Ivana Bacik (Independent) | Oireachtas source

Senator McDowell raised an important point that relates to an issue I raised on the last occasion with the Minister concerning the way the Bill links with existing legislation. The Minister dealt with that point and I believe he took it as a point worthy of consideration that the definition of "practising barrister" in this legislation is not compatible with the definition in the Legal Services Regulation Act. There is a difficulty with a lack of joined-up thinking or consistency. It raises a lack of joined-up thinking within the provisions of the Bill because section 34(1) seems to disapply everything in the chapter to the most senior judicial appointments under section 44. Section 37 disapplies that chapter and Chapter 2 of Part 7 for the most senior positions. Therefore, it is very hard to see how the section 44 appointment procedure is to be run if none of the normal considerations, or the considerations that are normally to be applied by the commission in deciding on competence and merit and so on, is to be applicable when we come to the three most senior positions.

I am conscious that we have tabled amendments to section 38 trying to address some of the discrepancies or issues about these most senior positions. In subsection 44(9), for example, we see a provision that if the commission cannot recommend to the Minister any names of persons to fill these three most senior judicial vacancies, the Minister shall request the commission to seek expressions of interest and so on. I do not think there is any equivalent provision related to any other judicial offices. That is what we are seeking to address through amendment No. 84, which we will come to later. This seems to indicate a very different approach to the three most senior positions compared with the other judicial offices. It is hard to see why there is this very elaborate procedure set out for appointment to the other judicial offices, yet many of those provisions are disapplied to the three most senior judicial offices through subsection 34(1) and section 37. Is there an explanation for that?

On the points we have just discussed with regard to the names of those who are longlisted, can we say the commission cannot forward the names of those longlisted for the three most senior section 44 positions to the Government? I am looking at section 44 to see if I can see any indication there. Is the discussion we had only relevant to those non-section 44 positions? In other words, is the commission similarly precluded from supplying the names of those longlisted for Chief Justice, President of the Court of Appeal or President of the High Court to the Government as it is from supplying the names of those longlisted for other judicial appointment?A point of concern is that there are such different procedures and the Bill has been constructed in this way. It appears these procedures are all to be consistent around judicial appointment generally, yet through sections 34(1) and 37, section 36 in particular will not be applied to these three more senior positions nor will the other provisions be later in Part 7. Will the Minister explain why there is this different approach? Clearly it is intended to be different. What is the rationale for the different approach? Would it make more sense to apply the same criteria?

Given we are talking about section 36 specifically, it seems of particular concern that all of these considerations around competence, probity, character and temperament are currently not required by the appointments commission under section 44. It might be that I misunderstood this but I do not see where there are any similar or equivalent provisions relating to section 44 positions. Section 36 simply does not apply to those provisions.

When one looks at section 36(1)(d), there is a concern that similarly there will be no requirement for any person appointed under section 44 to give an undertaking in writing to the commission to take courses or courses of training or education as may be required. Perhaps we are saying there should not be any requirement for anybody appointed as Chief Justice, President of the Court of Appeal or President of the High Court to take any courses of training or education. That seems at odds with the purported general principle of the legislation that we would have continuing professional development for judges at all levels. I have been involved in the publication of various reports, in particular one on the legal process and victims of rape some years ago, a topical issue. In that, as in many other expert reports, there have often been recommendations for continuous judicial training and professional development for members of the Judiciary, including senior members of the Judiciary. It would seem odd if we are not going to apply section 36(1)(d) to the three most senior judicial positions.

It is clearly intended that the commission will only recommend the name of a person to the Minister where the person has given an undertaking that if appointed he or she will take courses or courses of training or education such as may be required. Can we square that with the provision in section 34(1) that states that this is simply not to be applied to a section 44 judicial office? There are probably other consequences of sections 34(1)(d) and 37. It is quite difficult to tease these out. When we look at section 36, it clearly has been disapplied and there is no equivalent provision relating to section 44 appointments. As a result, section 44 appointments are made in the absence of any indication as to specific criteria or conditions to be satisfied for those appointments.

That is a valid matter of concern which does require some discussion and explanation.