Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I will try my best to respond to many of the points that have been made. First, I will touch on an area Senator Ward focused on, namely the purpose and intention behind this Bill. One of the key elements of reform is the fact that any individual, be he or she a sitting barrister, solicitor, legal academic or a sitting judge, would go through the same process. I appreciate it is a departure from what is there but it is to ensure that we have a clear and transparent process that upholds what I believe has been a good process to date and has resulted in an excellent Judiciary, which is remarked on and acknowledged as such. It is so that we continue to uphold those standards but that we have as clear and transparent a process as possible. To accept this amendment would completely remove what is a key element of reform in this legislation.

Under the Constitution, judges in courts in Ireland shall be appointed by the President. Article 13 provides that this function of the President shall be exercisable only on the advice of the Government. It is important, first and foremost, that we adhere to and interpret the Constitution and that we apply it while also having regard to international standards. That is what we have tried to do here in striking the right balance and making sure that the Government recommends that the President appoints but that we also adhere to and have regard to international standards. The advice that I have, and I want to reassure colleagues that it has not been a single engagement but a constant back and forth with the Attorney General on this, is that we have struck the right balance and that the appropriate number is three and that it allows for discretion and also acknowledges and takes on board international standards. Some would prefer that the Government had no discretion and that there was one name and that it was numbered but I firmly believe that because of the Constitution, the Government has to play a role.

Senator McDowell spoke of prohibiting or disqualifying people from going forward. Nobody is disqualified if they have the qualification but to suggest that somebody cannot, because he or she is a sitting judge, then I do not agree. If someone is qualified and suitable then he or she can put himself or herself forward, apply and go through this process. The Senator is suggesting that the Chief Justice and the Presidents of the Courts and the people - because it is not four people, it is eight plus the Attorney General - would consistently disqualify a person, and presuming that would happen and that the Chief Justice and the Presidents of the Court would stand over something like that. Again, I do not accept that. I would have confidence not just in the legal or judicial but also the lay side of the commission itself.

On the Senator's ask around the voting, to date, it has always been that decision has been taken by consensus. I do not see that changing. There can be no situation where the commission proposes nobody to the Minister unless nobody puts themselves forward, which I would never see happening. Regarding Senator Ward's amendment, which we did not get to, there should not be a casting vote by anybody. We will not accept that for the very reason that they should be decided on consensus. If a decision cannot be reached, then the members of the commission will have to work together to find that consensus. It has worked to date. There was never a situation that I am aware of, or has been since I have been in this position, where a vote has taken place. It has always worked by consensus and I believe that will continue.

On section 42 and the use of the word "may", the recommendation must be made if the Minister requests it. The Senator outlined a scenario where it has been the case to date that where a position has lain vacant and there has not been a request from the President to fill that position. The Minister may request but if there is a request not to, and to be honest the Supreme Court is the only time that has happened, for many other positions that would not arise. It simply means that if there is a situation where a vacancy is not needed to be filled then it is not but a vacancy shall be filled or a recommendation must be made if the Minister requests that recommendation.

Returning to the constitutional provision and the language that judges shall be appointed by the president, the function of the president shall be exercisable only on the advice of the Government is still very much the case here. It is still very much the case that the Government makes recommendations but that we as the Houses of the Oireachtas set out the criteria by which those names come forward to the Government and there will still be discretion there. I appreciate that we might not agree on this point but I have sought advice from and engaged with the Attorney General throughout this entire process. I am satisfied that what we have set out here fits in with, supports and is in line with our Constitution but also has regard to international standards where standards are not necessarily always upheld and where we know significant challenges and concerns arise with governments as well. It is important that we protect ourselves in that regard while also making sure that our Constitution comes first and foremost. However, I do not think that anyone is prohibited or disqualified. If someone is suitable and fits the criteria, even if they have sat on the Bench for one sitting because they have been asked by the Chief Justice, that should not mean that he or she never has to go through a process of promotion simply because he or she is a sitting judge. I just do not agree with that. If someone is seeking a promotion there should be no reason he or she would not go through the same process. If he or she is suitable and qualified then there is no reason he or she could not be recommended. Technically, a person could come through a process or apply and never be put forward but that can apply in any circumstance and to assume that the Chief Justice and others would make a conscious decision not to allow someone to go forward again is not a viable or realistic situation that might arise. For that reason, I cannot accept the amendment. To return to my first point, this is a key element of reform that we have a single, clear, transparent process that everyone can be confident in and that upholds what I believe what has been an excellent Judiciary to date and continues the process in as clear a way as possible. That would be completely removed were we to accept this amendment.