Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 4:

In page 10, line 30, to delete “2” and substitute “3”.

I will speak to the grouping because amendment No. 4 is consequential on the other amendments in this grouping. The core of this grouping is amendment No. 6, which would delete the provision in the Bill as stands that the Attorney General would sit on the judicial appointments commission. During the pre-legislative scrutiny of this legislation by the Committee on Justice, the committee heard from a number of key stakeholders including the Law Society of Ireland, the Irish Council for Civil Liberties and academic experts including Dr. Laura Cahillane, Dr. Tom Hickey and Dr. David Kenny, that the Attorney General should not be a member of the commission. For example, the Law Society of Ireland's submission to the committee noted:

If the new Commission is to be genuinely independent in its functions, there is no reason for the Attorney General, who also sits at the Cabinet table, to participate. ... To the contrary, it becomes more difficult to defend the independence of the process if a significant player has a dual role both prior to, and post, the Commission’s recommendation.

On the issue of the dual role, it was also clear that as the chief legal adviser to the Government, the Attorney General would be taking part in Cabinet deliberations on the nomination of judges. If this is something new and we are creating this independent judicial appointments commission, we should not have a scenario whereby you have somebody involved who is appointed solely as part of the Government and who answers solely to the Government. We must bear in mind that none of us can see the Attorney General’s advice on anything as he or she is solely in a relationship with the Government in that regard. It is not an independent public role but one solely serving the Government. We cannot have a scenario where such a person would be allowed to sit on the commission and potentially have an important role, on the one side sitting on the commission and on the other side in the Government’s final decision on judicial appointments. It muddies the process and compromises its independence.

My amendment No. 4 is a consequential amendment which recognises that were we to remove the Attorney General from the commission, the number of spaces would need to increase. I had two amendments, one of which was to increase the number of laypersons accordingly and another one, which was to increase the number of other appointments. I understand that my amendment on laypersons was ruled out of order, which I was surprised by because I was told about the charges on laypersons and increasing the number of laypersons. I am surprised and that points to a wider problem whereby incidental costs are stopping us from making good legislative proposals. I have given two different ways whereby the removal of the Attorney General could be replaced. Some of the proposals put forward by Senator McDowell and others could be other potential substitutions following the removal of the Attorney General.

The other set of amendments in this grouping includes amendments Nos. 11 to 13, inclusive, and they go into a little bit more detail. Amendment No. 11 is consequential on amendment No. 6. Having removed the Attorney General from the commission, there would no longer be a need for the Attorney General to be removed from the voting because the Attorney General would not be a member of the commission. What are more substantial and relevant are amendments Nos. 12 and 13. Even if the Minister does not accept my proposal to remove the Attorney General, which would be wise and appropriate, amendments Nos. 12 and 13 seek to at least provide a greater degree of clarity and care around what role the Attorney General could play in the functioning of the judicial commission. Amendment No. 12 would add a new subsection to section 9, providing that "The Attorney General shall not, as a member of the Commission, play a role in the selection or recommendation of persons for appointment to judicial office in the Supreme Court”. So there is a provision stating that the Attorney General may not vote on a votable measure but there is no provision whereby, for example, the Attorney General could not end up playing the key role in the recommendation, nomination or selection of persons. The Attorney General could play a significant role right up to the point of the vote. That is a concern, especially given that dual role the Attorney General will then play in the Government’s final decisions.

My amendment would ensure the Attorney General would not have a role in the selection or recommendation process for domestic judicial offices. It is a compromise on my previous amendments, which removed the Attorney General entirely but it reflects recommendation 8 of the Committee on Justice’s pre-legislative scrutiny report on this Bill, which was to carefully revise the role of the Attorney General on the commission. The revision we are proposing would enhance the independent decision-making and independent operation of the commission when it comes to filling vacancies in our domestic courts. Again I note that in its submission to the committee, the Law Society of Ireland expressed a need for a greater independence. In addition, Dr. Cahillane, Dr. Tom Hickey and Dr. David Kenny noted that having the Attorney General also sit on the judicial appointments commission gives this law officer an outsized influence on the process. Those experts noted that it has been common in the past for Attorneys General to take up positions as judges in the superior court upon leaving office, again making it a little bit of a concern if they are intimately involved in the selection process for judges.

Amendment No. 13 is an alternative to amendment No. 12. Amendment No. 12 effectively removes the Attorney General from the selection and nomination process completely. Amendment No. 13 is a compromise to the compromise. It would simply remove the Attorney General from the key “role in the selection or recommendation of persons for appointment to judicial office in the Supreme Court, Court of Appeal or High Court". These are particularly sensitive roles.These are the courts that need to effectively hold the Government to account at times. These are crucial roles. We have had situations in the past where there has been something of a migration from Attorneys General into those courts. At an absolute minimum, we should be looking to remove any question of the Attorney General being involved in the search or selection process leading to the appointment of members of those three senior judicial bodies. I will be happy to hear the Minister's response. I have further examples. This issue came through from multiple stakeholders who spoke to the Joint Committee on Justice. I urge that this anomaly be addressed because it will start us off on the wrong footing in terms of the independence of this new body.