Tuesday, 3 July 2018
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
I am not opposed to diversity. I am just worried about this particular amendment and whether it will achieve what it sets out to achieve. If we say that diversity is to be taken into account by the commission and if we define diversity in the manner suggested by Senator Ruane, we impose an obligation on the commission to consider the issues set out in her definition that it must ask questions of applicants or seek their input on their "backgrounds, experiences, interests and perspectives ... socio-economic status, gender, race, ethnicity, minority groups" and whether they are in the minority or majority group. Those charged with taking that definition of diversity into account must consider those issues. They must ask some person who comes to them what is their socioeconomic status. How are they to do this? Are they to ask, "What do you earn per annum? What property do you or your spouse own? What have you inherited? What is your wealth? Where did you go to school? Are you poor or are you rich"? These are the questions that this definition of diversity imposes as questions for examination by the commission. One could infer, and very unfairly, that some young woman or man who went to one school or another had some socioeconomic background arising from that part of his or her education. Is one supposed to ask, "Did you get into your school or go to university on a scholarship? Did you work during vacations to put yourself through college or school"? Is that the kind of question that we have to ask because that is what is involved if we say that socioeconomic status is a criterion for consideration as part of the selection process.
Is it to be the case that someone is to be cross-examined or required to provide information on his or her socioeconomic status and asked if he or she owes money to a bank or if he or she is wealthy because his or her parents or grandparents were wealthy landowners or because his or her mother or father made it big in this boom or that? Is this a matter which is seriously to be taken into account in determining whether somebody should not be a judge? This sounds great and it seems that Senator Ruane is asking us to do something which is very inclusive and which will produce an entirely different Judiciary. It also seems that different people will be appointed if the amendment is accepted because otherwise it will mean nothing. If it is not going to make any difference at all, that is fine. If it is going to make a difference, the clear implication is that those are issues which should, when everything else is even in terms of merit, tip us towards one appointment or another. The issues in question are, of course, whether the person is poor or rich or whether he or she has a certain socioeconomic status - whatever that means - which merits him or her getting the job or and whether these should be taken into account when giving the job to him or her rather than to someone else. I use the word "job" carefully because, as one Court of Appeal judgment recently made clear, being a judge is not just a job, it is a constitutional office. It is not just a career choice for people, it is a constitutional office to which obligations attach.
Is it a good idea to make this amendment? It would be far more politically correct for me to say that this is wonderful and that I have no problem with it. I know that I risk criticism to the effect that by opposing this particular definition of "diversity", I am against diversity in any shape or form. If a committee is bound to conduct its inquiries in accordance with law and if law sets these out as the criteria that it must take into account, it must make inquiry on these issues. It must ask what is your socioeconomic status. Is that fair? Is it in any way fair that we should say that one person has a higher or lower - whatever those phrases mean - socioeconomic status than another or that because the existing Judiciary has this particular socioeconomic status on average, we should look to somebody with a lesser or different socioeconomic status in making appointments to the Bench? That is a mistake in principle.
When it comes to gender, by any standards, a dramatic transformation is taking place under our noses in the gender composition of the Judiciary and, by extension, in the wider legal profession.The simple fact is that the majority of solicitors are women and I think we are approaching a situation where the majority of younger barristers are women. In terms of appointments to the Bench, anybody who looks back over the past ten or 15 years is going to see a dramatic transformation that reflects that gender compositional aspect of the legal professional and, presumably, legal academics, if we extend eligibility to them. We are dealing with a very transformational situation where we do not need a statement about gender or whatever.
In terms of race, ethnicity and minority groups, somebody asked earlier whether we have racial minority people on the Bench, and we have had. If one wants to include race, say Judaism, we have had people on the Bench. If one wants to exclude that and say it is pure religion and is not racial, that is fine. I do not mind. Looking across the legal profession, is the question of race as most people would define it, and that does not include something like Judaism, a criterion for selecting people? Maybe it is. Does one have to direct a merit-based body to, in addition to merit, look over its shoulder at the race issue? I do not think that is necessarily the case.
Ethnicity now means, I think probably by legal interpretation, membership of the Traveller community as opposed to race. There is a distinction here between race and ethnicity. Are we to have separate criteria? People from the Polish community, Lithuanian community, sub-Saharan Africa community or wherever should be also considered on that basis, in addition to merit.
Finally, one has the idea of minority group and majority group. I do not know what the term "minority group" means in this context. Does it mean, for instance, gender orientation or something of that kind, or the fact that one is philosophically an atheist, an agnostic or whatever, or that one is right-wing, left-wing or whatever? I do not know what minority group means in this context. There are very many minority groups in our society. There are strong pro-life people who might probably now be seen as a minority. There are strong reactionaries on some subjects rather than other subjects. Are they to be seen as a minority group?
This brings me back to the point that I raised earlier. What is the so-called majority group? Who is this so-called majority? Who is in it? Who is out of it? My view about the majority is that it is a mathematical concept. If one says Senator Norris and myself are or are not members of the majority group then what is one saying about him or me in this context? I do not know what one is saying about us. I just do not understand what the concept is. Senator Norris is a member of the Church of Ireland and I was brought up as a Catholic. He is gay and I am not. Am I in the majority and he in the minority on those accounts? I just do not understand what this amendment will bring about.
I would have been much happier to simply say that all appointments shall be based on merit. Whether one is black, white or brown, or whether one is gay, lesbian, transgender, bisexual or whatever, all of these things are irrelevant because one gets the job on merit. I favour that approach to the question of diversity. We are dealing here with a notion that somehow the group that appoints people to the Bench should not produce some class of people who are considered to be legal stereotypes. They are all going to be legal stereotypes because they are all going to have studied and practised law for a certain number of years, whether as an academic or as a practitioner. They are all going to be stereotypes in that after ten or 12 years' practice or whatever they are all going to be people who belong to what can be broadly stated to be the middle class. One is not going to find people who are on a dole queue, in a food queue or in a homeless situation who fill the criteria for appointment to the Judiciary. It is idle and self-indulgent to think that one will.
On that basis, I am not going to oppose Senator Ruane's amendment, because I do not want to be thrown into the group that would say I am against diversity, as defined by her. This attempt to define what diversity is casts on the judicial appointments commission a process of interrogating candidates that could be very unfair. Can one imagine any other job where one is asked questions about one's socio-economic status? When people answer the questionnaire honestly, they must ask whether they are talking themselves out of a job and saying something about themselves that will end up with them not getting this job. If one said, for instance, that for the executive officer competition in the Civil Service, one had to define oneself in terms of one's socio-economic status so that the person making the selection could consider that criterion, would one not consider that this was a most unfortunate and retrograde process and one that should not be contemplated? I do not think it should be applied to the Judiciary. I really believe - I say so most sincerely - the best person, wherever he or she comes from and whatever his or her background, in terms of merit, and I mean being judicially impartial, learned in the law and the like should be considered.
I want to really get to the following point, because it comes back through various proposed amendments to the Bill. If one thinks that some group is going to somehow interrogate people as to their philosophical outlook, as to whether their socio-economic background affects the way in which they will decide cases, then crucially, is this body going to address that question? Is Victor Boyhan likely to decide cases in a particular way because of his socio-economic background or am I likely to do so? If so, then one is in serious difficulty in terms of fairness and in my view, and I put this out for consideration by the House, one will seriously compromise the whole idea of a fair and impartial process to select judges. How can it possibly be? Let us suppose that Senator Boyhan and myself were contending candidates for a particular position and both of us were qualified legally. His socio-economic position, as he has explained to this House on several occasions, is quite different from mine in its origin. However, it may not be all that different from mine now, thanks to his industry and expertise.Does anybody think it would be fair of a selection committee to ask him where he came from, who raised him, what circumstances he was raised in, and so on, and then to ask me the same questions, and say that is something we have to put into the balance here? The point made by Senator Ruane in favour of this amendment is that somehow this will affect the way he or I, if given the job, will decide cases. That is the fundamental problem with much of the talk about judicial appointments, that somehow if there were different people from different backgrounds deciding cases, they would be decided differently.
The proposition is that the Judiciary is bourgeois, pro-establishment and comes from a particular socio-economic background, and on that basis has a particular mindset which affects the way it decides cases that come before it. Maybe that argument can be made, but if we set out down the road of selecting judges on the presupposition that issues, such as their socio-economic status, their gender, race or ethnicity or whether they are in a minority or majority group - whatever those phrases mean - will somehow have different outcomes, then we are treading a very dangerous path. Particularly if this function is given to lay people, to make recommendations by reference to these criteria, they are being asked to imagine how people will deal with particular issues which come before them. It is a mistaken view. I will not say any more about it but it is reasonable that I should say that.
The second amendment we are dealing it is amendment No. 4, which is to remove the words "and includes the Chairperson", which is from the definition of lay person. This is significant because, whatever view one has of the definition of diversity, this is effectively a clear statement that no person who is a member of the legal profession, or has been for 15 years, or a judge, should be capable of being the chairperson of the judicial appointments commission. Is this a merit-based appointment? Is it the case that people who are lawyers, and who know something about the law, or legal academics, or judges or retired judges, are somehow marked with the mark of Cain and set out as a special group among the community who on merit should not chair the judicial appointments commission? It is not that we want the best person but we want somebody who is marked out by a special criterion, that they have never practised law, have never been learned in law and have never seen how the system operates, and such a person alone, to be capable of being the chairperson of the commission. That is what the Minister for Transport, Tourism and Sport, Deputy Ross, has imposed upon the Government. That is the criterion for being chair that he has attempted to impose upon the Government, that somebody who knows what they are talking about, regardless of whether he or she should get the job, should be excluded from the job. Merit should have nothing to do with any person who has any recent legal experience, whether judicial or in practice.
Why are we asked to make this distinction, and to depart from merit or the idea that the commission, to which we entrust great powers and freedom to make decisions between candidates for the Judiciary, should be chaired by somebody who does not, by definition, possess those particular qualities? Why is it that the chairperson must, by definition, be somebody who has not practised law in the past 15 years, who has never been a judge, who should not really know what is required of a good lawyer for the one part, or a good judge for the other? The person should not have personal experience of any of these issues.
One is driven to the conclusion that the Minister, Deputy Ross, is driven by a personal agenda in making this particular requirement of his Government partners. I do not want to get personal about this, but I know what the background to his animus in this matter is. It arises from his dissatisfaction with the way a particular case he was involved in as a plaintiff was decided. I will not go further into it. I know the details, and I know what we are dealing with here. That is why he wants this provision to be put in place. I would have thought that is fair enough and that the idea of a lay chairperson would not be unique to Ireland, if it is enacted, although it would be highly unusual. Then I asked myself what particular ideology lies behind this? We have to refer to The Sunday Timesarticle of a fortnight ago which revealed for the first time, by means of an essay by Ms Carol O'Neill, that the origin of this is that the Minister tendered, as a demand of his coalition partners, that they should adopt a Private Members' Bill that he had introduced when in opposition to amend the Constitution as to the manner in which the Judiciary was selected. I am totally in favour of an inventive back bencher, as he then was, coming up with an amendment to the Constitution which he thought would be an improvement on the way judges were appointed, but then I looked at the text of the Bill that he was pressing upon his would-be coalition partners. I remind the House this is a man who said that, while he was negotiating with Deputy Enda Kenny for the formation of the 2011 Government, he believed he was negotiating with a political corpse, to use his own phrase.
That is fair enough. What is this the alternative to? The Minister, Deputy Ross, wanted all judicial appointments in future to be sanctioned by an Oireachtas committee on which the Government of the day would be in a minority. That is what he wanted to be put into the Constitution, weird though it was. We now have a situation where the Government is a minority on virtually everything, but it does not matter. He wanted there to be a constitutional provision that whoever finally decided on the composition of the Judiciary should be subject to the sanction of a committee in which the Government would be a minority.He wanted to take the function of advising the President, which the Government has under the Constitution, away from the Government of the day and confer it on the opponents of the Government. He wanted the opponents of the Government, even if it was a majority government, to have the right to determine who should become a judge. While he now says, in favour of this legislation, that he wants to depoliticise the manner in which the Judiciary is appointed and to remove cronyism from it, when in opposition and when he imagined that he still would be in opposition, he demanded the right for the Opposition to decide who should be members of the Judiciary. I make that point to try to examine, fairly and reasonably, whether it is reasonable for him to now demand that the chairperson of this commission, regardless of merit, should never be a practising lawyer, a person who has been a practising lawyer in the past 15 years, a judge, a former judge, or whatever. That is based not simply on personal prejudice - as I have explained, though I have not elaborated on it - but on a misconceived notion that somehow would end political patronage in the appointment of the Judiciary by taking the function of appointing judges from the Government of the day and conferring it on the Opposition of the day, of which he was then a member. That was to be the way to end cronyism. Does any of that stand up to scrutiny?
It does not. If this commission is supposed to be impartial, fair and reasonable in the way it selects judges, is it not extraordinary that, from among its own members, it cannot select a chairperson who is, or has been, a lawyer or a judge? Is that not an extraordinary disqualification to impose upon a group which is supposed to be impartial in every other way in respect of the appointment of judges?
I will now come to the amendment proposed by Senators Bacik, Humphreys, Nash and Ó Ríordáin. In respect of their definition of "the service of the State", I am fully supportive of the proposition that it should be clearly defined to whom this term refers. I expect the Minister to agree with that. We cannot have a situation in which people who are "in the service of the State" goes undefined. The Senators have proposed an amendment which says that:
A person is employed in the service of the State if he or she is—
(a) a member of the Garda Síochána,
(b) a member of the Defence Forces, or
(c) a civil servant in the Civil Service of the Government or the Civil Service of the State.
Are HSE executives or chief executives of statutory bodies included in this definition? Why do we go with loose language of this kind? Why do we not accept that, if we are going to disqualify people from membership of the commission, we should define exactly who is disqualified? I have no problem with the proposals of Senator Bacik and her colleagues because I can see precisely what they are dealing with. They are saying that we should define the term and make it clear that civil servants who are subject to ministerial direction - express or implied, real or imagined - cannot function on this body.
I want to summarise my position in respect of section 2. The diversity definition given by Senator Ruane would disimprove the section. To have this body inquire into the socioeconomic status of people is a big mistake. To put this body in a situation where it has to ask people whether they are a member of a minority group or whether they are in the so-called majority group is a big mistake. To exclude a person from chairing the commission solely by virtue of the fact that they know something about what they are doing is wrong.
The Labour Party amendment, in defining those in "the service of the State" as those in particular categories, is correct. In those circumstances I strongly believe that Senator Ruane should withdraw her amendment and I ask her to do so. I will not vote against it. I do not know whether the Government would accept it in any event. In respect of the second amendment, I urge Members of this House to vote for it. In respect of the third amendment, I ask the House to agree with Senator Bacik's amendment. It is reasonable with regard to all of the circumstances.
I want to emphasise that I fully understand where Senator Ruane is coming from. However, I ask her to reflect on the process of appointment that would take place if her amendment was accepted by the House. I ask her to consider how this body would ask about the socioeconomic status of an individual. What does it mean? Does it mean his or her bank balance or property holdings? Does it mean a person's parents' bank balance? Does it mean where a person came from or how he or she was educated? That is not a good basis on which to make an inquiry with a view to determining who should be a judge.
I will make another point which Senator Ruane might take on board. People from disadvantaged socioeconomic backgrounds have made it to the top of the legal profession. I have seen a bus conductor, whom I knew well, establish a successful practice in the Acting Chairman's part of the country. The Acting Chair will probably remember the person I am talking about. I have seen people who were born in Coolock and people whose parents were at the edge of poverty becoming very senior judges in their time. We should not ask this body to inquire into those matters. It will make for a very unequal and very unsatisfactory appointment process. The Senator may ask what is wrong with telling a group that we should have working-class lawyers on our Bench. That is possibly what is in the mind of some Members. By definition, after ten or 12 years they are no longer members of the working class as most people would understand it. They are the earning class, the people who have succeeded in their profession and the people who have brought themselves, if they are otherwise eligible by virtue of their practice, to being capable of being appointed on merit. What more does the Senator want to do in respect of such people?
I do not know where to start. For the length of time Senator McDowell was speaking he was reinforcing why we need diversity both on the commission and in the Judiciary. Whether Senator McDowell opposes the amendment, and whether he tries to stress that he somehow understands my intention, he continued throughout his contribution to show a lack of understanding of diversity and very classist and elitist protectionism in respect of the Judiciary.It nearly shows a fear of diversity. When we look at determining social class, I suppose it is the difference between me and him. It is very obvious. We have pathways to law and access programmes now. The Trinity College Dublin access programme is working with schools in areas of deprivation. One only has to look at somebody's CV to find out where he or she went to school. Diversity does not have an impact on merit. During the first half of this debate, Senator McDowell spoke about the need for those being considered for these positions to have a grasp and understanding of the law and to have been in the practice for a number of years. It was as if those who fall into the bracket of diversity would not meet those requirements. Those who would be chosen for interview for these positions would be selected on the basis of their merit. Diversity is aspirational. Sometimes we need people in the majority group, like Senator McDowell, to move over, make space and allow diversity in. Sometimes that has to happen through positive discrimination. This is not about asking people about their socioeconomic status, or wanting to see their payslips. The routes people take through education and the backgrounds from which they come are clear. My earnings might be different now that I am standing in this Chamber as a Senator, but that does not change who I am culturally. It does not change my class, my experiences and my attitudes.
One can have an amazing understanding of the law and be an amazing judge, but still have an atrocious attitude towards people of a different class. That can make the difference in a judgment. Everyone who sits and makes a judgment definitely has an unconscious bias. It does not matter whether he or she understands the law. In 2017, some 60 people were locked up for offences relating to television licences. Then Deputy Michael Lowry walked free last week. I ask Senators not to tell me that when a judge sits in the chair to consider these matters, he or she does not have an unconscious bias. After the period of austerity, the number of people being locked up for not having television licences peaked at an all-time high. This was based on austerity and on poverty. If the judge understood the context, I am pretty sure the last thing he or she would do is lock up a woman from Jobstown for having missed her television licence payment. There are differences in judgments, whether we like it or not. The question of whether people set out to do this is a different one. We need to be aware that we have an unconscious bias. I have it and Senator McDowell has it. Regardless of how fair and just we like to be, we all possess an unconscious bias that sways how we think and how we judge things and sometimes gives us a lack of understanding.
Senators might like to pay attention to section 7(1) in Part 2, which provides that recommendations "shall be based on merit". Everything in section 7 after subsection (1) is based on subsection (1). Section 7(2) provides that "Subject to subsection (1), where the function, under this Act, of selecting and recommending persons for appointment to a judicial office falls to be performed, regard shall be had to" three objectives that are set out and defined. Everything is underpinned by merit. When I read the Bill, I noted that section 7(2)(b) sets out "the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole". Diversity is mentioned throughout this Bill. Some people might like to think that diversity is about whether someone went to UCD or TCD, but that is not the case. Diversity is based on a million other factors, including social class, gender, ethnicity, sexual orientation and gender identity. There is so much more to it. Right now, diversity, as set out in this Bill, does not reflect the actual diversity among the population as a whole.
When I read the Bill, I formed the impression that its objective was to address diversity deficits on the basis of a report that advocates systematic changes to judicial appointments. We need to be aspirational when we look to reform our Judiciary. I refer specifically to the structural barriers faced by minority groups and people from less advantaged socioeconomic backgrounds. It is often the case that people like me do not feel like we belong in certain spaces. We are not staying at the bottom of the ladder because we do not have ability or merit, but because other people are maintaining the space rather than moving over and allowing us to be part of the setting of the agenda. That is where the provision with regard to lay people comes in. It will allow us to become part of the setting of the agenda and to be noticed. That is when our merit comes to light. It is sometimes the case that the only reason our merit is picked up on is that we were allowed to come to the table. We need to define "diversity" so that diversity can be at the table, be represented and be heard. That will allow people to be acknowledged for their merit. When we aim for our Judiciary to reflect the ethnic, gender or social composition of this State, we send a clear message that people from under-represented groups who want to pursue judicial careers will be welcomed, supported and valued in those careers. Does Senator McDowell value diversity and difference?
Society should always be confident that the Judiciary is able to serve justice fairly. At a time we are overly represented by white, middle-class or upper-class judges, we must acknowledge that there is unconscious bias and objectivity. A bus conductor and a person from Coolock are not representative of society as a whole. We cannot point to the exception, for example by referring to my status as a Member of the Seanad. There has to be equal diversity. We cannot point to one person and say we have diversity. That is not an accurate picture of society as a whole. Diversity, in itself, is merit. Diversity benefits us all and reflects who we are as a society. If diversity is defined, it does not mean we will not produce high-quality judges with an in-depth understanding of the law. It means we recognise a deficit of difference in our Judiciary and we value diversity, not only on the commission but also in our Judiciary. It really shows the difference between attitude and understanding.
I have come up against many judges. I should probably stop sharing personal experiences. Sometimes it is my only way to put the point across. As a child, I stood in Tallaght court in front of a judge who did not care about my situation, what I had experienced or who I was as a person. All he cared about was standing down and speaking down to me and my father. My father respects the institutions and had never entered a courtroom in his life. He could not believe he was in this situation with his teenage daughter. The judge did not look at the charges. He did not even read them out. He stood there and berated my father for who he thought he was and who he perceived him to be. That is the difference. When we look at diversity, we get people who understand that people end up in a legal system in front of a judge for various reasons. It might not change the judgment because if one breaks the law, one breaks the law and the judgment is made. It might begin to change how we view and treat people when they are in the court system. If we clearly state in our definition of "diversity" in a Bill that is supposed to be about diversity that we aim to raise our game in this way, we might send a clear message to people from working-class, Traveller or migrant backgrounds that we are prepared to create space so they can pursue a career in the Judiciary.
Regardless of whether Senator McDowell opposes this amendment, he needs to understand that respecting diversity, and the aspiration of aiming to create space for someone from a minority background, does not mean that someone else will not get the job. The person has to be there based on merit because merit is the primary focus of this. When we talk about diversity in this Bill, we are saying it is an objective. It might not be an objective right now, because we need more people in the legal system and studying law to be able to create a diverse Judiciary. We are setting a marker that this is an aim, an objective and a goal. It does not stop anybody getting in because they are in the majority. The reason I have included the phrase, "the majority group", in this amendment is that I do not want to exclude the majority voice - the ruling class and the middle class - from being seen as part of the diversity of the Judiciary in the same way as the other groups listed in the amendment. Right now, those in the majority group are maintaining the space. I could probably go on for ages, but I know I am biting into Senator McDowell's attempts to filibuster the Bill for the rest of the night.
Understanding diversity is what shows seriousness, giving it real thought and not being insulting as though somebody would not be there based on merit just because they are from a different backgrounds. Merit is always going to be the underpinning principle as to whether someone will be in a position to even go for the Judiciary in the first place.
I listened with great interest to what Senator McDowell said and I learned a great deal from it. He spoke extremely carefully and meticulously, he addressed the points and I think he did show respect for Senator Ruane's amendment. She clearly feels he did not but I thought he did. I found it a most interesting exercise. He was careful in what he said and his delivery was slow because it was careful and thoughtful but I certainly appreciated it.
I am generally very much in sympathy with the intention of Senator Ruane's amendment to introduce diversity. I think I heard her say at one stage that it does not matter whether they know anything about the law.
That is what I thought I heard her say. She did not say it. That is grand.
The problem with these lists and the reason they are often rejected by various Governments is that when they are prescriptive, they always leave people out. What does one do to rectify that? Does one endlessly extend the list or can some kind of general formula be found? Senator Ruane is trying to find a general formula and I thoroughly approve of that. However, there is no mention of the disabled on the list, for example. I personally think they should be mentioned. It is not that somebody in a wheelchair should naturally be a judge but he or she should certainly be considered for it. In a situation where courtrooms are not adapted to allow wheelchair access, such people should certainly be considered. If the presence of a certain judge in a courtroom meant that those facilities were improved, then that would be a bloody good thing. I remember when Senator Brian Crowley was elected to this House. Previously in Leinster House, we went up hill and down dale, backwards, sideways and all the rest of it. There were little steps here, big steps there and flights of steps somewhere else. When he was elected there was suddenly a flurry of activity, and it was all flattened out and made wheelchair accessible. Now we have lifts. I think that is a very good thing, and if it takes the election of somebody to the Senate or the nomination of somebody as a judge, that is fine. That is a good principle.
Turning to amendment No. 4, I believe the situation Senator McDowell is attempting to correct is one of the most ludicrous, fatuous and imbecilic elements in the entire Bill. Judges are respectable, decent and intelligent people, or at least the vast majority of them are, and to specifically exclude people with this background from consideration is absolutely ridiculous. In fact, I put an amendment down elsewhere to the effect that chair of this commission should be the Chief Justice. That is how I think it should be. The most senior person in the profession should be in charge of this situation. Can Members imagine this in any other profession? Do we think the vets would have somebody from outside their profession select the head vet? Do we think doctors would allow it?
In the old parlance of Dublin, "You have your glue, mister". They would not.
The Bill states that “lay member” means a lay person who is a member of the commission and includes the chairperson and that “lay person” means a person who does not hold and has never held judicial office. The very fact that a candidate has a professional engagement with the area in which they would be expected to elect or nominate a judge disqualifies them. Their whole professional experience automatically disqualifies them. The definition of "lay person" goes on to say that it is someone who is not and never has been the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor or a law officer. I cannot think of any officers that have better qualification to be the Chief Justice. Then the definition goes further and states such a person "is not, and in the relevant period specified by subsection (2)for the purposes of this paragraph, was not, a practising barrister or a practising solicitor". It is utterly insane. I do not see how any intelligent member of the legal profession could possibly stomach that and no other profession would do so. It is utterly and absolutely ludicrous.
Finally, amendment No. 5 states a person is employed in the service of the State if he or she is a member of the Garda Síochána, a member of the Defence Forces or a member of the Civil Service. I am just throwing this out but perhaps a simple way around that would be to use the descriptor of somebody who is paid by the State. The provision might say that a person is employed in the service of the State if they are paid by the State. That seems to me to be a pretty obvious method of determining it but perhaps there are drawbacks to that as well. I leave this little pearl of wisdom before the House for its consideration.
I welcome the Minister to the House. He was not here earlier when Members had a fairly heated debate about the Group of States Against Corruption, GRECO, report but I will leave him with one line before turning to talk about the amendments. The Minister or members of the Government might reflect on the GRECO report tonight, which I understand to be a very significant report. It has been leaked in certain sections. Several people have suggested they have had sight of it. It might be helpful for us where this Bill is concerned if the Minister or the Government would consider releasing this important report. It impacts on this Bill. I said earlier that this will come back to haunt us. If half of what is suggested in this report is true, it will haunt the Government and may cause problems for the Government itself.
I am not here to ridicule any particular Minister. That is not for me to do. I want to be constructive in respect of the Bill. I spoke to one of the Minister's officials today but I have no indication as to the Minister's support for any of these amendments. Given the amount of time we are spending on this one, it might be helpful if between now and tomorrow, or the next day we address this business, we started having more engagement with the Minister, his Department and his officials. It would be helpful to get some indication of goodwill in support of these amendments. I think it is helpful for the process. The Minister, Deputy Flanagan, is busy, as are his officials. We too are busy. Setting that aside, I am appealing to the Minister to ask his officials to engage with us tomorrow and the next day to see where we can meet halfway if at all possible. That is important.
The next point is that the Minister and the Government are not fooling me because I have spoken to several very senior people in Fine Gael who are grossly unhappy with this legislation. There is suggestion here that poor Deputy Ross is struggling because the boys who share the Cabinet table with him really do not want this Bill to go through at all. Perhaps that is the case. I do not want to think that but I am aware that the Minister, Deputy Ross, has been busy on the telephones, ringing around, looking for support. The Taoiseach himself has been around looking for support and yet I meet Fine Gael Senators and Deputies, and Ministers for that matter, who look up when the Bill is mentioned. They do not say very much. The eyes go up to heaven. They do not believe in it. That is the reality, of it and the Minister knows that. I appeal to him to get this GRECO report out tomorrow. I think it is very important. I think we can expect to hear some more tomorrow. I understand that a number of Sunday papers will publish aspects of the GRECO report. The Minister knows and I know that it is out there.I do not know what the problem is. I do not know why the Government has decided to hide this important GRECO report that deals with real issues. As I said earlier, when an issue like this arose before the Minister for Transport, Tourism and Sport, and former backbencher in the House stood up and roared and screamed about openness, transparency and accountability. Now he has shut the door for some reason and prevented the Minister for Justice and Equality and his colleagues from publishing the GRECO report. Perhaps the Minister present will address the matter today, if he so wishes. Before the week is out the media will publish a substantial element of the GRECO report. I hope that he will remember I said so when he reads the report in the media in the next few days.
Amendment No. 4 is an absolute disgrace and raises very serious questions about the Government. It shows that the Government wishes to exclude judges. Judges are in a very difficult position because they cannot enter the political arena and make a case. Let us consider the many distinguished judges who have served this country. I am particularly mindful of Mrs. Justice Susan Denham. In a very coded way she tried to make some calls on the judicial appointments commission and other forms of reform, in terms of judges. The separation of powers precludes judges from entering the political arena. I know that the Minister is a lawyer and knows this business very well. We are precluding them. It is an insult to the Judiciary that they are precluded from allowing their name, or a lawyer for that matter, but someone with legal practice and of good standing to allow their name to even be considered. They have been excluded. There is a vendetta against the Judiciary. I am not from the Judiciary, none of my family is a member of the Judiciary, and I have no relations or contacts with the legal profession. The citizens of this country have been well served by the Judiciary. The Minister knows that and all of the Senators know that. For some reason someone has decided to exclude judges. Therefore, judges cannot talk for themselves but we are here to talk and use the platform that is Seanad Éireann to highlight concerns. It is important that judges are not excluded.
I wish to refer to the Office of the Chief Justice, and not the individual. If this Government respects the office of Chief Justice then it will allow this. To pot with the Minister for Transport, Tourism and Sport declaring that he will not let the legislation through or that it will not happen because he made the deal with the Government. I say let him walk. The Government has a B team and can select many people. The Government can go west, south, east, etc. I urge the Government to call his bluff. He will struggle to retain his seat in the three-seater Rathdown constituency and, if so, Fianna Fáil will get a second seat and there will be two for Fine Gael. Is that not the party's target and plan?
I urge the Minister for Justice and Equality to call the Minister for Transport, Tourism and Sport's bluff and let him walk. Does the Minister for Justice and Equality think that the other boys in the same group will walk? I firmly believe that they will not walk the plank with him. I urge the Government to stand up to him and I say that because it needs to be said. All the journalists and politicians are talking about the matter yet somehow no-one is prepared to call this what it is. The Government signed up to a bad deal, its back is against the wall, and it is now forced to deliver yet it does not believe in the deal.
In conclusion, this legislation is important to the Judiciary. I hope that the media persons who are listening will give this issue great coverage tomorrow.
Fine Gael has a long tradition in law and order, and of supporting and respecting the Judiciary. If Fine Gael wants to make a stand then it can do so and allow a judge or a member of the legal profession to be considered for appointment to chair the commission.
This debate has already proved to be a very interesting and provocative debate. I listened with great intent to Senator McDowell who made genuine points. I do not question his motivation but I do not agree with him either. The word "diversity" has been bandied about a lot but it still is and will always be an extremely important word. Diversity is something that should define us a people and we should want to be diverse. Ireland seeks a seat on the UN Security Council because we embrace diversity and encourage people to be diverse.
To be fair to Senator Craughwell, he will present us with a presidential election. I wish him the very best of luck and I am sure every Senator in the House would also wish him well. Of course, Michael D. Higgins is a great President. I sincerely hope that he stands again and, if so, he will have our full support.
If I was not interrupted it would be grand. Diversity is what should define us and it should be an aspiration. Senator Ruane was right to table her amendments as it has provoked this debate.
I wish to say the following to Senator McDowell. Merit is a basic requirement. I believe that nobody should be considered for appointment unless he or she has merit, irrespective of his or her background. I mean irrespective of who they are, what they are, where they come from, or whether they come from very difficult parts or the most illustrious parts of the city. I do not think that we need to debate merit.
Let us say two people with similar and equal standing in terms of ability, experience and competence were being considered yet one had a disability, and in order to provide support for that person there was a cost implication. Does that person by nature of his or her disability end up being discriminated against?
They should not. Senator McDowell gave very detailed examples yet I did not hear him outline the type of scenario that I have just done. In order words, I wish to reverse his argument.
Let us say somebody from the Traveller community was lucky enough to reach the level of junior or senior counsel, and the position of a District Court judge was being considered, and let us say it was noted that a significant number of cases came from the Traveller community. Would there be covert discrimination, in terms of appointment, because there might be a belief that he or she might have a better understanding or be a little more generous when it came to sentencing? The converse of Senator McDowell's argument also exists. He made a strong and convincing argument but one can flip his argument to make a claim for the opposite. I urge people to give careful consideration to Senator Ruane's amendments.
I have not finished my contribution yet. I urge the Minister for Justice and Equality to see what he can do in the next week in terms of Report Stage. I urge him to come up with a formula that embraces what Senator Ruane wants to achieve and what I presume that we, as a group, want to achieve. We may approach the matter from different angles and I sincerely hope that everybody in the House wants us to agree a global position. I think that Report Stage is a possible avenue because it gives the Minister an opportunity to reflect on the conversation that has taken place here. I urge Senators to remember what the Seanad represents.We must remember the Seanad is supposed to be a Chamber where we get into the nitty-gritty of debate and come up with measures which are better than what Dáil Éireann has presented us with.
There might be an avenue where the Minister can examine this and come back with some proposal on Report Stage. While it may not be what we all want, it might help in the journey of achieving the type of Judiciary we want to see evolve into the future.
It is important to recognise that diversity is not an abstract concept or something invented by my colleague, Senator Ruane, which we must approach for the first time and imagine how we could possibly achieve or determine it. Diversity is an established concept and value which has been shown to have exceptional merit and be an important element, particularly in decision-making. The lack of diversity in decision-making in the financial crisis, along with the dangers of groupthink and of unconscious bias, have been strongly and academically proven. This is not a matter of opinion but of long-established evidence. When one has a lack of diversity, one has a danger of groupthink, unconscious bias and unchallenged assumptions. Academics, like Rosemary Hunter, have spoken about how diversity has eight benefits in the Judiciary specifically. Two which she highlighted are the diversity of life experience and what it can bring, not simply with individual decision-making but, more importantly, to the wider collective knowledge within the Judiciary. In many situations, judges will not be acting alone but with and part of a group. For example, one may have a three-judge panel from the District Court up.
Similarly, diversity is addressed in this Bill in two different points, first, around the commission itself and its lay members, and second, regarding the Judiciary. On the commission itself and its lay members, the scenario was raised that many lawyers cannot help their lack of diversity because of where they have come through. The diversity criteria do not apply to the legal members of the commission but to the lay members. The lay members’ diversity is being sought actively because, as far as is practicable, the commission must ensure it reflects the diversity of society. This is not about each individual being put through a test for diversity. Instead, it means that when we look at this group it reflects society and its realities.
The fact is that when we look at many key decision-making places, they do not reflect diversity. That is not just about the individual and his or her chances. This is around the collective need to address, as was put eloquently by my colleague, the deficit of difference in these spaces.
Yesterday or earlier today, many in the House spoke passionately about the Group of States against Corruption, GRECO, and the Council of Europe. I was proud to be a member of the Council of Europe.
Yes, it was today but it may have been mentioned yesterday too and, perhaps, will be again tomorrow.
Given our concern around what the Council of Europe and GRECO have stated about the Bill, it is worth noting that the Council of Europe has pushed for and called for greater diversity in our Judiciary. There was a report last year which found that only 28% of the 43 countries in the Council of Europe had reached their targets for balanced representation of women and men. That is to take just one starting point on diversity. This is not an abstract concept. This provision can be strengthened and made more practical. For example, the inclusion of the issue of disability has to be considered because 18% of the population has a disability. We have equality grounds and a new public duty on equality and human rights which require every single public body in the State and Department, including the new commission, to take active steps to promote equality across all of the equality grounds and go wider to promote human rights. This is an active duty.
If there was such a difficult dilemma as we were told, one would wonder how all of these public bodies and Departments are approaching their legal requirement in this regard. It is a requirement and there are ways to do it. In many cases, it is not simply to say I will ask the applicant a set of questions. It is about how the invitation is framed. It is about how the Bill should signal these are the kinds of voices which are welcome and will be part of the discussion. It is about where one places the advertisement when it comes to these matters. It is about what the Public Appointments Service puts out when it requests people to apply. It is about the invitation.
Diversity is sorely needed in the Judiciary. There are key concerns which have been recognised everywhere. That is why there has been such a global push to improve our Judiciary. It may be worth bearing in mind that when we talk about reflecting the diversity of the population as a whole, there is also a precedent for that in our courts, namely, jury membership. There is a merit which is recognised in the idea that one will be judged and heard by one's peers. That is part of something that our Judiciary can bring to decisions.
Merit is a red herring. We had a long go at the merit argument where we were told there were no women at all with merit and it was an awful pity. That is why we had to have only 16% of women in the Dáil. Thanks to a proactive and constructive measure of invitation, we will see quite a lot of women making quite a lot of substantial contributions across both Houses of the Oireachtas. That is one example of where the merit argument had previously been used.
The point is that the merit argument was used in respect of the gender quota and was used for years.
We need to support the idea of diversity. I am sure it can be strengthened in how it is formulated. I am sure my colleague would be willing to work with people around that. It is important that we are serious about diversity.
In respect of the other two amendments, I am torn on the question of the chairperson. I have huge respect for the Chief Justice. We are blessed with our current Chief Justice who is an exceptional and excellent person. I understand, nonetheless, the intention to ensure that the board should not be simply a space which is entirely captured in which those lay persons who are participating do not feel they cannot fully contribute or engage.
I am also not comfortable with the chairperson being appointed by the Minister. There is still a question around that appointment. I have put forward my own amendment which comes in later. I may not press it as I may look for a stronger formulation. I am happy to work with others across the House on it. My amendment proposes the commission selects its own chair. I support the idea of the lay majority. Whether a one-person majority is sufficient, I do not know.
What is important is the skills that this chairperson needs. I agree it is important they would have legal knowledge. They need to have legal knowledge but also excellent communication skills and be accessible. What none of us wants is a divided or divisive forum in which we set presumptions about lay persons against presumptions about the law and legal persons. We need to ensure we have a chair who will facilitate constructive co-operation, as well as the bringing of all skills, perspectives and diversities to the table in the decision-making process.
On some of the questions around where one went to school and so forth, none of these is the way diversity is determined in any modern workplace or elsewhere where it is actively pursued. Where they do come up is in the legal system, however. I know many who have struggled to get the opportunity to devil because they do not have nice answers or, as was put eloquently by Senator Conway, they are not sending positive signals that they are like-minded or come from similar backgrounds. It can be hard for people like that to find their way in the system.This is an opportunity to provide an incentive for them.
I support the spirit of the Labour Party's amendment but I wonder if other categories might need to be added to the definition because there are some persons who might be considered to be in the service of the State who may not be covered by its provisions. That is a matter which could, perhaps, be revisited.
I want to speak to amendment No. 3, as proposed by Senator Ruane. I wholeheartedly agree with the aim of the diversity aspect of the amendment. Having diversity in every walk of life should most certainly be an aspiration for us all . It is not only good for the person but for all of us to have diverse participation in decision-making. I am glad Senator Higgins called the merit argument a red herring because that is exactly what it is. We hear about it in many ways. Merit is taken for granted. Many people can be there on merit. It is not exclusive to one group or one type of voice. Merit comes in many forms.
I wish to comment on the point raised by Senator McDowell to the effect that somebody who qualifies to be a judge - who would need to be a lawyer who has been practising for ten years - is, by definition, not a working-class person but part of the earning class and that, therefore, it is somehow not an argument to make at all. I have almost ten years' experience as a practising solicitor but I would still define myself as working class. I will always define myself as working class because it is a cultural thing, as Senator Ruane rightly pointed out. An unconscious bias does exist. One sometimes has to be on the receiving end of it to realise it is there, but it is a very real thing. Throwing out examples of a few very exceptional people who made their way through to the top of the legal profession does not mean that anybody can do it. If we just have a few people from one particular group or one particular area in the country, it does not mean that everybody can make it.
I was very lucky to get the opportunity to train as a solicitor. It was during the Celtic tiger. I do not think I would have the same opportunities today. I trained with a very good firm that paid me a good decent wage and also my college fees, which were substantial. That allowed me the opportunity. I remember having a conversation with a gentleman in the same profession who was much older and from a very different kind of background. A couple of years prior to starting my legal training, a minimum wage for trainee solicitors was introduced. I had to sit there and listen to this man saying that he was totally opposed to the introduction of a minimum wage for trainee solicitors because the wrong kind of person was getting into the profession. I was that wrong kind of person and I probably still am for some. In any event, I made it through.
I thank Senator Norris. That is good to hear. If I was going down that route now, I do not think I would make it. For a young person to become a solicitor now, he or she has to do a series of unpaid internships before he or she gets an apprenticeship. He or she then has to pay huge fees to the Law Society. Luckily, mine were discharged by the practice by which I was employed but not many practices do that these days. This whole phenomenon of unpaid internships was not around when I was training. I am thankful for that because I would not have made it through otherwise.
Senator Ruane rightly pointed out the access programmes available in many universities which allow people to come through. However, getting a law degree is just the very first step on a very long ladder. Fair enough, people might be getting their law degrees, but they are not moving on to practise as solicitors or barristers. There might be a minimum wage for trainee solicitors but it does not allow people from rural backgrounds who would have to live in Dublin or one of the big cities to access these opportunities. As I have said, the unpaid internships exist. Who can afford to do unpaid internships well into their 20s? As a barrister, one has to have very wealthy parents to support one for one's first ten years practising law, by which time one would be well into one's 30s. Again, who can afford to do that? Only people from a very small group. That is the reality of it. I ask the Minister to look at this and see what kind of programmes or scholarships could be put in place. It is not good enough that we have people getting law degrees and not being able to access the legal professions. If there are not people accessing it at this point, they will not make it to practising law for ten years in order to become judges in the first instance. They are not going to be there. I would not be there, and there are plenty more besides me.
Senator McDowell referred to women now making up the majority of both the solicitor and barrister professions, but they are not making it to the top. Last year, we had the very first judge ever to take maternity leave in Ireland. It was nearly the talk of the country. It was definitely the talk of this town. I do not think anybody has taken maternity leave since. That paints a picture. Young women are not becoming judges. Women are not becoming judges at the rate they should. We do not have female partners in law firms. I have been qualified for almost ten years and among the colleagues with whom I qualified, the women are being left behind. They are not becoming partners in their law firms. They have been denied bonuses because they had the audacity to have a child. This can happen not only in the year in which bonuses are being handed out, but at any stage in their careers. They are being denied bonuses, they are not getting the same opportunities and they are not progressing. It is very difficult for women to progress at the Bar as well.
There is a culture in place and we are not going to have people of diverse backgrounds becoming judges until that culture is seriously addressed by the Government. I would like the Minister to reflect on that and perhaps to work with Senator Ruane because what she is proposing has its merits. It is, however, a bit premature because we will not have the people coming up through the ranks to actually fill these positions in years to come. Senator Conway referred to different costs that would be involved if a person needed to have a courtroom adapted.
Exactly. I was going to refer to the cost of not having diversity. That is perhaps not a cost that immediately springs to mind. Many people, and many women, come up against that kind of discrimination cost. They are not given jobs because they may take maternity leave or they may take time off at some later stage in their careers. That is a very real situation. I have no doubt that people with other differences in other spheres are being discriminated against. We need some active measures. I am not sure if this amendment is the correct way to go about it at the moment because, as I said, it is going to fall flat on its face if we do not have people coming up through the legal profession.
I thank the Minister for sitting there and being calm and collected through all of this, as he generally is. As he knows, the Group of States against Corruption, GRECO, was established in 1999 by the Council of Europe to monitor states' compliance with the organisation's anti-corruption standards. Its objective is to improve the capacity of members to fight corruption by monitoring their compliance with the Council of Europe's anti-corruption standards through a dynamic process of mutual evaluation and peer pressure. It helps to identify deficiencies in national anti-corruption policies, prompting the necessary legislative, institutional and practical reforms. GRECO has also provided a platform for the sharing of best practice in the prevention and detection of corruption. GRECO has significant concerns about some of the key measures proposed in the Bill. In particular, the provisions around the new judicial appointments commission are not in line with European standards and more substantial participation is required. I have watched the Minister as a civilian and a Member of the Seanad. He is a fairly formidable character when he comes into this House or the Lower House. He is not a man to fudge anything, from what I know of him, but I am afraid that in this case I find him rather lacklustre in his support for the Bill. I am not so sure he is convinced about the Bill at all. We shall see as it progresses through the House. His Attorney General has referred to the Bill as a dog's dinner, which is rather sad. There has been much talk here about the Minister, Deputy Ross. Deputy Ross, as far as I am concerned, has nothing to do with this. This is the Minister for Justice and Equality's baby. I do not care who is in the driving seat; he is carrying it through.
I will talk about diversity for a moment. There is much talk about diversity these days. I come from a family of 11. I was born and reared in the most prestigious part of Salthill in Galway. It did not take away from the fact that our family home was built before it became the most prestigious part or that my dad was a gas fitter and that by and large, we struggled all our lives. We had a good upbringing and were a fairly diverse family. Every one of my sisters and brothers succeeded in one way or another and did so on their own merit. The only time in my life I was ever asked to justify myself and my background was when I sought to enter teacher training after taking a primary degree. I was asked how a man of my age would teach 12 year old children. Were a woman to be asked the same question, we would all be in the High Court answering that question. I accept what Senator Ruane is trying to do here but we cannot start with the Judiciary; we must start much lower. We must ensure that everyone has access to the profession. As my colleague, Senator McDowell, has said, a practising barrister has the same opportunity to advance through the profession as any other barrister. No one will ask barristers once they enter the profession who they are or what they are. I was never asked as a teacher to justify my background. No one ever treated me differently because I was a secondary entrant into education. No one ever asked me, given I did not enter the profession straight from college and was in my 40s when I started teaching, what I would know about teaching. It just never happened. If we want to talk about bringing in diversity, we must start at a much lower level. We must ensure we treat all people as equals from the very beginning of their educational careers right through to whatever national school, secondary school, college and so on they attend.
I am therefore not sure amendment No. 3 will do anything for the Judiciary. It is not the case that anyone can legitimately ask an aspiring judge to explain his or her background or sexual orientation.
I remember working in London when I was about 15 and a half or 16 and talking to builders, and they used to always say to me that the worst foremen they ever had were those who came from their own class. Class distinction, diversity, all these things are a frame of mind. I am not for one minute condemning Senator Ruane for what she is trying to do here but we need to go much further back than the Judiciary. The only complaint I have ever had with the Judiciary in my entire life was that Attorneys General almost had an automatic right to be elevated to judge. As far as I recall - I am sure my colleague, Senator McDowell, will correct me - only one Attorney General in the history of the State was prevented from having a private practice while practising as Attorney General. Senator McDowell may or may not agree with that.
Like my colleague, Senator Higgins, I have difficulty with the provisions relating to the chairperson. I do not believe we should be talking about excluding the Chief Justice. Ireland has been served well, by and large, by its Judiciary and it would be patently wrong to put some civilian in place of a qualified judge to chair these committees. I trust our Judiciary - I have to. If we cannot trust the Judiciary, there is nothing left. I will ask the Minister this: if we were to appoint a cardiologist or cardiac surgeon in the morning, would we want that person to be appointed by a non-medical professional? Having lain on a cardiologist's table to have a couple of stents put in, I certainly want the guy doing it to know what he is on about, and I want to know that the person who appoints that person knows who he or she is appointing. I do not want someone who is not qualified appointing people to senior positions. I would have the same difficulty in respect of a civilian or legally non-qualified chairperson. Then, when we go down through the various parts of the Bill defining a layperson, we see he or she shall never have held a judicial office or been Attorney General. By the time one has finished going down through this, one can see that anyone who has any smattering of legal knowledge at all is immediately debarred. What sort of nonsense is this?
We have tried today to slow down this Bill in order that we might look at this GRECO report. Like my colleague, Senator Boyhan, who has left for a few moments, I want to see the Minister's Bill go through, flawed and all as it is, with the amendments we are proposing. However, I will use every single second available in the Seanad and every ounce of my energy to prevent the Bill's passage until we see the GRECO report. What is in the report that the Minister is afraid to show us? Has he seen it? If he has seen it, when did he see it and what is so wrong with it that he is not prepared to publish it-----
-----or show it to us? I made the point today that when I was president of the Teachers' Union of Ireland, every now and then something came up that we could not release into the public domain, but we did release it to the executive members in order that they be informed when making a decision. I am asking for nothing else. The GRECO report will affect this legislation and what the Minister is asking us to do is to buy a pig in a poke. He will get this legislation through the House and next thing the GRECO report will be published and we will all sit back and ask, "My God, how did we let this happen?" The Minister cannot let that happen. He is a decent, honourable man. The very least I would ask him to do is to trust and believe that the Members of this House are decent, honourable people, that we will read the report, that we will not release it if he does not want it released, but that we will be informed as we assist him with the passage of this Bill through the House. No one wants to obstruct the Minister. However, while we will be blamed for passing the Bill if there is something in the GRECO report that we need to know now, it will be passed in the Minister's name. He will be the Minister who will have brought the Bill through the House.
My constituency colleagues have mentioned the Minister, Deputy Ross. Deputy Ross is not the Minister for Justice and Equality; Deputy Flanagan is. Whatever Deputy Ross wants or does not want is irrelevant. He is not here to answer for it; the Minister is. I believe Deputy Flanagan is a decent, hard-working Minister. I ask him to believe that the Members of this House are decent, hard-working people who want to assist him. Currently, however, there is a cloud hanging over this Bill and I do not believe we should allow it pass through this House with any ease.We should frustrate it in every way we can until such time as the Government releases that report. I do not want to be that type of Senator but if that is what it takes, that is what we should do.
Before I sit down, once again, I ask the Minister, has he seen the GRECO report? When did he receive it? Is he prepared to release it before we finish this Bill?
Senator Conway spoke about someone being lucky. Senator Clifford-Lee spoke of how she had been lucky. Anything and everything we do here must be about people not having to be lucky to have opportunity or support in life. Diversity is at the heart of that.
Several Senators have mentioned disability, and I thank them for that. Disability goes beyond class. It can and does visit anybody and everybody at some point, if not directly, then people close to them. I will not labour my interest in the UN convention but it is moving us on a trajectory which is interesting regarding what we are discussing this evening. In the past, disabled people did not get within an ass's roar of the law because they were confined either at home or in institutions. They were not, generally, out and about. It is when people go out and about that issues relating to justice, equality, participation, fair treatment and so on, arise. We have people with disabilities who will be misunderstood because they do not present like, dare I say, a normal man or woman might. I have seen court cases where, because people presented obviously as being disabled - they might have had slurred speech, for instance, or may have had Down's syndrome - a view might have been taken that they could not be a good witness. There are issues, and more will arise, because disabled people are out in society. I am just raising this, not as a warning, but we will see more expressions of humanity around in society. That will give rise to issues which come before the courts and other quasi-judicial bodies.
I welcome the focus on diversity. Dare I say this in a legislative assembly, but I am not too bothered that there is some awkwardness in the phraseology and language. The important thing is that we struggle with this and even if we do not get it totally right, that we leave it there as best we can. Several Senators have suggested that the Minister and his officials might go back and hone this a little better.
The other side of better understanding diversity is an awareness of the possible and often real bias that each and every one of us has. We need others to arrest us from that. If there are some 16 men and women, some with legal backgrounds and some lay people, sitting in good faith - and I do not see that they would not do so - they will divine among themselves the ways and means to better understand and deal with diversity.
I refer to section 12, where once again, the term diversity is used. Section 12(4) states, "Subject to subsection (5), in conducting a selection process under subsection (3) for the purpose of recommending lay persons under that subsection for appointment, the Public Appointments Service shall have regard to", and then lists them in subsections (a), (b), and (c). Subsection (a) states, "the objective that the lay members of the Commission should, amongst them, possess knowledge of, and experience in, as many as possible of the matters specified in subsection (6)". Subsection (c) states, "the objective that the lay members of the Commission should reflect the diversity of the population as a whole." I will not take time to go through each of these forensically but the term "diversity" is being steered and is not just left as a wild card or statement in there. The 15 or 16 men and women that will work on that will be well able, between themselves, to challenge each other, consider and come to worthy judgments.
Tomorrow and the day after, our criminal courts will have groups of 12 men and women, picked largely randomly, one of whom will be the foreman, if that is the correct term still, or the cathaoirleach of that group, in a sense. We trust them with the infrastructure of the judicial system, the expertise of barristers and solicitors and the watchful eye of the judge to move in the direction of making the fairest and soundest decision they can. I cannot see how this has to be terribly different.
I take an interest in a particular sport, namely, hurling. Sometimes if I see a team playing the man more than the ball, I begin to think that they do not have the skill and are not up to the contest. I am uncomfortable with the extent that I have seen that in this Chamber tonight. We have heard references to two Ministers by several Senators. What confuses me is that those Senators do have a lot of skill and expertise in argument, communication and so on. I would be more comfortable if we confined ourselves to the actual texts and arguments. In a court case, the motivation of somebody who is the defendant must at some point give way to consideration of the act that they did or did not do. Motivation may be important, following a conviction, on what the sentence may be but one must stick with the act. That is not a pun. We need to concentrate on the draft Act, to try to hone it and make it better.
Recently, regarding the eighth amendment, we saw the notion of compassion and of how understanding moved to compassion. People charged with the appointment of judges need to have the opportunity to bring that to bear and for there to be somebody who has empathy and brings the different experiences they have in life with them.
This Chamber has a Cathaoirleach, the other House a Ceann Comhairle and a jury has a foreman.What are the great parliamentary qualifications that these people must possess? Where do Ministers come from? How are they appointed? They are appointed, they have guidelines and rules and regulations to follow and they have support staff. I see no reason why a layperson could not be a competent cathaoirleach in light of the supports that would reasonably be put in place for him or her. Is there a lack of confidence in laypersons among those who say that the chairperson has to be a member of the legal profession? I find that amazing, because they are the people who go into court and act either on behalf of or against defendants. Such individuals make a case and address a jury of ordinary people. We put supports in place in respect of those juries. There are rules they must follow, such as, among other things, not engaging on Twitter. We can deal with this competently and the basis for doing so is contained in the Bill.
There has been much discussion about the need for excellent communication skills. Sometimes I think we should settle for excellent listening skills as the basis for good communication. People have two ears but only one mouth. We should all remember that.
I return to the issue of disability. At the outset, I said that disability is not a class issue. However, I accept that one finds more disability in disadvantaged communities. I am thinking of a person - I am not going to mention a name - who is a very eminent professional and involved in public service. As a result of an accident, this individual now requires a wheelchair and is trying to continue in their chosen profession. The person in question is discovering the issues faced by a disabled individual when it comes to transport accessibility. Trams or DARTs or buses are often not accessible or are not accessible at every station. There is a constant need for us all to become more conscious of what it is like to be in the position of another person. There is a real opportunity to do that here. We should seize that opportunity. The Bill makes provision for a review of its operation in five years' time. That is not a long time;tempus fugit. We can do something decent here to move things on a bit, which would give the public more confidence. The perception of the public may not be 100%, but the perception is what the public works off. This measure can assist that.
I will be brief because we have a lot to go through and we have understandably proceeded quite slowly thus far this evening. I wanted to take issue with two things that my colleague, Senator Craughwell, said. He told us that we should aim low in terms of the kind of reform and change we want to see. I do not necessarily disagree with that sentiment, but I also believe we should aim high. When we are trying to bring in a more representative, reflective and diverse Judiciary, every aspect should be involved - from bottom to top and from top to bottom. The Senator also made a comparison with cardiologists. That is not a fair comparison. It is a bit lazy; like comparing apples with oranges. I understand the Senator when he says that he does not want someone who is not a cardiologist working on his heart. However, I assure Senator Craughwell - and I am sure this is true of his own experience - that I know people from working-class backgrounds who left school at 15 or 16 with no qualifications and who have tied some of the most eminent legal figures in the North up in knots. They have wiped the floor with those people in terms of their legal prowess and understanding. It is not beyond the realms of possibility or belief that people, despite coming from working-class backgrounds, have the capacity and skill set required. These people bring an authentic quality to the kind of positions we are considering here.
Senator McDowell made an interesting contribution, although, like Senator Ruane, I took issue with some of what he said and the way in which he said it. He will not be surprised by that. Nevertheless, I sat back and listened carefully. It struck me that I was quite proud of being working class when I entered this House. Asking a person if he or she is from a working-class background is not an intrusive question. Working-class people provide a different perspective to proceedings. I do not think we should fear asking people the question proposed by Senator Ruane and laid out in this amendment. In fact, many of us see diversity in this profession, although we have not yet reached the levels of diversity we should have in terms of the political and elected class. We tell people where we come from all the time, about our backgrounds, what schools we attended and what communities we come from, regardless of their economic, social or geographical or geographic situation. We see that in this profession, or this career or vocation, as a strength. I do not see why we would not want to instil that same quality and diversity into the Judiciary and into the legal class at that level.
I do not have a legal background or legal qualifications, but having come into this institution and having listened to debates such as the debate we have had this evening, I know that people do not always need legal training or qualifications. People can inform themselves, and become experienced and understand different perspectives and professions, which is critical to what we are talking about tonight. Dare I say it, a different kind of academic understanding is provided when people are given the capacity and ability to do so. I did not want to let this pass without giving my two cents. Amendment No. 3 is important and will certainly have the support of Sinn Féin.
I am here to listen, as I said on the conclusion of the Second Stage debate. I have listened with some interest. Three amendments have been tabled and have prompted much interesting debate.
In response to Deputy Norris, I did not say that I regretted the vote, but rather that I respected the vote. I respect it and I am bound by it as far as the time schedule for this Bill is concerned. We do not have a time schedule for Committee Stage. I do not have a problem with that. I am very keen to listen to Senators and to engage with them. If this legislation can be improved, then let us set about doing so. However, I want to acknowledge how far we have come with the legislation.
On the three amendments with which we are dealing, it is important that we remind ourselves that amendment No. 3, in the name of Senator Ruane, merely offers a definition of the term "diversity".The term "diversity" is used in a number of the provisions of the Bill, including in the merit provision in section 7 in terms of objectives, section 12, as alluded to earlier by Senator Dolan, and Part 8 which addresses the design of the selection process for judicial appointment and the attributes to be sought in those that may come forward by way of application for consideration for appointment. I am always interested in hearing what Senators have to say on that issue. In general terms, the Bill signals the need to include on the commission, as well as across the Judiciary, people from different backgrounds. It also contains directions of a legislative nature. For example, section 7 provides that in making a recommendation on merit regard shall be had to the objective that the membership of the Judiciary should, to the extent feasible and practicable, reflect the diversity within the population as whole. This is a worthy objective and one which I believe is attainable. The debate which has taken place over the past two hours seems to me to have been a debate on diversity on the one hand and scholarship on the other. I will leave it to Senators to decide which should supersede but I do not think we can have one without the other. Under the Bill, the commission will be required to have regard to that. There has been no compelling argument for further definition of diversity in the Bill. I am anxious that the House not divide on this issue. If Senator Ruane is willing to withdraw her amendment, or at least refrain from pressing at this Stage, I am happy to examine how much further we can go but I am not inclined to meet what is proposed in the amendment.
Having regard to the objectives contained in the legislation, as suggested by Senators Craughwell and Boyhan, we should examine whether there are barriers to entry to the professions that may exclude particular people and consider what we can do in that regard. It is important that we address issues such as access to legal education, in which the Legal Services Regulatory Authority has a role to play. It is currently examining this issue and I expect to receive a report in that regard shortly. We acknowledge the direct reference to diversity in the Bill. The procedures committee will be required to review the manner in which the diversity considerations in the Bill are being implemented. Senators spoke about a review. The work of the procedures committee is a form of review. The committee will also make recommendations on these matters and the Minister of the day will be required to report to the Oireachtas as provided for in the Bill. I will give the matter further consideration but my preference is to leave the development of the necessary procedures and practices in regard to such matters to the arrangements already provided for in the Bill. This will borne out of the experience of the operation of Act.
Senator McDowell will be aware that the genesis of this Bill is a commitment in the programme for Government. Amendment No. 4 seeks the deletion of a reference in the definition of lay member contained in section 2 such that the definition of lay member would no longer include the chairperson. I am unable to accept the premise that the chairperson should not be a lay member on the basis that this-----
I am unable to accept any change to the legislation that would give rise to a situation whereby the chairperson would be a member of the Judiciary. I know Senator McDowell would like that, as would most lawyers, because most lawyers are content with the situation as is.
Most lawyers are reluctant to embrace the type of reform envisaged in this Bill. The purpose of the Bill is to ensure that "lay member" includes the chairperson. The term "lay member" is used in that context throughout the legislation. It is an important component of this Bill. In many respects, this proposal sits neatly with the debate on the previous amendment in terms of ensuring there is sufficient scope in the chair and the composition of the commissions to incorporate people of a non-judicial, non-legal background. That is why a fundamental tenet will be a lay majority and the non-legal or lay chairperson. I do not subscribe to the argument that just because a person is a non-legal person he or she will not understand what it takes to be a judge or to practice law. It has to be accepted that there are many people of a non-legal background, people who are not judges, who are entitled to have thrust upon them the role as envisaged in the Bill.In any event, the non-legal or lay person may have practised law for a period previously. What we need to look at here is whether that person, irrespective of his or her legal qualification or background, is suitable and appropriate. The person must be a fit and proper person by reason of his or her qualifications, not necessarily legal qualifications, and his or her experience, skills, training and expertise as is provided for in section 12(5) and in my ministerial amendment No. 36.
There was considerable debate, particularly on the part of Senator McDowell, about the motivation of my colleague, the Minister, Deputy Ross. We are not dealing with a Private Members' Bill or a Bill of some years ago from the Opposition; we are dealing with reforming legislation that is not unique to Ireland in terms of the composition of the commission. Senator McDowell said the concept of non-legal or lay representation on the commission is not unique to Ireland. In our neighbouring jurisdictions of England, Wales and Scotland, the appointment boards are chaired by non-legal, lay persons. In Northern Ireland the Chief Justice presides over the appointments commission. In England and Wales there is a non-legal, non-judicial chair of the commission. In Scotland the appointments board has a non-legal, non-judicial, lay chair. Our neighbouring jurisdictions were not motivated to act on a Private Members' Bill of an Opposition Senator or Deputy of some years ago. There is no doubt the reformed systems in which commissions operate in our neighbouring jurisdictions are working well. It is important we look at emerging best practice in that regard in neighbouring jurisdictions. There is no agenda behind the measures that can be characterised as suggestive of a need to minimise the role of serving judges in the process. Less still is there any distrust of the manner in which our senior judges have conducted the recommendation process over the years. I reject any assertion of cronyism, inside tracks or jobs for the boys and girls.
-----on behalf of Government, as the Minister for Justice and Equality, the Government and I have full confidence and trust in the Judiciary which has served the State in an excellent manner since its foundation. I want to be clear on that point because there has been reference to an alternative viewpoint. I do not believe the sky will fall in if we have a commission with a non-legal, non-judicial majority or a non-legal, non-judicial chair. In that regard, I will point particularly to an amendment I introduced in the Dáil to ensure that, notwithstanding the non-legal majority and non-legal chair, we would still have - because I believe it is important - representation on the commission of members of the Judiciary in the form of the Presidents of the courts. We will come to that later when dealing with that section. It serves as an important reminder of the role and function judges will still play in the process, albeit in a minority position. Between now and the end of the debate in the Seanad, we can craft legislation that is balanced and a commission that is not comprised exclusively of, or even have a majority of, members of the legal profession. They will be represented in the form of a representative of the Bar Council, a representative of the Law Society, a representative of other groups in civil society with a particular interest and a number of judges. All courts will be represented. That represents balance in an appointments system that befits a modern democracy.
I will deal briefly with amendment No. 5 in the name of Senator Bacik and others. Senator Bacik is seeking to add a new subsection (3) to section 2 of the Bill which deals with definitions. The focus of the amendment is on the term "A person employed in the service of the State". That term is used in the definition of "law officer". The purpose of the definition of the term "law officer" is to signify that anyone so designated would be excluded from the definition of "lay person". The purpose of the amendment is to expressly include as such law officers a member of the Garda Síochána, a member of the Defence Forces and a civil servant of the State.
The thinking behind reference to "law officer" is to capture those persons working in the service of the State in circumstances where they have taken up such employment. A person had to have been, in many cases, a practising solicitor or barrister for a period of time. What was in mind was such persons employed, for example, in the Chief State Solicitor's office, the Office of the Attorney General or the Office of the Director of Public Prosecutions. There are many individuals working in the service of the State who do have the qualification of solicitor or barrister. Some may have been in practice for a number of years prior to taking up that employment. They may be working in the Garda Síochána, the Defence Forces or anywhere across the Civil Service. Recently at the Garda College in Templemore I was struck that a number of young, ambitious, energetic, well-educated and well-trained gardaí were already members of the legal profession. It is important for the Garda because it adds value to the service. The law must be as certain and definitive as it can be in this regard. The intention is to relate those who exercise functions relevant to legal practice to the category of person the definition of lay person excludes as well as those who are judges or who have held judicial office in the past. It is not necessary to expand the persons excluded from the definition of lay person in the manner in which the Labour Party is proposing.I am not inclined to do that as I do not believe it is necessary. In that regard I am reluctant to accept the amendment.
I will be brief because as the Cathaoirleach alluded to, this area has been well covered. Senator McDowell lightly touched upon the definition of a layperson and I seek clarification in this regard. Would somebody who is an academic and has a qualification at bachelor, masters or PhD level in law be regarded as a layperson? Would somebody who is an arbitrator or a mediator with a law degree and practising in that field be regarded as a layperson?
On what Senator Wilson has just said, the definition of a layperson in section 2 is a person who does not hold and never held judicial office, who is not and never has been the Attorney General, DPP, Chief State Solicitor or a law officer and who was not a practising barrister or solicitor in the relevant period specified by subsection 2, that is, 15 years. It is interesting that a layperson, for the purpose of this new body, can include a legal academic, which is very strange. Professors of law and law lecturers can have views about who should be a judge but a practising barrister is disqualified from having this position. We can have legal academics and not simply PhDs and all the rest of it, as Senator Wilson has mentioned.
Some of her colleagues in Trinity College would be laypersons for the purpose of this, and yet would be in a position, curiously, to determine whether other laypersons, being legal academics, should or should not be recommended, which is an oddity in the way the legislation is drafted.
I want to mention one thing to Senator Ruane. I am not filibustering. I am taking reasonable time to address an amendment that she has proposed to the Bill to query whether it is a good idea to attempt to define diversity in the way she has proposed. I make the point that if one looks across the Bill, the term "diversity" appears in a number of sections and, as the Minister said, in a number of different contexts. For instance, the Commission for Public Service Appointments, in selecting people to be lay members of the commission is required to have regard to diversity. It is one thing to say we want a working class person, a middle class person, a Traveller, a person of one gender orientation or people of whatever kind to be sure not to typecast the people being put on the judicial appointments commission, but it is an entirely different idea to state those are the criteria which should be borne in mind when appointing judges.
The point I am making is very simply this. Sections 12, 53, 56 and 7 are cases where "diversity" is used in the Bill, but it is in section 7 that I have raised my objection. The reason I object to it is I do not believe the iteration of particular categories or criteria for diversity that Senator Ruane mentioned is conducive to the selection of a good Judiciary. I much prefer excellence in my Judiciary. I do not care whether the parents of judges were millionaires or paupers. I much prefer to look at the candidate for judicial appointment and ask whether that person will be an excellent judge. That is the question I have in mind.
I will make one comment to the Minister on this, and I am not saying it critically. There are two very different purposes to do what Senator Ruane is asking him to do, which is to set out certain criteria to be borne in mind in determining what diversity is. If it is for the purpose of selecting a cross-section of society for the appointments commission then I have no problem with that idea, but if it is to put on the bench a cross-section of society, I would have a big problem with that idea if it is purely based on the criteria Senator Ruane has mentioned. I really do believe that.
Senator Dolan suggested I played the man rather than the ball and the Minister slightly echoed that in respect of the Minister, Deputy Ross. I am making a very simple point about the Minister, Deputy Ross. It was not I who wrote a book stating our Judiciary was selected on the basis of cronyism. I did not publish a book, a chapter of which states which judges' daughters attended which other judges' sons' weddings.
I will not get sucked into anything. I did not do that. I did not write a chapter of a book suggesting these were the people, the Judiciary, who had wrecked this State, and that they were a group of cronies selected by their crony friends and they had wrecked this State. I never did that. Let it be remembered on the floor of the House that he did do that. One might state in this Chamber that when he came to the negotiating table - where he got himself a position at Cabinet and threw all his friends under the political bus to get there - he forgot the chapter he wrote in his book stating our Judiciary was part of the problem with this country and had wrecked it due to cronyism. If one were then to ask in those circumstances whether it is a reasonable point of view to suggest his determination to have this particular Bill put into law in its particular form is simply based on a reformist view on his part, as are all his fatwas that he would bring down the Government if it were not done - we are to ignore the ridiculous Bill he put before the Dáil when in opposition to have the Opposition choose the Judiciary - I would reply it is not. I am entitled to point these things out because I am entitled to point out no matter how embarrassing it may be for a certain party in the House that the tail is wagging the dog. Everybody in Ireland knows it. We can pretend this is not the case but that is what has happened here
People accuse me of playing the man rather than the ball but I did not write that chapter in a book. Moreover, and this is the important point, before the Minister was ever the Minister with responsibility for justice I did not spend two years vetoing appointments and refusing to fill vacancies in the court system until it almost ground to a complete halt because of my determination to push this through. I did not stamp my foot and attempt to leave Cabinet and threaten my coalition partners at any stage that if-----
I am replying to the proposition that I was playing the man and not the ball. I am saying these are the objective facts; not subjective facts. These are the objective facts and the people of Ireland know this to be the case. We can wallpaper over these cracks all we like, but it is true, as Senators Craughwell and Boyhan have said, that the Minister's colleagues in the Oireachtas know this to be the case.Let us forget that.
The Minister's version of the Bill simply refers to diversity. I did not table an amendment to that as I am content with it. Senator Ruane has asked him to explicate that diversity in particular ways. I am worried about the implication of what she proposes in respect of socioeconomic diversity, as that is pointless. I concede to Senator Ruane that it would not be pointless in respect of the make-up of the lay membership of the JAAB, but it does not make sense to attempt to achieve socioeconomic diversity among the Judiciary because they are all lawyers who have practised or legal academics who have reached a point of seniority. It is a farce to say that they should be socioeconomically diverse.
My second point relates to the exclusion of non-lay members. I want to re-emphasise this point which, in fairness, the Minister has more or less accepted. The amendment we have tabled to remove the words, "and includes the chairperson", from the definition of lay member was simply designed to make any of the lawyers, any of the ex officiomembers and any of the judicial members eligible to be chairman of the commission. It was not designed to say they must be chairman of the commission or that the lay people could not be chairperson of the commission. As I understand the structure of the Bill, the Minister will, in the end, bring a motion before the Dáil to confirm who should be the chairperson and who should be the ordinary members of this commission, based on a Public Appointments Service, PAS, recruitment and recommendatory process. The Minister's amendment, No. 36, will also affect this process. All I am asking is that, when the Minister sits down and takes a look at the PAS's recommendations in terms of lay people-----
-----to be the lay members of this commission - whether they are to be in the majority or the minority - he will be at liberty to choose the best person among them for the job, without reference to whether that person is a lawyer or judge or was within the relevant time period. I will reiterate that it is amazing that a legal academic will be on the inside track to be appointed and will also be considered a lay person for the purposes of this process.
I congratulate Senator Bacik. She did not table an amendment on that. We are not trying to force any solution on the Minister. We are simply saying that, when he surveys what the PAS has come up with, he should look at the entire process, bring his resolution and say that he proposes that a given person should be the chairperson of this commission, having regard to the talents of all the members. He should not be in a position where he would have chosen a particular person but did not because that person had practised law or was a judge in the past 15 years. This definition of lay member including the chairperson also has another life in other sections in respect of the procedures committee of the commission. The committee drafts the criteria, the appointments procedures and all so on. The Bill excludes any lawyer from being a member of that committee.
I am not filibustering at all; I am being serious. I told the Minister on Second Stage that I would not obstruct his Bill and I am not being obstructive of the Bill. However, earlier the Seanad divided on whether the GRECO report should be shown to us before we start on this State or are done with this Bill. The report is in the possession of the Government. The Minister has it and he can show it to us. I have the sinking feeling that a certain person whom I will not mention does not want us to see it and that, as a result, the Government will not make a decision on whether to respond to what was sent to it by GRECO until after all of this is finished. That is an indefensible position.
The Minister says that the Seanad voted to continue today's proceedings earlier this evening. It did, but why is it that I should not see this report? All of us here are reasonable people. Why should any of us have sight of this report withheld from us while we deliberate? Is it because it could not affect our decision or because it should not affect our decision? Is it because the Government considers the report to be mistaken? Is it because it might produce an unfortunate result from the Government's point of view? Why are we being kept away from this report? I accept that the decision was made to press on with Committee Stage today, notwithstanding that we did not see that report, but I ask the Minister to consider that the request to see the report is entirely sincere. If it says something that some people would not like to have published, that is difficult to deal with or that is slightly embarrassing, let us have it out there. Sunshine is the great disinfectant. If we can see what the GRECO criticism has been watered down to after the amendments made in the Dáil and if we can see what it is saying about our system, we can take it into account in how we deal with the votes on the various amendments. Let us also take it into account when we come to Report Stage amendments. Let us see whether we want to accommodate the views of GRECO in what we finally put out of this House as the final version of this Bill. No harm could be done by that, but a lot of good could be done by doing it.
I do not want to use the term "shameful" because the Minister will just dismiss that, but I do want to use the terms "inexplicable" and "unjustifiable". It is inexplicable and unjustifiable that this House should be kept in the dark about a report which was not there in its present form when the other House completed its deliberations. I would like to have somebody explain to me why I cannot see it. I would love to have somebody explain for one minute why it would do damage if all of us in this House were to see the report and to take it into account in our deliberations. I do not believe there is a reasonable excuse for it and that makes me think that there is an unreasonable motivation behind keeping us in the dark on this matter.
First, I agree with my colleague, Senator McDowell, on the issue of the GRECO report. Without going back over the issue in great detail, as somebody who has taken a good deal of care in drafting 20 amendments on Committee Stage, it is frustrating to have had to do so without sight of the report, quite apart from the fact that we do not know whether the Government is taking into account the criticisms purportedly expressed by GRECO in crafting its own amendments. Being unable to see it has certainly hampered us in being able to table amendments of the sort we might have wished to. It is frustrating to know that the report is there but that we are apparently not allowed to see it. We do not even know if Government has seen it and taken it into consideration in its own amendments. Perhaps the Minister will respond on that particular issue since it will be central to the debate and will be an issue that will arise again and again as we go through the Bill. I am disappointed that the Minister is not prepared to accept my amendment. We were seeking to be constructive and to offer greater clarity on the definitions in section 2.We are suggesting a more precise definition should be offered of the term used already in section 2, namely, a person employed in the service of the State. That is the definition offered by the Government for law officer, meaning a person employed in the service of the State where condition for the employment of the person was that he or she was a practising barrister or solicitor. We are proposing to qualify what a person employed in the service of the State should be, that is a member of the Garda Síochána, Defence Forces or a civil servant of the Government or of the State.
Senator McDowell and others have spoken about the oddities and anomalies in the definition provisions as currently drafted. I agree they are full of anomalies and we have not yet got to the internal contradictions with the numbers in section 10. One issue which arises in the definition section is the issue that the definition of "lay person" is further qualified in section 2(2) by a qualification period of 15 years. As my colleague, Senator Humphreys pointed out, that is extremely long and a much longer clause than we would normally see in any employment contract such as a non-competition clause.
I am a legal academic who has practised in the past 15 years. However, it is not for my own personal reasons I am making this point. The 15-year clause is unfeasibly long. I do not see why it needs to be that long in order to qualify as a lay person, particularly given Senator McDowell's point about legal academics who have not practised but who would be capable of being considered to be lay persons. That does not seem right. One might have an eminent law professor who has never practised but who could be considered a lay person. The 15-year requirement seems unnecessary. Why not a five-year or seven-year clause?
There seem to be many contradictions in section 2. We are simply trying to be helpful to clear up some issues about this definition of "law officer" precisely. The concern would be that many persons may be described as being employed in the service of the State in a loose fashion. Is a person employed by the Houses of the Oireachtas or by the HSE employed in the service of the State? We think it is too broad. Accordingly, we have suggested this helpful and constructive qualifying amendment to explain what exactly is meant by a person employed in the service of the State as provided in the definition of law officers.
I have great difficulty proceeding with this debate without sight of the GRECO report. Will the Minister make the report available to us tomorrow morning before we proceed any further? If this Bill is passed, it will be enacted with the Minister's name on it. If the report has anything negative - the Minister admits he and the Cabinet have had sight of it-----
That is not the story we are being told. Is the Minister saying the report is not available to him today? If that is the point, then we should all step back from this and give ourselves time. We do not want to pass a Bill which may be damned once it is passed.
Has the Minister seen the report? Is he prepared to make it available?
I am required to bring that report to the Government. I have not done so. I will do so at the earliest opportunity. I will seek the Government's clearance to have the report published at the earliest opportunity. In the meantime, I am bound by the Seanad vote earlier. It was a debate which took place in my absence. I understand the points raised by Senators. However, I feel when Senator Craughwell sees the report that he will be somewhat disappointed.
I never suggested expressly nor did I in any way imply that any Member of the House was engaged in filibustering, much less Senator McDowell himself. I am quite happy to sit here and listen. I found the debate quite valuable in many respects. I hope I will continue to do so.
The point of the definition of the lay person which includes the chairperson is that the chairperson can only be a lay person. That is back to the original agreement in the programme for Government.
The Bill is drafted to exclude practising lawyers from the lay person concept.
Senator Wilson raised an interesting point and I refer Senators to section 33, wherein it deals with the qualification of certain legal academics for appointment to judicial office. That section distinguishes between experience as a legal academic and experience as a legal practitioner.
Can a legal academic, in some respects, be regarded as a non-legal or lay person? I would be happy to have a look at that. There is the distinction, however, between a legal academic who has not practised law and an experienced legal practitioner who would not qualify for this status as a lay person.
Maybe we should go back and look at this standard. I find it hard to say to somebody they cannot apply for a particular job for 15 years.
Will the Minister answer the direct question? Is the GRECO report in his possession? If so, has he read it?
The Minister just said he had not seen or read the report. However, he has told several Senators they will not be disappointed by it and that it is not ground-breaking.
I am not sure whether he has read extracts or clear definitions.He is in the legal profession and may have given himself a get-out clause somewhere. Perhaps because of my working-class background, I have not phrased this in a proper manner.
The vote on the Order of Business this morning was on our desire to see the report prior to the debate. That did not prohibit the Minister taking it to the Cabinet to allow it to be released here to Senators.
On a note of real caution, the Minister is bringing the legislation through this House and has said clearly he has not read the report that came from GRECO. I am very disappointed that a report by our European partners, a group that is against corruption, has not been read by the Minister, which report would have an influence on his amendments to this legislation. He is asking us to take everything on trust, yet he has not read anything.
I wish to tease out some points. I am somewhat taken aback by what the Minister said because he did caution Senator Craughwell and said he would be a bit disappointed. Rightly or wrongly, he gave the impression — he will have an opportunity to clarify this — that he had sight of, or knowledge of, the report. Did someone else have sight of the report and say he or she had better not give it to the Minister because it is explosive and that he does not need to have it? Did someone say he or she will read it to the Minister, transcribe it for him or give him extracts from it? Was it discussed with the Minister? We need to know.
Did his Secretary General receive this report? Did he bring it to the Minister's attention? Communication seems to have been a bit of a problem in the Department of Justice and Equality historically. I hope there is not another issue, challenge or problem that is going to affect the Minister. Can he tell us whether any official in his Department tipped him off, notified him or told him of the content of, or any sentence in, the report? Can he confirm the day and time it was received in his Department? Did he communicate the content of the report, or part thereof, to the Taoiseach or anybody else?
It is extraordinary that the Minister has said he has not yet seen the report, yet he appears to know what is in it. He is going to be seeking Government clearance to publish it at the earliest opportunity. We are in the middle of Committee Stage in the Seanad, dealing with amendments that are directly pertinent to the critiques in the report, apparently. Some of us have seen what are purported to be bits of the report. Bits have been published in the newspapers but it is utterly unsatisfactory to hear that the Minister has not seen it and that we are expected to legislate in the dark without sight of it and without knowing who has seen it.
I agree with the Senators that we need to know exactly who has seen it and whether anyone who has been drafting the Government amendments has seen it. We must be reassured that there is some good legislative practice going on. There simply does not appear to be good legislative practice. We all know a report by GRECO is available somewhere and that it contains criticisms directly relevant to the current state of the Bill, as the Government has proposed it in the Seanad. Despite this, we are not allowed to see it in the Seanad Chamber. It appears Government members have not seen it either. It is to be published at the earliest opportunity. When will that be? Will it be 18 July, when we have all risen and when the Bill has been rammed through with a guillotine after late-night debates? It is not good law-making.
I believe this was supposed to be about better law-making practice, using the Business Committee in the Dáil and the new politics in the Seanad and the Dáil. I believed we should be legislating in a more collegiate manner. Many of us do want to see reform of the judicial appointments process and we are anxious to see it done in a constructive, efficient and competent manner. It really does not seem to be indicative of good legislative practice, however, to be legislating in the knowledge that there is a report somewhere that we are not allowed to see but which nevertheless contains points that are so relevant to our determination on these amendments.
Clearly The Sunday Business Postsaw some part of this report. It was fairly damning in its view. Clearly, the Minister's Department would not have been happy that such a report would in any way criticise its legislation, or the Minister's legislation. The Minister says he has not seen the report, on which I take him at his word. My colleague, Senator Boyhan, has asked him whether his Secretary General or other departmental staff have seen it. Is there somebody working with GRECO right now to deal with the matters raised in this report? Is the Minister aware of the content in any way, verbally or by memorandum? Is he aware of any members of his Department who are dealing with the Europeans right now on this report to try to minimise the damage to the Bill? We really need to know, before we press on, precisely what we are dealing with.
It appears a committee set up to consider corruption across all the member states is not happy with the Bill. That is what we see in the newspapers but we do not have access to the report. We need to know whether a draft report was sent to the Department. Was that draft report analysed by officials in his Department? Did they engage with GRECO to try to reduce the amount of damage or, as Senator Bacik said, provide amendments to the Bill? If The Sunday Business Postcan get its hands on a draft copy, surely the Department had a draft copy.
The Minister said he is bringing a report to the Cabinet - I would be slow to bring a report I had not seen to anybody - with a view to trying to get it through a Cabinet meeting. Particularly given some of the personalities involved with this Bill, I would want to be fairly sure that what I was bringing would keep them happy. Somewhere along the line, there is a report that The Sunday Business Posthas seen and that the Minister has not seen. We are expected to agree legislation that the report criticises. We are all thrashing around in the dark. I find it quite surprising that the Minister's officials would allow him in here on Committee Stage of a Bill on which there is a damning report that he has not seen and of which somebody somewhere is aware. We need to know before we progress any further the current state of play.
May I stop the Senator for a second? With all due respect to the Minister, we had a vote on the GRECO report today on the Order of Business, and another could be taken tomorrow. I do not want the GRECO report to become a central axis of amendments Nos. 3, 4 and 5, under section 2. It is not the case.
Not necessarily. A vote was taken today. The House divided on a number of occasions. The vote was on whether we should proceed. I cannot undo that vote. I do not mind the making of a reference to the GRECO report but it should not dominate the debate on the three amendments at this stage. Tomorrow is another day and-----
With all due respect to the Cathaoirleach, I fully appreciate where he is coming from. The House divided today and indicated we should proceed with this Bill. I do not believe the House was as aware of the lack of information surrounding the GRECO report as it is now. I believe that if all Members of the House were sitting here right now and were asked about this, they would vote differently.
With all due respect, the Minister will not be here while a vote is taken tomorrow on the Order of Business. He is the man on the ground with respect to the report. It behoves every Member here to establish exactly what is in this report before we allow-----
Could the Minister give us a guarantee that nothing in the GRECO report will have a negative impact on the Bill? It is a simple question. I am sorry for coming back to the definition of "lay person" and the associated question of who is regarded as a legal practitioner. Could somebody who has a legal qualification and is practising on a daily basis as an arbitrator or mediator in our courts, but is not a solicitor or barrister, be regarded as a lay person under this Bill and therefore be eligible, if appointed to this commission, to be its chairperson? I would like clarification on that.
All Senators had a reasonable expectation that some of the Minister's amendments would have been influenced by the GRECO report. We now know that the Minister has not received the report. Therefore, he has not read it and has not been influenced by it. I think that is quite worrying. I ask the Senators who took a particular position when the House voted on this matter earlier today to consider what position they will take tomorrow. I am really worried. If the Minister has not read a European report that mainly deals with corruption, I think he could be negligent in how he has dealt with this. A good Judiciary, as we have had since the foundation of our State, is important as a criterion for foreign direct investment. The Minister claims not to have read this negative report, but he was able to tell Senator Craughwell that there are no earthquakes in it. Many of us are tired because it is 10.30 p.m., but many of us are also worried about the amendments to this Bill. Senator Wilson has articulated some of the fears that exist in this regard. I think the Minister has a lot of thinking to do overnight. I urge him to get a hold of the report immediately so he can read it, at least.
Does the Minister think he might be in a position to give a commitment that the report will be published before this Bill moves from Committee Stage to Report Stage? I know this would not satisfy most people, but we need to have a timeline. We certainly cannot move to Report Stage without having read it. I know we are nowhere near Report Stage.
I will be brief. Senator Higgins is ignoring the huge difference between Committee Stage and Report Stage. Senators can speak just once on amendments that are proposed on Report Stage, and that is the end of the matter. The time for us to look at criticisms of this legislation by GRECO, if there are such criticisms, is on Committee Stage.
We have made some progress on this Bill this evening, although less than I would have liked. I think we should see the GRECO report before we make any further progress with this Bill. The Minister seems to be sufficiently clued into the contents of this report - or draft report, as the case may be - to be in a position to tell Senator Craughwell he will be disappointed by its contents.
In light of the debate that is taking place, I propose that this House should adjourn until tomorrow morning. This would give all Members an opportunity to inform themselves regarding what has happened here this evening before revisiting this matter on tomorrow's Order of Business. I do not see the point in progressing-----
This is the most serious matter. As my colleague, Senator Humphreys, said some time ago, we expected that the amendments proposed in this Bill had been introduced in light of the GRECO report. We have heard tonight that the Minister has not read the report.
Perhaps he did, but that is not the point. We are talking about passing legislation to appoint people to the courts of our land. This is the most important legislation. A dog's dinner has been made of it since the day it started. I believe it is wrong and disingenuous of us to go any further. I ask the Deputy Leader, who is in the Chamber, to adjourn the House until the Order of Business tomorrow morning.
The GRECO process is ongoing with our colleagues in GRECO and the Council of Europe. There has been engagement between officials in my Department and GRECO. It is an ongoing process. A finding in last year's draft GRECO compliance report was critical of the manner in which our judicial appointments take place. Ireland was given an opportunity to comment and we engaged with GRECO in that regard. GRECO made specific and particular reference to the absence of members of the Judiciary on the appointments commission, on foot of which I successfully brought an amendment through the Dáil to allow for representation on the commission of the presidents of all the courts. That was one of the points mentioned in the draft GRECO report. I am not at liberty to publish the report without the assent of the Government. As I said earlier, I intend to seek the assent of the Government to the publication of the report at the earliest opportunity.
I cannot pre-empt what Government will say. What I can say is that we embarked earlier this evening on a process involving 112 amendments. We are on amendment No. 3 because amendments Nos. 1 and 2 were ruled out of order. To suggest the absence of the GRECO report is in some way impacting on the debate so far is neither true nor accurate, because we are on amendment No. 3.
I did not make any reference to anybody engaging in filibustering. I am happy to sit here all night and listen to Senators, but in a way that I hope can ensure we have a form of constructive engagement. Yes, I hope that Senators would see the report at the earliest opportunity. I do not want to assume what Cabinet will do, but it would be my hope we would be in a position to have sight of this report. I will not comment on what was in a Sunday newspaper or otherwise, but I would like the report to be published in its entirety, if it is to be published, and the Senators would have the opportunity to look at it. I do not know of any report, published or unpublished, that is impacting on amendments Nos. 2 or 3, which we have not been in a position to process.
I have a copy of what purports to be three pages of the GRECO report in my hand, and it seems to be very up to date. Paragraph 35 of it states that GRECO has significant concerns about the composition of an appointments commission as proposed in the judicial appointments Bill, as amended, on 31 May 2018, which would place judges in a clear minority position in favour of a strong lay representation, including the chairperson, accountable to Parliament and that this move is not in line with European standards which, in situations where final judicial appointments are taken by the Executive, calls for an independent authority drawn in substantial part from the Judiciary to be authorised to make recommendations or opinions prior to such appointments.
Paragraph 36 states that GRECO urges the authorities to reconsider this matter in order to limit potential risks of improper influence from the Executive or political power over the appointment process to the Judiciary, or any perception thereof, and to do so in close co-operation with the judicial authorities. It appears to be an up-to-date excerpt from an up-to-date report. I am happy to hand it to the Minister. We cannot say it is not relevant to Committee Stage. It is relevant to the amendments we are trying to draft to be helpful, and it should be relevant to the amendments the Government is drafting, and that we are supposed to be debating. It is not good enough to say it will be published at the earliest opportunity. Clearly, if newspapers have got hold of some of the report, and if there is a report out there, we should have got it, in advance at least of Committee Stage, so we could assist in drafting amendments. We would clearly have got a lot further in Committee Stage had we had sight of the GRECO report in advance of it. We are expected to finish Committee Stage apparently tomorrow night and go to Report Stage next week, only on the basis of a vague assurance that the report will be published as soon as possible, when we know the report is there and has expressed some very strong criticisms of a process which it says is not in line with European standards, as of 31 May 2018.
Senator Bacik, along with all Senators, will be well aware that the Government makes decisions on these issues in accordance with our Constitution, not in accordance with any other body of laws on the international stage. No other authority decides who we recommend for judicial appointment. This is the sole function of Government. That is not changing under this Bill in draft form or otherwise. The Government must operate within that basic point at all stages. Irrespective of what is in the piece of paper in Senator Bacik's hand, that does not change. We operate our own laws under our own Constitution and, in fact, a reading of this Bill now, as compared to in its original form, will show it increases the independence of the Judiciary, rather than reducing it. I refer to the inclusion of all judicial promotions, currently done outside of the appointments board process; the statement that all appointments will be on merit, which is what we have discussed for the past number of hours here; and the professionalisation of the judicial selection process. I do not see anything in what any of the Senators said that precludes us from proceeding with the debate this evening until 11.15 p.m., which is the order of the House, and proceeding with the amendments tomorrow. I intend to bring the report to Government at the earliest opportunity, which is Thursday. We are not having a constitutional referendum to change the constitutional position on the appointments of judges. I am not sure what Senators want.
There are a number of Senators wishing to come in. I would like to make a brief observation, and I am trying to be fair as Cathaoirleach. I can see this GRECO report impacting on every amendment from here to the 111th one, or whatever it is, and being a stumbling block. The Minister will be aware we will have the same circular arguments for the next day or two.
In the light of what Senator Bacik just read out, I ask we adjourn the House. We cannot proceed with this legislation, given there is a report that is damning of the legislation. Unless the Minister is right, and when we get our hands on the report, I will be sorely disappointed, in which case I will come in here and prostrate myself on the floor in front of the Minister and apologise.
Let us put it this way. The Minister sought to allay fears on the basis the Government acts in line with the Constitution, and that nothing in the GRECO report or otherwise will interfere with that. This is not the point.
The point is there is a very significant change in public policy going on with this legislation. In the belief of Senators here, a very important body issued very troubling recommendations against this new direction in public policy. I cannot think of any other situation. Let us say there was some legislation dealing with the workings of the Garda Síochána, and let us say there was a report that we knew of that was on a civil servant's desk somewhere, and that it was not clear how much sight of that there was. The Minister comes in here like, dare I say it, Archbishop McQuaid after the Second Vatican Council saying not to worry, that there is nothing in this to disturb the tranquility of our Christian lives and that there is no change.It is simply not acceptable in a modern democracy that the Government would have a report recommending strongly against a particular direction being taken by proposed legislation, that the Minister says there is nothing to worry about in the report but he would not have read it himself. We are being asked to go ahead and vote for this legislation despite the report potentially condemning what is being legislated for. The Minister is a decent guy but with respect, his best answer is that he cannot move on this until Thursday because for a magic reason he cannot get authorisation from the Cabinet to issue the report until then.
We are the second Chamber of the Oireachtas. It seems that the Minister has a credibility problem with what he is proposing because an important body - not just a Ballygobackwards organisation but a significant and important body within the architecture of the Council of Europe - has said it has concerns about it. Senator Bacik has read an excerpt from the report but the Minister is not even in a position to confirm whether it is authentic. I cannot think of a precedent for this kind of exchange in these Houses. Will the Minister get on the phone to his Taoiseach or whoever makes the decisions for the Cabinet or secretary of the Government? Will he ask what we do in ad hoc positions where we need quick decisions from the Government?
Yes. It happened during the bail-out process that certain Green Party members were woken up and there were all sorts of events in trying to get hold of some Cabinet members. Gardaí had to be sent around to knock on doors and people were ringing them and trying to find mobile phones. They were shouting down the chimney at them. We must do whatever it takes.
All we are asking is for the Government to move swiftly to allay concerns. We may speak of new politics and the previous Taoiseach from Fine Gael spoke about government from behind a pane of glass, meaning there would be transparency. Senator Marie-Louise O'Donnell, not generally an opponent of the Government, today spoke about "clear water". This all points to basic transparency and respect for the people in this House, who must do their job of scrutinising legislation properly.
We are not suggesting for a moment that if this legislation passes, it will be unconstitutional. If Senator McDowell contradicts me, I will have to take it as he is the more senior man. However, that is not the point. The point is if this legislation passes, it will be bad public policy and set a bad precedent in terms of our need to protect an independent Judiciary. Senator Craughwell is right and we should withdraw from debate at this point until the Minister can get a decision from the Government to publish this report, whether it is relevant or not. The perception now matters as to whether there is something damning in the report, whatever about the content. On the face of it, the legislation must be seen to be unproblematic. It is not the current position and there is a confidence problem with the legislation.
Nobody expects the Minister to speak for the Government right now. He could speak to his own intentions, which are that he will seek clarification on whether we can get an early decision from the Government about the publication of this report. I am not asking for something unrealistic and neither are my colleagues. Will the Minister start from the point that there must be a shift of paradigm? It is about accepting there is a credibility problem and we need clarity. It is not as though the report has not issued, as it is somewhere in the corridors of power. The second Chamber, the Upper House, is entitled to know what is in the report, even if the Minister has not yet read it. It is hard to expect us to believe that nobody in the corridors of power knows the content of the report. Right now there is an information gap and it is in the Minister's interest, taking account of the kind of politics he wishes to promote, and in our interests as a Legislature seeking to scrutinise legislation properly, that we would have all the information at our disposal. It is about making our best judgment on this legislation with the fullest possible access to the facts.
I will be as quick as possible. I have a level of sympathy for the Minister in trying to defend the process in which he clearly does not believe. He has been compared to Archbishop McQuaid but he reminds me of the Maroon 5 band in that insufferable World Cup advertisement, which sings "Don't worry about a thing. Every little thing is going to be all right". If the Minister was part of the Opposition he would rail against this process. If Sinn Féin had not been bought off, it would rail against this process as well.
This is a circus and it is really embarrassing. I am glad the journalists have all gone home. A reputable European body has issued a report stinging in its critique of this legislation. It is only in front of us because the Fr. Ted alliance feels strongly about it. There are bits of this report in Sunday newspapers and in front of me. The Minister has said he has not seen it but again he says not to worry about a thing. With the greatest of respect, if the Minister is going to ask the Cabinet to publish the report on Thursday, could we not just halt everything until then?
We could then have a much more informed debate. The Minister will be able to go back to the Minister for Transport, Tourism and Sport, who clearly feels very strongly about this and who I half-expected to be sitting in that chair instead of Deputy Flanagan when I came in this evening-----
Let us do this properly. If the Minister was part of the Opposition, along with the Fine Gael representatives, it is just the kind of exercise that they would rail against. This is important legislation being railroaded through despite eminent European bodies raising serious questions about it. Fine Gael is meant to be the party of law and order so let us do this properly.
I have a certain grudging sympathy for the Minister, who has been pretty good-humoured during this debate. He has been, to me at least, a little contradictory nonetheless. He has said the report is irrelevant as we have our Constitution. That implies he will ignore the report. If he indicates it has no relevance and we are not bound by it or beholden to anybody outside Ireland-----
It is what we are doing but the Minister cannot do it because he has not come across those views yet. The Minister has indicated we are more or less going to ignore the GRECO report but he has also said he is discussions with the body. That is a clear contradiction. One cannot ignore it on one hand and be involved in discussions at the same time. I say to my colleagues in Sinn Féin that it is about time they reconsider this matter.
Good. That is excellent. We will see what happens tomorrow morning. One can call this filibustering or whatever one likes but this House will be extremely reluctant to pass a Bill of this nature. Why should it do so? We are discussing very serious legislation regarding appointments to the Judiciary and information is being deliberately withheld that is germane to the discussion to the principal items of the legislation. It is astonishing. I am quite certain we will rehash this again and again. If the Minister is going to raise this in Cabinet on Thursday and get a response then, why not suspend discussion until we have the agreement of the Cabinet and the report is published so it can be taken into account in these discussions?