Wednesday, 19 December 2018
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
I move amendment No. 85b:
In page 28, between lines 7 and 8, to insert the following:“(5) Nothing in this Act shall require any member of the Supreme Court, the Court of Appeal, or the High Court to apply to the Commission for consideration for appointment to any other judicial office in any of those courts (including the offices of the Chief Justice, President of the Court of Appeal, or President of the High Court).
(6) A member of the Supreme Court, the Court of Appeal or the High Court may notify the Secretary to the Government in writing of his or her willingness and availability to be appointed to any vacancy for any judicial office mentioned in subsection (5).
(7) Where a judicial office mentioned in subsection (5) stands vacant or where the Minister reasonably apprehends that it will stand vacant, the Minister shall request the Commission to seek expressions of interest on the part of any other eligible persons for appointment to such office.”.
The purpose of this additional amendment, which was circulated on 18 December, is to add three subsections - subsections (5), (6) and (7) - to section 39. The proposed subsection (5) will read "Nothing in this Act shall require any member of the Supreme Court, the Court of Appeal, or the High Court to apply to the Commission for consideration for appointment to any other judicial office in any of those courts (including the offices of the Chief Justice, President of the Court of Appeal, or President of the High Court)." The proposed subsection (6) states "A member of the Supreme Court, the Court of Appeal or the High Court may notify the Secretary to the Government in writing of his or her willingness and availability to be appointed to any vacancy for any judicial office mentioned in subsection (5)." The proposed subsection (7) states "Where a judicial office mentioned in subsection (5) stands vacant or where the Minister reasonably apprehends that it will stand vacant, the Minister shall request the Commission to seek expressions of interest on the part of any other eligible persons for appointment to such office."
The amendment is in line with the previous amendments that have been tabled by Senators Boyhan, Craughwell, Norris and me. The effect of this would be that no member of whatever kind of the Supreme Court, the Court of the Appeal or the High Court would be required to make an application to the commission for appointment to any other judicial office in any of those courts including the three presidencies the Minister has mentioned and which he has in mind for an amendment to section 44. Subsection (6) preserves the present situation that serving judges are entitled, under present convention, to write to the Secretary to the Government and say they are willing and available to be appointed to a vacancy that has arisen or which is about to arise in any of those courts. Subsection (7) makes it clear that where one of those offices is vacant, the judicial appointments commission would nonetheless retain its function of seeking expressions of interest on the part of any other eligible person for appointment to such office. I cannot see what is wrong with the present situation where if, for instance, the position of Chief Justice or that of an ordinary judge on the Supreme Court becomes vacant or is about to be become vacant by reason of the present incumbent approaching retirement age, a member of one of those courts, for instance an ordinary member of the Supreme Court, who is interested in becoming Chief Justice simply writes a letter to the Secretary to the Government informing it in very simple terms that he or she is willing and available to be appointed to the vacancy.The advantage of such an arrangement is that it provides a channel of communication between sitting members of the Judiciary and the Government through a formalised procedure that goes through the Secretary of the Government, and it entitles them to apprise the Government of the real situation with regard to who is or is not available and who is or is not interested. The Government can then see there are eight, 12 or 15 people interested in being made an ordinary member of the Supreme Court and it can take a look at them. Unless this provision is put in place the Government, when considering the shortlist, will be completely in the dark in respect of who is willing to be appointed but is not named in the shortlist. In my view, when confronted with a shortlist the constitutional function of the Government is to ask if that is the best there is. There cannot be a presumption that this shortlist is the best that is available and that the Government should be blind and kept ignorant of the fact that other members of the Judiciary wish to be appointed. What possible excuse is there for saying to the Government if it is going to fill a position in one of these courts that it cannot be informed of the availability of an eligible person? If one of those people is an existing member of those courts who, by virtue of his or her appointment, is entitled to sit in any of those courts at the invitation of the relevant President or the Chief Justice, the Government could not judge whether the shortlist is good or bad. One would be putting the Government at a deliberate disadvantage by putting it in a state of deliberate ignorance as to the true state of affairs. If there are no means whereby the Government can be informed that although that may be the shortlist there were five other members of the superior courts' Judiciary who were interested in the relevant vacancy then one is telling the Government that it must make a decision to either accept the confines of the shortlist in front of it or make a wild stab and guess that some other person not on the shortlist might, if he or she was approached informally outside of the whole process, be a person who was a disappointed applicant or be a person who did not apply but was at all times willing to be appointed.
We again come to a fundamental constitutional objection to what this Bill is all about and to what the Minister referred to as the spirit of this Bill. It is the function of the Executive under our Constitution to recommend to the President persons for appointment to the High Court, the Court of Appeal and the Supreme Court. That is a constitutional arrangement. It is the function of the Executive to meet and act as a collective authority, as the Constitution requires it to do. It is not merely its function; it is also its duty to consider all the available options open to the Executive and to decide the appropriate step to take. These are constitutional functions, duties and prerogatives of the Executive of the State under our Constitution. It is not permissible to deliberately put the Government into a state of ignorance through clumsy and ill-considered legislation, and when confronted with a shortlist to be deliberately kept in the dark as to other alternatives that it might consider when making a decision, if the Government was aware that those alternatives were really open to it. That is the constitutional issue here.
The Constitution gives certain rights to the Legislature to make laws. The Constitution gives certain functions to the Government as elected in accordance with the Constitution and under separation of powers to carry out certain Executive functions. The Constitution delineates between legislative, executive and judicial functions. Under the Constitution it is the executive function of the Government, as I see it, to make recommendations to the President in respect of eligible people to be appointed by the President as judges.
Absolutely handcuffed to the idea of the function of the Government being to make such recommendations is the correlative entitlement of the Government to know the options that are open to it in respect of any decision it makes. In my view it is unconstitutional for the Legislature to attempt to break the constitutional separation of powers by creating a judicial appointments commission in an Act of the Oireachtas in circumstances where it is not merely a matter of getting advice from the commission that these three people, for example, are the best people in the judgment of the commission, when the Government has the clear option of disregarding that advice and of choosing an alternative option, which the Government might in its own collective wisdom consider preferable. I do not believe it is open to these Houses to create an obstacle course, by means of the set of provisions the Minister has put in place here, so that the Government is deliberately kept ignorant of the fact that eligible people are ready and willing to serve.
If the previous section stands the Minister has created situation where no judge can intimate his or her availability and willingness to accept office other than by an application to the commission. As I understand it, the commission will have a standard approach so there is no differentiation between persons who are not judges and persons who are judges. No preference will be given and no shortcut or fast-track will be given to judges in the whole process. There will certainly be no fast-track given in the selection process to serving judges over people who are not judges at all. I believe the selection process is to be the same for every applicant, the commission's interviewing will be the same for every applicant, and the criteria applied by the commission will be the same for every applicant, as the Minister said to Senator Bacik some time ago.
We have here an attempt to shoehorn the perfectly reasonable requirement and entitlement of the Executive when making an appointment to know what its options are and who is willing to serve so it can decide which, of all the options open to it, is the best appointment to make. The attempt is being made to shoehorn this into an entirely different and ill-fitting shoe where Government is to somehow be guided away from looking at the broad question, which is its prerogative, and guided to where it is being asked to look at a particular shortlist set out in order of preference. I am against that for many reasons, many of which have already been made clear.There is no earthly reason why the Government of the day should not be made aware of the fact that a woman or a man who is a serving superior court judge is available and is willing to be appointed by the President on the recommendation of the Government. The Minister has made it clear that it is the purpose of this Bill because he has agreed that one consequence of making the Attorney General a member of the commission, which is to bind the Attorney General - on pain of committing a criminal offence - to not disclose to the Government those persons who applied and were not short-listed for consideration by the Government, is an intended consequence of the passage of this legislation.
It is not simply that we have a different set of goals in mind or that we have a parallel procedure that will involve a shortlist ranked in the order of the commission's preference. It is combined with statutory provisions that are intended to prevent any signal by any eligible person to the Government of his or her availability, other than through the shortlist set out in the order of the commission's preference.
In common sense, why should a Government not know about the options that are open to it, that there are eight people and not three people and who those eight people are? Why should it not be told that? The implication, which is that of the Minister, Deputy Ross, is coming through clearly. It is that it will act in a cronyish way, and will somehow select the five who are not on the shortlist or will look to them for improper or unsatisfactory reasons instead of selecting the three people on the shortlist. That is the implication. If that is not the implication, why not let the Government know, which it does at the moment under the Judicial Appointments Advisory Board's system, of all of the options that are open to it? What is wrong with members of the Government that they cannot be given this information when they look at the shortlist? Would it damage the process that they should know from whom the shortlist was compiled and who was excluded from it?
When one looks at the confidentiality arrangement in this legislation in particular, as well as the criminal offence that has been created, the Minister is trying to create a situation in which it would be against the criminal law for someone to tell the Government that the three people whose names it has received are by no means the best, that there are four other people who are not considered. It would be against the criminal law for someone to tell the Taoiseach about these four other people who the Taoiseach, in his or her capacity as Taoiseach, might have thought were more suited to fill the vacancy under consideration.
There is nothing wrong with such a principle. What is very wrong with the legislative procedure that is before Members for adoption is that it is tainted with the notion that somehow the Government would be making a suboptimal decision, were it to depart from the shortlist that was in front of it. What is suboptimal about not agreeing with the judicial appointments commission? What is suboptimal about saying that a particular judge - man or woman - has served with distinction on the Bench for five, ten or 15 years and is available and willing to be appointed to some office in the superior courts? No purpose is served by keeping the Government in the dark about such an arrangement. That is where the constitutional infirmity with what is being proposed emerges.
The Judicial Appointments Advisory Board arose out of the controversy that attended the collapse of the Reynolds Government in 1994. It went as far as could be done in establishing a system that looked at applications to be made judges, examining them, making recommendations, telling the Government who all the applicants were and then coming up with a shorter list. The only thing there has been controversy about is the length of the shortlist that goes to Government. It is thought that the Judicial Appointments Advisory Board was sending too many names to Government in some sense - I do not know what "too many" means - and somehow, the Government was put in a position of making suboptimal appointments because it had an embarrassment of choices put before it.
We have now achieved clarity from the Minister and I ask that one matter be made absolutely clear. Is the Government in no way bound by the shortlist? If that is the case, why should it not be aware of the non-short-listed applicants? I have never got a satisfactory explanation for that, except distrust of the Government to the effect that if one tells it that it has other options, it will not be so quick to accept the shortlist recommended to it by the proposed commission. It may be tempted to exercise its own judgement in a manner which does not agree with the judicial appointments commission if it knows it has other options.
The basic point is that it is the constitutional function of the Government to recommend the appointment of eligible persons by the President as members of the superior courts. It is the constitutional function of the Government to make its choice with a clear view of the options available to it. It is unconstitutional to keep from the Government, by the provisions of the sections we are now dealing with, knowledge of those who were not merely eligible but ready and willing to be appointed, were the Government to consider them to be the appropriate persons to be appointed. That last thing is clearly unconstitutional and impermissible. One cannot deliberately keep the Government in the dark about the real choices as to who was available and who was willing to act, all of them being eligible.
In particular, asking the serving members of the Judiciary to surrender what is their constitutional right to impart to the Government an indication of their willingness to be appointed to a particular vacancy and to say instead that all one can do is make an application to a body which may or may not inform the Government of one's interest in the matter by means of including or excluding one from a shortlist, is an unconstitutional intrusion on the rights of the Judiciary collectively and judges individually, the Government collectively and members of the Government individually, to discharge the functions the Constitution places in them and in them alone. I cannot put the matter much more strongly than this. I believe this issue goes to the heart of the Bill. Let us suppose the purpose of the Bill is as I assume it to be, which is to ensure that we have somehow a better Judiciary, a better method of selecting judges or ensuring that better people would, on average, be selected by this means rather than the present means. If that is the purpose of this legislation, then it is a fine aim. However, what we cannot do and what the Legislature is prohibited from doing is erecting screens around the Government to keep it in a state of ignorance about the real choices it has. We cannot make it a criminal offence to inform the Government of people who applied but were unsuccessful in being shortlisted. To me, that is unconstitutional and we cannot do that. We live in a democracy. People in government are entitled to know that Ms Justice so-and-so or Mr. Justice so-and-so was ready and willing to serve in this position. This commission may have come up with three other people, but it is unconstitutional to say to the Government that if people inform the Government of the fact that they indicated their willingness, then those persons commit a criminal offence. It is simply unconstitutional to do it. The Minister has no right to do it. The Minister has no right to keep it from the next Government. The Minister may choose it for this Government if this Bill ever comes into effect. Indeed, from what the Minister has said, it will be delayed for a year or two anyway, which does not really affect the likely lifetime of this Government. To say to those in the next Government that they will be committing a criminal offence if they seek to find out what the other choices were among those who were willing to serve is clearly unconstitutional. What is worse is to say that anyone who gives the Government that information will be committing a criminal offence. Such people would include the Attorney General, who knows the true situation. That is completely unconstitutional and there is no excuse for it. It does not serve any purpose. The only purpose it serves is to create a false impression that somehow the Government input to the appointment of judges will be reduced to the constitutional minimum and the Government's discretion will be reduced to the constitutional minimum.
That is not unfair language because the programme for Government states – this is the agreement made with the Minister for Transport, Tourism and Sport, Deputy Ross - that the shortlist would be reduced to the smallest number that the authors of the programme for Government considered would be consistent with the Constitution. That is the aim. It is to reduce discretion and circumscribe discretion to the maximum extent. That is written into the programme for Government. Doubtless, if the Bill ever goes before the Supreme Court, the Judiciary will look at that too. That was the purpose of this legislation. It was to reduce the discretion of the Executive in these matters to an absolute minimum and to do so by legislation as much as possible. It was to cut back the shortlist to fetter the discretion of the Government and to keep the members of the Government in the dark. That is what this legislation is attempting to do. What flows from all of that is that the Bill, if enacted in anything like its present shape, is designed to create a serious barrier to the exercise by the Executive of its constitutional prerogatives.
I want to say one other thing. Somehow someone thinks that we can do all of this and escape the constitutional consequences by adding in section 40(3) and section 41(4). These provide that nothing in the recommending role of the commission shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President under Article 35 of the Constitution of a person to be a judge. On one view, that is a trite piece of legislative redundancy. It is not possible to do that. We cannot limit the advice that the President can give in respect of an eligible person to be a judge.