Alice-Mary Higgins (Independent) | Oireachtas source

Amendment No. 6 is a technical amendment to make sure that amendment No. 9 will make sense. Amendment No. 9 adds a new subsection (4) to section 9, making sure 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, Court of Appeal or High Court." This would in practice mean that the Attorney General would not have a role in the commission's recommendation process for domestic judges. This is a compromise with previous amendments which I proposed on Committee Stage, which removed the Attorney General entirely. In line with recommendation 8 of the Committee on Justice's pre-legislative scrutiny report on this Bill, it revises the role of the Attorney General on the commission. The revision that we are proposing would enhance the independent decision-making of the commission when it comes to filling vacancies in our domestic courts.

In their submission to the committee, Dr. Laura Cahillane, Dr. Tom Hickey and Dr. David Kenny all noted that having the Attorney General also sit on the commission gives this individual law officer an outsized influence on the process. The commission is being set up as an external assistant to the Government's selection of the candidates, yet the commission which makes these recommendations has an individual who is the same individual sitting with the Cabinet and giving advice to the Cabinet about how it accepts or takes the recommendations from the commission. The experts noted that it has been common in the past for Attorneys General themselves to take up positions as judges in the courts upon leaving office, raising more questions about them being so intimately involved in the selection process of judges.

In its submission to the committee's pre-legislative process, the Law Society of Ireland stated:

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 is clear that as chief legal adviser to the Government, the Attorney General will play a role and have an input on the Cabinet discussion about the appointment of judges. If we want a truly independent judicial appointments commission, we cannot have a situation where someone who is appointed directly by Government is allowed to sit on the commission, which will then make its recommendations to the Cabinet and then also have an important role when it comes to the final decision of Government regarding judicial appointments.

Amendment No. 10 would require that the Minister, within two years of passing this Act, would lay a report before both Houses of the Oireachtas reviewing the provisions of this section with regard to the membership of the Attorney General on the commission.

Senator Ruane and I, and others, have extensively outlined our concerns on Committee Stage and the concerns of civil society regarding the role of the Attorney General on the commission. Amendment No. 10 is a very moderate amendment. It would at least demonstrate that the Government is at least listening to such concerns and monitoring any potential consequences, and that there is an appropriate review process within this Act to examine how the Attorney General having this dual role pans out in practice.Effectively, one is talking about the same individual, that is, an individual directly nominated by the Government, who is in both rooms. He or she is in the supposedly independent room, which is examining potential candidacies for domestic judges, and in the room that is making what is, ultimately, the politically informed decision of the Cabinet regarding the appointment, in addition to all the other factors that contribute. This is not questioning that the Attorney General may have a role in the process but the role in the process at Cabinet should effectively preclude a role in that previous independent piece.

For example, in a situation where the commission may put forward a few names, we would be in a situation whereby, effectively, it is not clear how the Attorney General might be constrained in his or her engagement or advice to Cabinet on what aspects of the discussion of the commission are communicated at that point. It is a matter where there is not even clarity regarding what the protective measures are in respect of the independent functioning of the commission around how the Attorney General would engage with that, and how he or she would then go on, with Cabinet, to interpret the outcomes of the process in which he or she played a key role. You cannot be in both places or in both camps. We cannot have a process where one individual is central to both parts. It is something that will ultimately undermine the credibility or effectiveness of the new commission proposals that have been laid out.

There are many cases of Attorneys General who have gone on to become and be appointed as judges. I am sure, in many cases, these are meritorious appointments but it creates an unnecessary confusion if we have a situation whereby Attorneys General themselves have been in a position, in an outsize way, to influence the appointment of judges and are then in a position to potentially benefit from that same process themselves. We always look not just to best practice but clarity around the appearance of best practice. In that context, I hope the Minister of State might consider amendment No. 9; amendments Nos. 6 and 9 are a set. If he is not able to consider amendment No. 9 around the removal of the Attorney General, I ask that he at least agrees to amendment No. 10, which commits to a review of whether there have been unforeseen consequences, or other effects of the role of the Attorney General, and whether concerns have been raised. That amendment relates to a two-year review, which examines that specific issue.