Seanad debates

Wednesday, 19 December 2018

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)


10:30 am

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael) | Oireachtas source

I thank the Senators for their amendments and their contribution to the debate thereon. Amendments Nos. 84 and 85 are straightforward amendments.

Essentially, Senator Bacik and colleagues propose to enable the commission to make approaches by way of a direct invitation to a particular person, including a serving member of the Judiciary, to make an application to be considered for selection. I am not inclined to accept the amendments, notwithstanding what has been said. The new arrangements for the selection and recommendation of candidates are about incorporating the process for persons to be appointed either for the first time as judges, or indeed serving judges that might be elevated under the new open process, which will be operated by the commission. The statute relevant to the qualification is amended to some extent by the Bill which sets out in essence what are basic requirements of the systems of selection and recommendation, merit criteria - upon which we had some debate, the application process, and the conditions that need to be satisfied, all of which are open, transparent, open to scrutiny and clear to everybody. This is an important component of the Bill that runs right through it by way of theme. The accountability process to the Oireachtas and to the Minister will be vital parts of a more open approach to an important area of the appointments to State offices. Part 8 of the Bill is an important set of measures. It will modernise the process and open up the procedures for selection and deal with the skills and attributes required to fulfil the function of a member of the Judiciary.

All of this is open and transparent. There will a published statement on the matter, reports to the Minister and reviews. Having listened carefully to what the Senators have said, what is sought is in effect a derogation from the norm that the Bill sets up.

I restate that the commission has an important job to do. I do not see any difficulty with the basic requirement that an application be made and that there be a process where people who need to be considered can be considered, and that consideration would be open.

I do not accept - as we discussed on the last occasion - that to make an application for public office should be regarded as an embarrassment or described as such or beneath people which is the implication. I do not see it like that. Neither do I see why any other mode of access to the process might be necessary. It is something of an unreasonable expectation to create a situation where the commission might be charged with responsibility, or might have the power or authority to invite people, or make direct contact by way of invitation with particular persons. I do not see it working. The most important point to make by way of reply to Senators is that I do not see it as being consistent with the basic tenet of openness and transparency which the Bill espouses. I cannot, therefore, accept these amendments.

Amendment No. 85 seeks to amend section 39. That amendment would have the effect of deleting from that section 39 (1), which is the reference to a person who is for the time being a serving judge or a relevant officeholder. It is tied very closely to amendment No. 84 and the points I have made on this amendment, which would provide for direct approaches by the commission or its members to judges. That really goes against the basic grain of the new legislation and I do not intend to accept it.

I have listened very carefully to Senator McDowell and he has repeated points made on the last occasion on section 44, and on section 36, which we have already debated at some length. We are now dealing with section 38 and the point raised about section 44 at that time. I am on record as having said, and I will be brief a Chathaoirligh, that the three top positions - if we can describe them as such - are positions that involve more than just officiating as a member of the Judiciary or as a judge. They involve quite a significant amount of management and administration, skills that could not be considered to be the same as those required to officiate or perform one's duties as a member of the Judiciary. That is one of the reasons I am proposing that we depart from the proposed process, but only in respect of the three positions of Chief Justice, President of the Court of Appeal and President of the High Court. I invite Senator McDowell to agree that there are good and sound reasons that we should depart in the circumstances. We will come back, however, to it during the debate on section 44, in any event.


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