Seanad debates

Wednesday, 17 May 2023

Judicial Appointments Commission Bill 2022: Report Stage (Resumed) and Final Stage

 

10:30 am

Photo of Michael McDowellMichael McDowell (Independent) | Oireachtas source

I hope they have had a good visit to Leinster House.

It was emphasised previously in this debate that the Public Appointments Service will be some kind of independent body which will contribute to the independence of the commission. As we can see, all of this is simply a process for weeding out the people who are unsuitable. That is all the Bill actually does. In section 13(1) and (2), it is stated that certain people will be suitable for appointment. By implication, this means that those who are not recommended are unsuitable for appointment.

Section 13(3) states:

The Minister shall agree with the Public Appointments Service the selection criteria and procedures applicable to a selection process under this section having regard to-

(a) the objective that the lay members will, having regard to the functions of the Commission, amongst them possess knowledge of and experience, qualifications, training and expertise in the matters specified insubsection (4).

(b) the need, in so far as is possible to ensure that recommendations made under subsection (2)should comprise an equal number of women and men and reflect the diversity of the population of the State as a whole.

We stop there and say that in sifting out those people who are unsuitable that those involved should have in the back of their minds the need to have a gender and diversity balanced list for the Minister to look at. Section 13(3)(c) states: "the need to ensure that a person recommended to the Minister under subsection (2) is a fit and proper person to be a lay member." This is fairly obvious. Having said that they are suitable for appointment, one of the things that the Minister is entitled to do is to lay down selection criteria to ensure that they are fit and proper to be appointed.

Section 13(4) then states:

The matters referred to in subsection (3)are matters connected with-

(a) business, finance or public service,

(b) corporate governance and human resources (including making, or recommending persons for, senior appointments)

(c) the courts and the operation of the justice system both in the State and in places outside of the State and

(d) the importance of protection of human rights and equality.

That is strange, because now those are being included in addition to expertise, gender balance and diversity balance and the need to ensure that they are fit and proper people that they should also have regard to those criteria. This is the crucial subsection.

Section 13(5) states: "Subject to subsection (6), the Minister shall appoint lay members from among the persons recommended by the Public Appointments Service under subsection (2)." The consequence of that is that the Minister may get a panel of 20 people who are suitable for appointment. The Minister can then choose four from the 20 who proved to be suitable for appointment, having regard to the criteria laid down. This is an occasion where direct political discretion is vested in the Minister as to who the four lay people are, selected from a larger panel. What fascinates me in this context that this is accepted as being perfectly fine. The Minister for Justice decides on four names out of 20, and that is fine; that is independent and that is transparent. The Minister has discretion in this case. However, when the Government comes to look, for example, at the entire membership of the current Supreme Court, it is told that it cannot make a decision based on discretion.It will be illegal to appoint at least five members of the current Supreme Court to be Chief Justice if a vacancy arises in that office.

The point I am making is that when it suits the architects of this legislation to decry executive discretion as to who should be appointed as judges, they say there is something tainted about vesting a considerable amount of discretion in the Government. Under the Bill, however, open-ended discretion is given to a Minister to select from among the people ruled-----

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