James Browne (Wexford, Fianna Fail) | Oireachtas source

Amendments Nos. 4, 6, 11, 12 and 13 are being taken together. It was agreed that amendment No. 4 would be included in the group. They all seek to amend section 9.Section 9 provides for the membership of the commission. It provides that the commission will be chaired by the Chief Justice. It provides for an equal number of lay members and judicial members, that is, four of each. Judicial membership comprises the Chief Justice, the President of the Court of Appeal and the two nominees of the Judicial Council. The Attorney General is a non-voting member.

As has been stated, the purpose of amendment No. 4 is to increase the number of Judicial Council nominees to the judicial appointments commission by one from two to three. I cannot support amendment No. 4. There is no particular basis for increasing the number of Judicial Council nominees by one. While I would accept the intention is that this is read with the Senators’ separate amendment No. 6 to remove the Attorney General from the commission, amendment No. 4 would pose significant difficulty within section 12 for the process of nominating the judges in question. To have two nominees is balanced and this is critical in the context of the requirements for a nomination: one is to be male and one is to be female; one is to be from the higher courts and one from the District Court or Circuit Court; one is to be a formerly practising barrister and one is to be formerly practising solicitor. Membership is balanced, taking many things into consideration, including the nominee that is advanced by the council. I cannot support this amendment.

Amendment No. 6 would remove paragraph (d) of section 9. This would delete membership of the commission of the Attorney General. Amendment No. 11 would presumably in a consequential way delete subsection (3), which provides for the status of the Attorney General on the commission. Separately, amendments Nos. 12 and 13 would restrict the Attorney General's role on the commission to particular functions or appointments.

The concern the Senators appear to have is not shared by me. In respect of this group of amendments, I would say that the Attorney General will sit on the commission in an ex officio, non-voting capacity. I would point out that the Attorney General is a constitutional officeholder who has a particular role in upholding the independence of the Judiciary. He or she does not represent the Government on the new commission. The Attorney General is independent of the Government and this position has been recognised and confirmed in the decisions of the Irish courts. The Attorney General also has a role in upholding the Constitution, including a duty to ensure the independence of the Judiciary. In that context, there is no reasonable basis, in my view, for removing the Attorney General from this process or, indeed, any part of it as some of the later amendments propose.

The Bill in all its elements, including in particular those relating to the composition of the commission, was drafted on the basis of careful legal consideration of the relevant committee, the Minister’s recommendations and the jurisprudence of the Court of Justice of the European Union and of the Constitution. This is the case notably in its inclusion of a substantial number of judges and an equal number of laypersons, along with the Attorney General. This approach will serve to strongly underpin the independence of the Judiciary.

Amendment No. 11 would also have the effect of amending section 9 by removing the voting provision relating to the Attorney General. Several Senators subscribed to this for different reasons, as they have explained. The provisions of the Bill have been very carefully designed to provide a balance of membership on the commission between judicial members and lay members. The role of the Attorney General on the commission will be an extremely important one and, of course, the Attorney General has been a member of the advisory body, JAAB, since its inception. I would be concerned about putting, and it may be invidious to put, the Attorney General in a position whereby his or her vote might be a casting vote. That could be the effect of these amendments. This would, of course, happen in circumstances where there was an equivalence of votes between the judicial and lay members. I believe the commission will be a consensus-based body and I indicated as much on Second Stage. I would not wish to speculate on precisely how the commission will operate its procedures as that is a matter for the commission to regulate. However, I am not in a position to put the lay members of the commission in a minority position by providing for five votes against the judicial members and the Attorney General. This would change the nature of the Bill substantially and I am not prepared to provide for that. On that basis, I cannot support the amendment.

Let me address amendments Nos. 12 and 13. The approach of Senators Higgins and Ruane is perhaps innovative but, nonetheless, in paring back the involvement of the Attorney General, the amendments are still unacceptable. Amendment No. 12 prohibits the Attorney General’s involvement in the appointment of judges to any court in the State and amendment No. 13 prohibits his or her involvement in appointments to the superior courts. The former amendment would allow for his or her involvement in nominations to courts outside the State and the other functions of the commission under Part 5. The latter amendment would allow for that and for a remit in respect of appointments only to the Circuit Court and District Court. I cannot support these amendments. I agree with what would appear to be the understanding here, which is that the Attorney General is eminently suitable to have a function in regard to Part 5 matters and the development of selection statements. The thinking would seem to extend to his or her suitability to have a function in regard to nominations to the European Court of Justice and other courts outside the State. I agree. It extends in amendment No. 13 to his or her suitability for the function of the commission's recommendation of persons for appointment to the District and Circuit Courts. I agree. For all of the roles that the amendments appear to envisage the Attorney General being suitable to discharge, I would simply add that of selection and recommendation, as a non-voting member of the commission, of judges for appointments to the High Court, Court of Appeal and Supreme Court. This is where the understanding and knowledge of the Attorney General will apply just as suitably as to all other court positions and commission powers. This is what the Bill provides for. Therefore, I cannot support the amendment.