Wednesday, 19 December 2018
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
That is the point. If one reads section 38(c) in one way it seems to give the commission this wide power but it is subsequently contradicted by section 39. There is a difficulty with that. It is why we seek through amendments Nos. 84 and 85 to give the commission an explicit power to invite persons and that clears up any internal inconsistency or contradiction.
My final point is on the relationship between section 38 and section 36 which refers to the conditions to be satisfied where the commission is recommending the names of a person to the Minister. It refers to the names of a barrister, solicitor or legal academic and sets out the conditions including character, temperament, health and so on but it does not refer to serving judges. It is something we discussed in the context of section 36. I draw it to the Minister's attention because it points to some inconsistency. It appears the practising barristers, solicitors or legal academics who are the subject of appointment are subject to separate and different conditions from serving judges where there does not seem to be a justification for it. Perhaps the Minister can point me to somewhere else in the Bill where similar conditions are applied for serving judges. It seems odd that section 36 does not relate in any way to those who are serving judges or officeholders. Where they are being recommended for appointment there is no such conditionality on their appointment. The commission does not need to assure the Minister the person has displayed the various characteristics that are required.It may be that reading section 36(1), one might say that some parts of it do apply to serving judges, notably sections 36(1)(b) and (c). One could argue the character, temperament and health grounds and the undertaking in writing to take courses, and so on, refers to all persons recommended to the Minister, whereas it is only section 36(1)(a) that refers to barristers, solicitors or legal academics. There is a lack of clarity there as to whether this section applies to serving judges who are being recommended for appointment by the commission. It is by way of justification of our amendments Nos. 85 and 85 that we are seeking to resolve an internal contradiction or inconsistency within the legislation.
There are others too between sections 38 and 36; 38 and 44; and 38 and 39. On Report Stage we may look to put in further amendments to resolve these serious issues because our amendments only go some of the way to resolving some of these quite serious issues between the different sections of the Bill.