Michael McDowell (Independent) | Oireachtas source

Amendments Nos. 4 and 16 are related and I propose to speak to both at this point. The present proposal in the Bill is that there should be a nine-member commission, that four of those members can be members of the Judiciary and that four should be laypersons selected in the manner provided for in the Bill. The present wording of section 9 reads:

The Commission shall consist of 9 members, subject to section 45, being— (a) the Chief Justice,

(b) subject tosubsection (2), the President of the Court of Appeal,

(c) 2 members of the Judicial Council nominated and appointed in accordance with section 12,

(d) subject to subsection (3), the Attorney General, and

(e) 4 lay members appointed under section 13.

Subsection (2) states:

(2) Where the Commission is performing the function of selecting and recommending persons for appointment to judicial office in the High Court, Circuit Court or

District Court, the President of the Court concerned, and not the President of the Court of Appeal, shall be the member for the purpose of performance of that

function.

(3) The Attorney General shall not, as a member of the Commission, have a right to vote on any matter coming before the Commission for a vote.

(4) The Chief Justice shall be the chairperson of the Commission.

Senator Ward tabled an amendment to deal with the situation of what happens if this commission divides four votes to four on any issue. First, it is clear from subsection (3) that the Bill in its current form proposes to have votes and, presumably, to have a vote on the composition of a shortlist. The Attorney General will be given no say if the commission divides four to four in any way on whether somebody should or should not be on the shortlist. The Attorney General is apparently entitled to discuss the matter with the other members but is not entitled to even resolve a four-four split between the members of the commission where such a situation arises. Senator Ward tabled an amendment to the effect that the chairperson should have a casting vote. Alternatively, if one gets rid of subsection (3) in respect of the Attorney General, there will always be nine voting members on the commission and one could not have a dead heat or impasse between the two sides on any issue. Why are we creating a deliberately chosen deadlock and providing for a nine-member commission of whom only eight can vote and where those eight differ evenly as to any particular decision, the commission cannot decide it? No explanation has been given as to why any body whose function it is to make a recommendation should not be able, among its own members, when divided evenly on an issue, to have some mechanism for deciding which view should prevail.

I will give the House an example of what we are dealing with here. Let us say there is unanimity on two names to be included in the shortlist of three but two of the judges and two of the lay persons go for candidate A to be put on to the shortlist and two of the judges and two of the lay members say they want candidate B. The Attorney General may or may not say he thinks A is better than B but he cannot impose his will on the either side. The commission then sits down and stares at the blotter and asks what does it do about this. This must be the only case in recent legislative history where the Oireachtas is being asked by the Government to enact legislation designed to create situations where there is deadlock between the members of a body corporate in respect of one of its central functions. I can think of absolutely no other case in any Bill, that I can call to mind at any rate, where the Government has come before the Houses of the Oireachtas and said we will create an institution which can vote on an issue but if its members are evenly divided, it cannot decide anything.That is an extraordinary situation. It is ludicrous, to be honest. It does not bear any consideration in terms of arriving at decisions or whatever. I cannot think of any body corporate ever established by a statute with an even number of people on it, where, if there is an even division of opinion on any matter and the matter is put to a vote, the body can do nothing. That is what we are being asked to approve here.

I think this is slightly more sinister than that and that it bears this construction, which to me is a rational construction, namely, that the four judges will always be able to prevent anybody from being on a shortlist. As I said in my contribution on the previous amendment, because they would be elected by the Judicial Council, in which the great majority of members are Circuit Court and District Court judges, two of the judges will probably be a Circuit Court judge and a District Court judge, a man and a woman, one of whom was a barrister when appointed and the other of whom was a solicitor. Those two, plus the president of the court to which the appointment is being made and the Chief Justice or, where the Chief Justice is not there and particularly if he or she has ceased to be a member of the commission, has died, retired or whatever the case may be, the President of the Court of Appeal, are, between them, being given by this legislation the right to say, in respect of any person, that he or she may not become a judge. They are entitled to say in respect of any judge that he or she will not go any further in the Judiciary and will not be made president of any court because they will not put that person on a list. The four lay people can get blue in the face and the Attorney General may say this is very unsatisfactory but, in fact, the four judges will have a blocking vote if they act together in any particular case or decision. The consequence of that is that four judges are, in effect, being given the right to prevent anybody becoming a judge and the right to dictate to the Government who can and cannot be appointed to any position.

What does the amendment in our name do? First, in section 9(1)(d), it proposes to take out the words "subject to subsection (2)". Subsection (3) states: "The Attorney General shall not, as a member of the Commission, have a right to vote on any matter coming before the Commission for a vote". We are saying we should take out the exclusion on the right of the Attorney General to vote. That is one way of getting around the gridlock of a four votes to four decision. Senator Ward's amendment simply gives the chairperson of the commission, who is normally the Chief Justice, the right to a casting vote where there is a division of opinion of four votes to four. That is the first thing that our amendment does.I have not heard at any point or seen in print any attempted justification for this deadlock structure which has been advanced here.

A slightly sinister aspect is that it actually confers on four judges a veto. There cannot be a shortlist unless they agree all the names on it. That means that no matter what the Government thinks in respect of any appointment, in all probability a judge of the District Court, a judge of the Circuit Court, one president of the relevant court and another will between them have the right to say in respect of any other judge, "You're not being promoted. You're not being made a member of the Judiciary in the first place. You're not going to be President the High Court. You're not going be President of the Court of Appeal. You're not going to be capable of being made Chief Justice." Is it fanciful to say this? Is it fanciful to make the point there could be four and four divisions? The section in the Bill contemplates votes being dealt with in this matter. In particular, as the Attorney General is prohibited from exercising a vote, it is very clear that there can be a vote. This means that the four laypersons chosen in the way that the Bill later provides are given a blocking vote against the will of the Judiciary.

The second thing that our amendment does is to delete four laypersons appointed under section 13 and to substitute for it two laypersons appointed under section 13 and two persons one of whom shall be a practising solicitor and one of whom shall be a practising barrister nominated on appointment in accordance with the provisions of this Part. What is the point of that? The point of that is that at present the Bill stipulates one category of persons who can have no input into the competition shortlist: practising lawyers. It can be anybody who gets past the Public Appointments Commission, but it cannot be somebody who is actually seeing members of the Judiciary functioning day in day out and is seeing a Circuit Court judge, for instance, carrying out his functions and has come to a conclusion about his suitability for higher office or his capacity to deal with his work. People like that are actually in court and see these people working. They are the one category of people the Government has decided should have no input whatsoever to the selection of names for a shortlist.

Arguably they are most likely to be in the best position to express an opinion. A practising solicitor or practising barrister sees people administering justice, sees how they do their job, sees how their temperament is in reality and not in a little curriculum vitae sent into to the commission, and knows that the person is fine to do simple stuff but has huge difficulty with the complex stuff. They see that.They know that the judge has a short fuse or that the judge is entirely amicable and decent to everyone, even perhaps to a fault. They know that. The Chief Justice does not know that. The Chief Justice has no idea, and he is chairman of this commission, as to what any individual district judge is like. None whatsoever. He probably does not even know the names of most District Court judges. He might know the names of most Circuit Court judges but now the Judiciary is expanding at such a rate that I can tell you it is a bit of a mystery. Your eyes blink sometimes, when you see the lists, and say you did not know that she or he is now in the High Court.

This is the important point. There is one group of people who day in, day out have an appreciation of what it is like to be a judge, what it is like to be dealt with by a judge, how judges interact with the public, how they interact with the law, their degree of comprehension, their understanding of legal principles, their willingness to sit late and work hard and all of those things. The one group of people who have a clear view on that are the practitioners. For some reason, between the Bill whose ghost Minister was the former Minister, Mr. Ross, and this Bill, that idea is dropped. Then there is the idea that people who are best positioned to have some input into the selection of a judge and who have the best insight into the kind of person the judge actually is when administering justice are told not merely they are not members but they may never be members of the commission. They are told there is something wrong, in principle, with allowing them to indicate their day-to-day, on-the-ground understanding of the suitability of a judge.

The Minister of State is, like myself, a member of the Bar and he knows what I am talking about. He knows what it is like to sit before a Circuit Court judge and he knows that he can form an opinion fairly quickly as to whether the judge is good, bad or indifferent, or is capable of being a High Court judge, capable of being a member of the Court of Appeal, of being promoted or whatever. I do not suggest that the Minister of State's view or my view will be infallible on these issues, but at least he would be able to throw in his tuppence worth and say that between these three or five remaining people looking for the last place on this shortlist, he could certainly tell you that candidate D should not be on that list. The judges from the superior courts could ask why that was and the Minister of State, if he was there, could say it is because he has seen the candidate, he knows how impatient the person is, how he or she rushes to judgment, how the candidate is prejudiced or whatever or that he knows the person's tendencies and the High Court would not suit him or her. He could certainly do that but, for some reason, this Government has decided that those people cannot have any input. That is all the more mysterious because in the Judicial Appointments Advisory Board there has been a representative of the Bar and a representative of the solicitors' profession. I have served on that board myself, as Attorney General, and I know from people who have served on it, as representatives of the legal profession, that they take their position very seriously, they do not attempt to run their own horses in races for judicial appointment but they do believe it is their function to inform the other people who are going to make the recommendation, under the existing advisory board system, about the reputation and the perception of the candidate among those who see that person operating as a judge.As far as I am concerned it is an amazing slap in the face for legal practitioners to tell them we do not want them to have any hand, act or part in making that information available to a group of people who are selected on the basis that they are not legal practitioners and who are unlikely to have appeared before any of the people or been in court when any of those people have been sitting as judges. It is a slap in the face for the legal profession and it is unwarranted.

Members may want to know why, in subsection (5) we have provided that "No person nominated and appointed under subsection (4)shall be entitled to receive any remuneration or expenses under section 14". We had to do that to avoid being accused of putting down an amendment which would have the effect of imposing a charge on the Exchequer. I am equally clear that the Bar Council nominee or the Law Society nominee would not be doing it for the money or expenses; those nominees would be quite happy to do it out of the goodness of their hearts and out of a sense of professional duty to the operation of the administration of justice.

What are we dealing with? We are dealing with a body which has in-built paralysis and for which one member, though he or she can contribute to the discussion, can have no say, even in the case of a tie. We are dealing with the only body the Irish Legislature has in the past 100 years, as far as I know, created as a body corporate with a voting function and no means of resolving a difference of opinion where the members are evenly divided. We are doing all of that in the context of according to four judges a veto over any other person becoming a judge or being promoted to any position within the Judiciary. That is what section 9 is intended to bring about. The amendment that was made to deprive the Attorney General of a vote was a deliberate act because it was thought that he or she might be "political", even though he or she has to be consulted by the Minister for Justice when the matter comes before Cabinet, even on the shortlist, under the Cabinet handbook. The Attorney General can watch the proceedings as a kind of legal voyeur but can have no hand, act or part in the consummation of the decision-making process.

If anybody thought about this for long, he or she would say we should not deliberately create a situation where a body composed of even numbers has no casting vote and where one of its members, who might have a vote, may not vote, thereby creating this division. Such a person would say we should not create a situation where four people can effectively block a name, even though the other four may not really be clued in as to why this is happening. I ask the Minister of State to accept from me that this is not just a matter of selecting a shortlist of three for recommendation; this is a matter of saying, in many cases, that the people not on that list may not serve in that position and if they continue, frequently and repeatedly, not to be included on the list, they can be excluded by these four members of the Judiciary from any further development of their career. It is cronyism.

The funny thing is that the former Minister, Shane Ross, accused the legal profession of cronyism.He accused the whole system of cronyism. He wrote a florid book that detailed how judges' children got married to one another and invited people to one another's weddings and all the rest of it. I cannot understand how we can say that four judges, who are definitely more likely to know each other than the four lay people, having a veto is a transparent or appropriate method of resolving a genuine difference of opinion between the members of the commission. How is it appropriate to deprive them of a casting vote and to deprive even the Attorney General of a say where there is a split decision among the others?

I referred earlier to the Judicial Appointments Advisory Board regime, whereby the Law Society and the Bar Council were represented and they diligently, faithfully and scrupulously advised the other members of the reputation, competence and day-to-day suitability, as far as they knew it, of a sitting member of the Judiciary regarding promotion. I cannot see any reason they should be told we do not want to hear their view. The Bill goes even further than that because if they heard that the dreadful judge, Michael McDowell, was seeking promotion, they will not even be able to intervene to prevent it. The Bill tells them they should not write letters trying to influence the result. If they knew there were two or three people in contention, and two of them were substandard and one was the obvious person, they could not write letters to intervene to state people were in danger of barking up the wrong tree. All of their knowledge will be cast into the wastepaper basket for no particular reason.

It is not as if it would be risky to allow them to have input. The Minister knows, and if not the Attorney General will tell him, that Judicial Appointments Advisory Board is greatly enhanced by the presence on it of a representative of the Bar Council and Law Society who can give this type of information. These are the reasons that lie behind the amendment. It would make a far better Bill if adopted. It would deal with the gridlock issue that has been artificially created, for the first time in Irish legislative history, denying anybody a casting vote and allowing for no means of resolving a division of equal opinion between the parties on a body corporate. In the circumstances, I have to recommend it to the House.