment of a senior judicial appointments commission. I am not sure if we can dispose of it in its entirety now, but I would be happy to continue to engage with Senators on the issue. On the conclusion of Committee Stage, I would be happy to reflect further.

Amendment No. 79 again narrows considerably reference to provisions under the section. It would require that the commission would accord with the Senator's intentions regarding the proposed committee under section 90. I am minded to acknowledge the importance of the senior appointments committee or group for the three appointments we mentioned. However, I am not sure about extending that further across the entire range of appointments the Senator wishes to encompass. This would reduce the import of the Bill in a way that is not reflective of Government policy.

I need to preserve the Government's policy in this regard, which is to construct a senior judicial appointments advisory committee but only for the top three positions as mentioned - Chief Justice, President of the Court of Appeal and President of the High Court. The Bill originally provided for that, but a Dáil committee did not favour this provision during its deliberations and it was replaced by an amendment, which, to all intents and purposes, moves the work required to recommend persons for appointment to these posts to the commission itself. I am still not satisfied with that approach. An amendment to that effect which I moved on Report Stage in the Dáil was defeated. However, I am minded to revisit the concept of a senior committee for precisely the reasons the Senator has outlined.

I still have a number of issues with the amendment. There appears to be no lay involvement from the new commission in this arrangement. I accept that a TLAC representative is provided for. Under the Senator's view of the commission, there would be no lay chair at that point. The question, therefore, of a lay chair being part of the new committee would not arise under this scheme. No lay involvement whatever from the commission is somewhat challenging and problematic.

The senior judicial appointments advisory committee contained in the Government Bill as published, which did not find favour with the Dáil, was to comprise the Chief Justice, the lay chair of the commission and the Attorney General. Perhaps the Senator might like to comment on that composition of a high-level senior appointments group. I acknowledge the success of such a group in the context of recent appointments to senior positions. I invite the Senator to explore possibilities of the Seanad further examining a high-level group with a view to reaching agreement, but acknowledging my disposition not to depart from what all Senators know - whatever about agreeing with - is Government policy.

While we can take the composition of the committee in the first instance, amendment No. 90 broadens considerably the posts to which the committee would make recommendations. I accept the importance and the differentiation of the three top judicial posts - Chief Justice, President of the Court of Appeal and President of the High Court - as distinct from ordinary members of the High Court or other judges, albeit that they are senior in office.

The Senator wishes to broaden the scope of these recommendations to cover all appointments to the Court of Appeal and Supreme Court.Having regard to the importance of these positions, they would be relatively few as a proportion of total appointments, but they are important. On Second Stage I referred to the reduction to just three names in the number of recommendations the Minister receives and to the fact that the legislation will cover the matter of the elevation or movement of a serving judge to a higher court. These are important issues which we must not lose sight of and which might not necessarily be catered for fully in the Senator's amendment, if I was disposed to accept it. I am not indicating that I will accept it but that there are aspects of these amendments which I am minded to subject to further exploration. That is why I am pleased to have the opportunity to listen to the points the Senator has made.

Under his arrangement, much of the original Bill will be lost, as it was the intention of the Government that ordinary judicial appointments to the two most senior courts would be for the commission to recommend. That would not survive the Senator's amendment. Not all appointments to the Court of Appeal or to the Supreme Court are serving judges. Some have been appointed straight from practice and I am sure that will continue, for good reason. Ultimately, I am not convinced that we should scuttle the reforming aspects of this Bill by leaving important appointments to the Court of Appeal and the Supreme Court and the elevation of serving judges outside the remit of the new commission. I am prepared to give the matter further consideration and to take further advice on it. I would be happy to hear the views of other Senators on this.

Subsection (7) of the Senator's amendment provides that not just all members of the superior courts may be informed of a relevant vacancy but that this extends to other persons as well. Other provisions provide for a maximum of three recommendations but not in any order of preference, the stipulation being that the Government shall first consider for appointment what will be described as recommended persons. I will continue to listen to the Senators on that. I will come back on Report Stage with considered amendments that will seek to address the concerns about senior level judicial appointments. At the same time, however, I cannot have a situation where the import of the Bill is, in effect, emasculated.