Wednesday, 4 July 2018
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
We are on to amendment No. 8, in the name of Senator Ó Donnghaile. Amendments Nos. 8 to 12, inclusive, and Nos. 80 to 83, inclusive, are related. Amendments Nos. 9 to 12, inclusive, are logical alternatives to amendment No. 8. Amendment No. 82 is a physical alternative to amendment No. 81. Amendments Nos. 8 to 12, inclusive, and Nos. 80 to 83, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 8:
In page 9, between lines 26 and 27, to insert the following:“Recommendations to be based on merit
7. (1) No person shall be recommended, under this Act, for appointment to judicial office unless they are of sufficient merit to discharge with distinction the responsibilities of the office to which they are appointed (the “Merit Principle”).
(2) Subject always to the Merit Principle described in subsection (1), recommendations of persons for appointment to judicial office under this Act shall have regard to the“Diversity Principle”—(3) Recommendations of persons to judicial office shall have regard to the objective that, consistent with the written statement most recently provided under section 53(7) to the Procedures Committee concerning the needs of the users of the courts in that regard, the membership of the judiciary should include persons with a proficiency in the Irish language.
(a) the objective that membership of the judiciary should comprise equal numbers of men and women, and
(b) the objective that the membership of the judiciary should reflect the diversity within the population as a whole.
(4) Subject always to the Merit Principle described in subsection (1), a list of persons recommended for appointment to judicial office under this Act shall include at least one person whose appointment would further the objectives of the Diversity Principle described in subsection (2).”.
The amendment is pretty self-explanatory. It touches on a lot of the issues we have spoken about at great length up until this point on diversity and respect for merit, ability and capability. The amendment strikes a happy balance between both given the concerns expressed previously. It seeks to introduce greater diversity to the Judiciary. It would not only benefit the Judiciary but also the people who find themselves before the Judiciary. On previous Stages in the other House, my colleagues in Fianna Fáil did not oppose this amendment. It goes some way to tidying up the Bill. It is also a good way to build a bridge between the concerns expressed by both views on the issue of merit, experience, diversity and trying to be inclusive. One of the great aspects of the amendment, and something which has not been reflected in the debate up until this point, is the requirement of knowledge of an Gaeilge within the Judiciary. It is constitutionally, politically and societally important that we acknowledge it and include it in the Bill. Sin mo mhéid.
My amendments are in this grouping. I support Senator Ó Donnghaile's amendment. I will speak to amendment No. 11 first. I welcome much of section 7, particularly that judicial appointments are to be made based on merit and that gender equality will be a key objective. However, feasibility and practicality should not be a consideration when setting out aims, especially in terms of diversity. That is what the amendment intends to change. The gender equality objective does not have a provision attached to it that it be feasible but the diversity objective does. It is a key strength of the Bill. At this early stage, when the general principles and objectives of the process are being set out, why should such an important aim be given such a huge qualification and watered down so much? As neither the aim that judicial appointments are to be made on merit nor the objective of gender equality is given a massive qualification, why should we attach one for diversity? We recognise that the objectives are possible and we should be striving for them. The Bill should reflect this. The phrasing comes up twice more in the Bill in section 12 in respect of laypersons and section 53 in respect of judicial appointments and in those instances does not have this massive qualification attached which weakens it so much. The purpose of the amendment is to align with its usage elsewhere in the Bill and to be uniform and consistent. I hope the Minister can accept the amendment.
Amendments Nos. 81 and 83, which are also in this grouping, propose to remove character, temperament and health as grounds that have to be satisfied before the commission can recommend a name to the Minister. These grounds are important for new judges but I am concerned by the meaning of their inclusion here and how they will fit into the process. Could a health ground be invoked against a candidate simple because he or she is older or has a visible or invisible disability? Could character or temperament become problematic in the context of someone who has minor mental health issues or any mental health issue? How do we inquire about someone's temperament and character? Earlier in the debate Senator McDowell spoke about asking questions about socioeconomic background or other qualifying factors but how does one assess someone's character and temperament in an interview? Will it be based on previous court hearings or how one is as a solicitor? How exactly is that determined? Apart from temperament and character, I do not understand why health would be included as a ground. It should be taken out as it could be used in a discriminatory manner. I would like these grounds to be removed from the Bill and the Minister to come back on Report Stage with grounds that better reference the sort of attributes we are referring to here and which would be grounded in accountability and verifiable factors rather than broad, vague terms as it is drafted at present. Competences and ability better reflect what we are looking for rather than temperament and health.
I will indicate very briefly where I stand on these amendments. On amendment No. 8, I prefer the present wording of section 7 to the proposed wording of the new section. I do not believe that the juxtaposing of the merit principle and the diversity principle will assist at all. It would create confusion. Senator Ó Donnghaile's proposed section 7(1) would seriously dilute the idea of being selected on merit.It would be of sufficient merit to discharge with distinction the responsibilities of the office to which the person is appointed. It does not suggest the best person will get the job. There is a kind of a threshold of merit, after which it becomes a diversity principle, so I am not in favour of that.
I have decided amendment No. 9, which is related to amendment No. 12, should not be moved. I will adhere to amendment No. 10 to remove the word "based" and put in "solely". I do not agree with amendment No. 11, which is Senator Ruane's amendment. The qualification is necessary in all the circumstances.
Amendment No. 8, in the name of Senator Ó Donnghaile, proposes to insert a new section in place of the current section 7. The Senator will be aware it is similar to an amendment discussed at some length already at the Dáil committee which was ultimately withdrawn by the Senator's colleague. It was well flagged in the Dáil that the matter would be submitted in an updated form to take account of the newer element in the section relating to proficiency in the Irish language, which was added on Committee Stage. I refer here to the committee amendment that introduced the objective of Irish language proficiency. I am not amenable to accepting this amendment.
Subsection (1) of the proposed replacement section 7 states that, "No person shall be recommended, under this Act, for appointment to judicial office unless they are of sufficient merit to discharge with distinction the responsibilities of the office to which they are appointed (the 'Merit Principle')". Subsection (2) of the proposed new section has the effect of benchmarking that merit-based recommendation against the objectives of an equality of men and women in the membership of the Judiciary, and diversity among the membership of the Judiciary. These objectives are denoted by reference to the diversity principle. Subsection (3) stipulates that a list of persons recommended for appointment to office must include at least one person whose appointment would further the objectives of the diversity principle.
I am a bit concerned the Bill would mandate the hand of the commission to select in such a direct and specific mode. In fact, I am more than concerned. My concern is such that I am against it. Senators will know there are a number of elements to how the Bill addresses the issue of gender equality and the broader issue of population diversity. Under section 7 itself, subject to decisions being based on merit, the concerns around gender balance and diversity in the membership of the Judiciary are very clearly brought to the forefront by way of the requirement that they must be regarded where the function of selecting and recommending persons for appointment to office falls to be performed. The word "must" is important here.
Gender equality and diversity feature elsewhere throughout the Bill. Section 12(4), which was also amended on Committee Stage, mirrors the section 7 provision which requires PAS to apply gender equality and population diversity objectives when selecting lay persons, that is, non-legal persons, for appointment to the commission. Section 12(6) provides that one area where knowledge and experience is to be to the fore in the selection of lay members is with respect to human rights, equality or issues concerning diversity among members of society. The Bill signals the critical importance of taking account of that perspective in appointing lay members to the commission. Section 53(5) requires that, in the preparation of the statements of selection procedures, regard will be had for, among other things, the two objectives of gender equality and population diversity. Therefore, there is a direct correlation between the objectives set out in section 7 and the requirement of the commission to cater for this in its published statements. Under the review process provided for under section 56, the procedures committee, which was mentioned earlier, must monitor "the diversity among candidates for judicial appointment", on review of the implementation of the Act. The committee must report its finding to the commission, and any recommendations it may have in this particular area. The commission will in turn report to the Minister in this matter. In the context of the review, it probably will be a role and function for the appropriate parliamentary committee.
I am satisfied the Bill already addresses what the Senator intends to achieve by his amendment. I am not inclined to support the amendment.
I do not wish to enter into any competition between the Houses. I say this only following the provocation on the part of Senator Ó Donnghaile but if one looks at the Report Stage amendments in the Dáil, one will see Senator Ó Donnghaile's party opposed more Government amendments, and voted for more Opposition amendments, than any form of support for Government on either side. Hence, he is right, there is no deal.
If there is a deal, which there is not, it is quite a bad deal in any event given what the Senator is experiencing from me now.
Amendment No. 10 in the name of Senator McDowell would have the effect of adjusting the reference in section 7(1) that a decision to recommend a person for appointment to judicial office shall be based on merit alone. In amendment No. 11, Senator Ruane wishes to remove the term "to the extent feasible and practicable" from section 7(2)(b). We discussed these issues under amendment No. 3 earlier. Section 7, on making the recommendation on merit, states that 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 a whole. I am not sure the specific term takes away anything from the objective of what the commission must have regard to. I do not share the Senator's concern, and I am not prepared to accept the amendment on that basis. I do not agree that the term detracts from the objective of the commission. I will deal with amendments Nos. 80 to 83, inclusive. Is Senator McDowell moving amendment No. 80?
The amendment seeks to amend section 36, which deals with the recommendation of names to the Minister and further conditions to be satisfied by adding, without prejudice, to section 7 in the context of the prohibition on the commission recommending names unless the appropriate competence and probity of other conditions are satisfied. I am not inclined to accept it and it does not add anything to what is at issue here. Shall I deal with amendment No. 81?
Perhaps a little unusually, I am not greatly distressed by the Government's phraseology in this section as it seems to be perfectly reasonable. There are four cardinal points, with the first being that appointments should be made on merit. The next objective would be that there would be an equality of men and women. The third point is that diversity should be reflected and the final very important issue is that some members of the Judiciary should have a competence in the Irish language. I think about the trial that Mr. James Joyce wrote about of Mr. Michael Joyce on the Aran Islands where there was a grotesque miscarriage of justice because the unfortunate islander could not understand English. He was not properly represented and it was an appalling case. I doubt anything like that could occur-----
It certainly did and the Minister is right in that respect. I was thinking of context and it is the most extreme example I can think of where injustice was created because somebody could not have their case heard in the Irish language. If we want to encourage the Irish language, it is important to pay due respect to it. I am not saying all judges must speak Irish, as that would go a bit far. It is right that members of the Judiciary should include persons with a proficiency in the Irish language. The four grounds are perfectly reasonable and I am satisfied with them. I have not been persuaded by the arguments of my colleagues.
I will speak briefly to amendments Nos. 82 and 83. There may a drafting error in one of the amendments. I do not know if it came from my office or if it happened along the way. My key concern was the issue of health, as it is inappropriate that there be health tests for those being considered for the Judiciary. It is something not done in many other areas and the danger is this could potentially be deeply prejudicial, for example, to those who may have a disability or an ongoing illness. People would not necessarily be coming into a role where physical health will be tested. We certainly do not want a position where the comparative health of candidates would be a key or adjudicating factor in consideration for an appointment.
Amendments Nos. 82 and 83 are complementary and I now see they were separated by the Bills Office. Amendment No. 83 deals with the deletion of the requirement to effectively prove a bill of health. It is not appropriate that candidates for office should, for example, have to produce medical certificates or other information. As we have discussed, this is a special category of information and falls under the General Data Protection Regulation, GDPR, as such. The information should only be sought in very specific circumstances where there is real public interest and other concerns.
As a potential alternative, in amendment No. 82 we have suggested the addition of the phrase "and capacity". The original intention in the drafting of the Bill was to get at the question of capacity and whether the person would be present for meetings, be in courts and deliver on requirements. Past proven competence is importance but current capacity is also important. I suggest that capacity may be a better way to get at whatever the original intent was with "in respect of the health" of candidates. However, I would also be happy to decide to delete the text and leave it as is in terms of character and temperament. I feel very strongly about amendment No. 83 and it is very important. It is extremely inappropriate for us to set such health criteria. The Minister understands the sensitivity around such information.
I know my colleague, Senator Dolan, is not able to be here but he also feels strongly about the health issue and that it should not become a de facto disadvantage if somebody has chronic or ongoing health concerns that are managed. Perhaps they are managed well enough to deliver on their role. Amendment No. 83 is a priority for me and it is very important. Amendment No. 82 is perhaps a suggestion that the Government may choose to accept to get what was hoped for in the original line on health.
I suspect the Minister knows but I did not mean to be in any way provocative with my earlier point. It was to give him an opening. I have heard the Minister's comments on my amendment. The objective is for the Judiciary to have greater diversity and reflect the diversity of the population as a whole. My amendment would make that a firm principal subject with respect to merit. It enhances the Bill and strengthens the commitment.
I will come back to the term "feasible and practicable". Section 7(2)(a) states, "the objective that the membership of the judiciary should comprise equal numbers of men and women,". When we set out an objective, it is what we aim for. It is a vision or a mission. It is not that it must happen. When it comes to the mix of men and women, there is an indication of an objective but we do not include the term "feasible and practicable". Neither is it done in section 7(2)(c), which states, "the objective that, consistent with the written statement most recently provided under section 53(7) to the Procedures Committee concerning the needs of the users of the courts in that regard, the membership of the judiciary should include
persons with a proficiency in the Irish language." It does not have a clause to dilute the meaning. Three of those paragraphs outline objectives and what we would like to aim for. The only paragraph with a diluting clause is the one concerning diversity. The Minister for Transport, Tourism and Sport, Deputy Ross, has spoken about increasing diversity with the Bill but this is the only element being watered down. How can it be justified that the others are not diluted but this one is?Why is the language in paragraph (b) different from that in paragraphs (a) and (c)? It does not really make sense.
The Bill does not provide that somebody should be disbarred because for health reasons. It merely mentions health as a factor to be taken into account. I remember during the Sallins mail train case, the counsel for the defendants alleged that the judge was asleep but it turned out that he was dead. That was a pretty good example.
I think Senator Ruane has made a very good argument in favour of deleting the word "feasible" from section 7(2)(b). If it is not included in the other paragraphs, why should it be included in this one? I will support her amendment on the basis of her very good argument.
I am rather sorry that Senator McDowell intends to withdraw amendment No. 12. As I read it, the amendment would completely subvert the lay composition of the commission. The amendment proposes to prohibit lay members of the commission from taking part in any assessment of an applicant’s "knowledge of the law, skills and competence in the interpretation and application of the law, or ability to exercise functions as holders of judicial office". I think it is a great amendment because if it were accepted, there would be nothing left for the lay members to do. I would certainly push it, but of course I am not Senator McDowell and I am not privy to his reasons for withdrawing it.
I should mention to Senator Norris, to satisfy his curiosity, that I believe all members of the commission should be equal in the discharge of their functions. On reflection, I do not think it is really a good idea to disable some of them from making particular decisions on the basis of their status as laypersons. During our consideration of these amendments, we have yet to come to the question of whether those laypersons should be in a majority or a minority on the commission. I expressed doubts earlier about the kind of person who would want to be on this commission in general. If the amendment in question were agreed, I think the lay members would be on the commission in a token role. Having reflected on the matter and having spoken to Senator Boyhan about it, I do not think it is a good idea to have a two-tier membership. That is why I intend to withdraw the amendment.
Before I speak about amendments Nos. 81 to 83, inclusive, I would like to respond to the point made by Senator Ruane about the inclusion in section 7(2) of this Bill of the words "to the extent feasible and practicable". There is no ulterior motive here. This clause has been inserted in section 7(2) as a safeguard to cover circumstances in which the commission might be prevented from taking a certain course of action by a perception of rigidity in some absolute or absurd obligation to have regard to diversity. I am talking about unusual circumstances, clearly not intended by the Bill, in which a right or entitlement on the part of a disaffected candidate might be created by relying on a diversity ground where there would not be a real claim. The words "feasible and practicable" have not been inserted to provide an out, or to reduce what will be an obligation in the same manner and means as the gender obligation and the other obligations.
I mentioned earlier that 16 judicial appointments have been made so far this year. I should mention in the context of our discussion about gender balance that nine of them were men and seven of them were women. I assure the House that this is a most important consideration in the context of the Government's obligations in respect of appointments. I do not recall circumstances - over recent years or indeed ever - in which this principle has been applied in the manner in which it is being applied now, where we almost have a 50:50 split. I intend to ensure the existing gap is closed and we reach 50:50. It is absolutely essential for the fact that most entrants to both branches of the profession are now women to be reflected in the appointments to the Judiciary and in the membership of the Law Society and the Bar. The appointments we have seen in recent times are very reflective of that. This pattern will continue to ensure we reach equality at a very early stage. I can say to Senator Ruane that the words "feasible and practicable" have been inserted to cover circumstances in which there might be an over-reliance on what could be regarded as rigid wording or a rigid obligation. It is by no means the case that they will restrict or weaken this obligation in any way.
In amendment No. 81, Senator Ruane is seeking to delete section 36(1)(b), which proposes that one of the conditions to be satisfied when a person is being recommended should be that the person in question is "is suitable on grounds of character and temperament". Amendment No. 82 seeks to amend section 36 of the Bill, the overall purpose of which is to set down some matters concerning a candidate to which the commission must have regard before it chooses to recommend that person for appointment to office. These matters relate in general to the characteristics and suitability of the person concerned. One of these matters, as set out in section 36(1)(b), is the stipulation that the person must be "suitable on grounds of character and temperament". Amendment No. 81 would delete section 36(1)(b), whereas amendment No. 82 seeks to replace it with a new subsection, which refers to being "suitable on grounds of character, temperament and capacity". Amendment No. 83 seeks to delete the next suitability ground in section 36(1)(c), which is that the person being recommended must be "suitable on grounds of health".
The reference to suitability on grounds of character and temperament is a time-honoured formula and is not new. It was originally contained in the Courts and Court Officers Act 1995, under which the present board of the Judicial Appointments Advisory Board was established. The purpose of section 36 of the Bill is to ensure the commission has regard to the suitability of a person in terms of his or her general disposition. I do not disagree with what Senator McDowell said when he referred to this earlier. It is a question of assessing whether a candidate for recommendation has a character and temperament, including personal traits and behaviours, that is suitable when considered in the context of what is often required of judges in the pressure-cooker of a court. Judges must handle in appropriate ways the situations in which people find themselves.Judges must ensure that they have a level of temperament and disposition that allows them to serve the best interests of people.
The suitability requirement reflects the fact that the administration of justice is not only about the law but about the many different types of people involved. Sometimes, as we all know, these are the most vulnerable people. Again, this is something I am really keen to ensure is encouraged and acknowledged in the administration of justice.
Earlier I mentioned the courthouse estate plan. It seeks to ensure that the surrounds of the court are particularly appropriate and suitable for vulnerable witnesses, vulnerable complainants and for children. Life-changing decisions are made on a daily basis in our courts. People often only attend court on very few occasions in the course of their lives and often times, that one occasion can be life-changing, in terms of experience. The administration of justice is not about lawyers and judges; it is about the people who are served. I believe there is a common understanding and appreciation of what is meant when we refer to the suitability of a person's character or temperament with regard to a particular role or job. As I see no basis for dropping this long-standing, accepted and, dare I say, minimalist conditionality, I am not agreeing with amendment No. 81.
In addition, to add the notion of capacity into this mix has the potential to confuse matters in an unintended way. The issue of capacity could relate to a person's intellectual capacity or skills capacity in respect of his or her understanding of the law or a capacity to handle the difficult and demanding situations that occur on a daily basis in courts and courtrooms. On the other hand, it could also refer to a mental or decision-making capacity, which is about something completely different. It may be seen as asking the commission to assess whether a person's mental capacity might be in some way impaired. In fact, as Members will know, Article 35.4.1° of the Constitution, which is the article that governs the circumstances under which a judge may be removed from office following resolutions of the Houses, refers to one of the grounds for such removal as "incapacity". The question of the capacity of a judge, in terms of his or her mental or decision-making capacity, is comprehended among other aspects of health but within the concept of his or her suitability on grounds of health, as provided for in section 36(1)(c) of the Bill. I am not inclined to add the concept of capacity, as proposed in amendment No. 82. I think it will be less than certain and if it is less than certain, it will be open to confusion. We do not want confusion, having regard to the original purpose of character and temperament. If we confuse the original purpose by an add-on then I think we would make things really difficult for the new commission. Therefore, I am not inclined to accept the amendment.
As for the health question posed by Senator Higgins, in 1983 the condition of suitability on grounds of health arose to some degree out of the experience of the Judicial Appointments Advisory Board over the years. I draw on Senator McDowell's experience in this regard, which is greater than mine in terms of dealing with the appointments board. It is fair to say that from time to time, the board has made the point that one of the conditions in the area of judicial appointment should be the health of the candidate and the suitability of the person for the job, as it were, having regard to the issue of health. I listened closely to the submission made by Senator Higgins but this provision is certainly not designed with any intention of being exclusive. It is not intended to introduce new obstacles or barriers or, indeed, in any way militate against an otherwise suitable candidate. In that regard it is not an unusual requirement to have regard to, in the context of any interview for any position. I think it is a standard enough guide and I am not minded to support the deletion of this matter from the Bill.
I revert to the original point on diversity. The Minister used the word "obligation". I do not think that objectives are obligations. Objectives set out what we would like to achieve in the best-case scenario of us fully executing and implementing this Bill in the way it is supposed to be, which is to increase diversity. I do not see how the suggestion that the provision would be rigid or would involve an over-reliance can only be in respect of diversity. Let us consider the Irish language. It would be a little easier to increase the diversity of candidates than have an over-reliance on judges or laypersons with the Irish language. The answer the Minister gave me was insufficient. If this was a single objective then I would say, "Yes, fair enough". If the other two objectives also included that clause, then the provision would make sense.
I am dissatisfied with the answer given by the Minister with regard to the health ground. It is completely inappropriate to include health in the provision. The term "health" is an extremely holistic word. The provision does not only require people to be in good health. When people consider a person's health, they assess whether the candidate has a disability. For example, a person may have lost his or her hearing or be partially deaf and need to use sign language or he or she may have issues with his or her sight. Another example is a person who may be in remission from cancer. So many different grounds fall under the banner of health. We have no idea how that ground will be used in terms of a person having to be in good health. How does one determine health? How does one assess a person's health? What deems a person to be in good health? What qualifies a person as being healthy enough to be appointed a judge?
In all the years I have worked in the addiction sector, I have never been asked about my health or been asked to undertake a health assessment or needs assessment. Even if health has always been a ground that does not mean it should remain so. Things evolve because as times passes one can realise that things are inappropriate. Plenty of people have an ailment that the rest of us would deem to be a health issue but that does not mean that the ailment affects his or her capacity or ability to do a job. We cannot have somebody with a physical disability or whatever participating in an interview, and perhaps he or she uses a wheelchair, yet stipulate a ground in legislation that the person will be judged against what the appointing body determines to be an able-bodied and healthy person. Such a provision is inappropriate and, therefore, should be removed.
To be clear, it is not only inappropriate, it may be illegal. Whenever the grounds of health may have been used or introduced in the past has changed.
Recently the general data protection regulation came into effect. Under those regulations, the legislation for which we passed in this House, there are much stricter tests that need to be established in any situation in which persons are required to share their information, including health information. There is a test around necessity and proportionality. If that test were to be used, then we would have to be very clear on what was the basis. We would need to establish a legislative basis or another clear basis for asking persons to share their health information.That could be done under section 38 of the Data Protection Bill with the Minister putting forward that there is a public interest need to know about the health of candidates - that would be to satisfy both Houses - or under the Data Sharing and Governance Bill going through the Houses now. That Bill, however, explicitly excludes special categories of personal information so data cannot be shared. If the Minister really is keen, and it has been determined that health will be dealt with and will be part of this process, there is much work to be done on how that can be achieved.
We talked about prejudice and unconscious bias was the subject of lengthy discussion yesterday. There is such a thing as unconscious bias and people deciding whether a person is healthy - for example, a person who may be in remission from cancer. Someone on a panel might decide that person should not become a judge on the grounds of health because he or she should focus on his or her recovery. That decision is made for that candidate because there is no guarantee in respect of that person's health.
The Minister mentioned the potential ambiguity in respect of capacity. All of the possible interpretations of capacity he mentioned, however, seemed useful. Capacity in handling the challenges and requirements of a role in robust environments was mentioned. The Minister also mentioned, however, that there is a clear precedent regarding incapacity in respect of judges. If we have a clear and functioning definition of incapacity regarding judges - that already functions in respect of removing people from the role - it is not such a stretch to introduce an idea of capacity. If the Minister were amenable and if he would prefer it, we could amend the Bill to leave temperament and character on its own, standing with the history ascribed to it as the Minister has set out, and put in something addressing the key issue of incapacity. Incapacity has precedent in other areas of the law, as the Minister described. It is already case law and there is some precedent in how it is interpreted in respect of judges. We could refer to where there is not an incapacity. If the Minister was more comfortable with that, we should do it. Incapacity is, appropriately, a higher bar for somebody to be potentially excluded from a role, rather than simply the grounds of health with its wide open interpretation. Incapacity has some level of precedent we can look to and it is a more reasonable approach overall. Any concerns that the previous judicial appointments commission may have raised could be addressed by a clause on incapacity. It might also involve health issues but it would meet the test, in respect of GDPR, on necessity and proportionality while the wide open grounds of health does not.
Health is an important criterion for the appointment of a judge. I will explain why. As I described earlier in respect of who would like to be a judge - it was today or yesterday, I cannot remember which, I think it was earlier today-----
It is all rolling into one. It is a very demanding job and if a person's health is not up to it, he or she should not apply for it. If a person applies for it while suffering ill health, the job should not be given to that person, whether it is a man or a woman. That is a sad fact perhaps for Senator Higgins to take on board but it is serious in the great majority of important constitutional positions. It is about making serious decisions about other people's lives, on child custody, imprisonment and the custody of people's homes, etc. These are life changing decisions. It is a very demanding job. If person goes into such a job with a weak heart, such that he or she is unlikely to be able to manage day long sessions and late night sittings on certain occasions, then he or she should really not be appointed, regardless of whether he or she should apply in the first place.
The equality principle can be applied all we like but some people are born with weak hearts and they are unlikely to be able to do the work. The simple fact is that making these appointments is a bit like appointing someone to be a local garda sergeant. The person's health has to be sufficient to be able to do the job. There is no point in codding ourselves or saying we are so much in favour of equality in this House that health does not matter. Health does matter. One of the greatest injustices is when litigants come before judges whose health is failing. Can they deliver reserve judgments? Can they sit long enough? Senator Higgins may say that this is a matter of capacity. It is not. Health is the issue. A person has to be reasonably healthy to be able to be a judge. It is a common-sense principle.
What does that mean in practice? When I was the Minister for Justice, there were two appointments. One was of a man with multiple sclerosis, MS. He functioned perfectly well and it was abundantly clear that it would not interfere with his capacity to discharge his functions. Another was an individual who had a congenital mobility problem and is an excellent judge. There were, however, people appointed in failing health and it caused much difficulty. They got the job, the President of the court asked them to sit and they were not able to. They were not able to sustain cases because they fell ill after three or four days and that is a serious issue.
We can talk all we like about the theory of equality. I am talking about the practice and the consequences of appointing somebody in poor health to a position. Senator Ruane talked about the capacity to operate through sign language. I do not think that a person who had to operate through sign language could function as a judge. It is the same as he or she not being able to function as an airline pilot, in all probability. It is just a fact. Let us not get carried away by extreme ideological views of where equality will bring us in this regard. Senator Dolan made the point - and I agree with him - that health should be interpreted as meaning not that a person is able to run a mile or whatever. Health has to be given a reasonable meaning in this context and therefore the phrase "is suitable on grounds of health" seems reasonable.
We also had reference to the GDPR and the sharing of data legislation. I do not for a second believe that prohibits somebody making an appointment from inquiring about whether a candidate to be appointed to the job is suitable on health grounds. There is this kind of new magic aura surrounding GDPR, sensitive data, etc. It is being exaggerated way out of proportion. A person applying for almost any job in the country will be looked at on health grounds to see if they are up to it. That is in the private sector and in the public sector. A person cannot get into the Defence Forces and then suddenly say that he or she is relying on his or her GDPR rights and not doing a fitness test.
We are getting carried away with unrealistic things. I believe strongly that it is reasonable to ask a person seeking appointment to a permanent job, lasting for the rest of his or her life, to demonstrate that he or she is suitable on health grounds to be given that job.It is not the case that the person must be in the peak of health or enjoy brilliant health or that he or she does not suffer from diminished sight or something like that, but it does mean that some people who are intellectually capable of being a judge are unsuitable on health grounds to be appointed. I make this point precisely to deal with Senator Ruane's point. If one were relying on using sign language only to communicate, and I have full sympathy for people who are in that position, it would be a big mistake to appoint the person a judge. The process of interacting with counsel, lay people and all the rest would be immensely complicated if one were in that category. Let us not be unrealistic about this. Let us not suggest it would be illegal under the general data protection regulation, GDPR, to ask somebody to prove that he or she is suitable on health grounds to be appointed to a job which requires one to be in a reasonably healthy state before one carries it out. Let us not put ourselves in the position. The person with multiple sclerosis, MS, whom I spoke about, is one thing, but if one were suffering from motor neurone disease on the day one applied for the position of judge, surely the commission is entitled to ask the person about that because they know that within a relatively short period, as science stands, that person will be able to occupy the position only for a short period and that his or her capacity to discharge it will deteriorate over time. I ask people to be realistic and I think the present phraseology of the Bill is fine.
We heard the word "reasonable" many times. I am not saying that it is automatically illegal. My point is that it has to meet a test of being necessary and proportionate. All of the circumstances which were described as a concern were questions of capacity, but the key question is a person's capacity to do the job. One needs to pass a physical examination if one is to become a garda because one is required to do physical work and one has to demonstrate the capacity to deliver. There is nothing wrong with having people demonstrate their capacity to do the job, but I think Senator McDowell made the case for why we might need to have a clearer bar because he set out what he thought may or may not be a bar to appointment. It is okay if a person has MS, but it is not okay if one has motor neurone disease. It is not okay if one needs to use Irish Sign Language, even though we have passed the Irish Sign Language Act 2017. Sign language is officially recognised as a language that people can use in engaging with the State. I am advocating for a clear test about capacity instead of leaving it wide open and entirely down to the subjective experience. People may know about certain conditions and have baggage around different disabilities. When we speak of Irish Sign Language we are now into the area of disability. We are talking about persons who have a disability and suggesting that perhaps it would not be reasonable to appoint them to a role in the Judiciary. People may have an unconscious bias. The point I am making is that we must ensure that it relates to capacity to do the job and not to a person's feelings on an array of conditions and disabilities.
I think that is a reasonable proposal. I recognised there was a concern to be addressed, and that is the reason I put forward capacity. I have indicated that I am happy to look at another substitute which may do the same work. I recognise that an appointment should not be made where there is a concern that somebody may not be able to do late night sittings for whatever reasons or may not be able to manage a busy courtroom, but I think the question is whether he or she can do the job, not who they are.
I invited Senator McDowell to make a contribution, having regard to his knowledge and experience. I am pleased I did because I think he has made a reasonable contribution. As far as the health ground is concerned, I would have thought it was not unreasonable in most job applications to have regard to the health of the applicant. For example, if somebody's tasks included the driving of a mechanically propelled vehicle or a heavy goods vehicle for and on behalf of a transit company, I would have thought that these are questions that would be asked in the normal course. I now learn, however, that in circumstances these questions may be out of bounds. I am somewhat surprised at that, especially as a reading of the section leads me to believe that it may well be a straightforward requirement or a simple requirement for a candidate to self-declare that he or she is in good health and note is taken of that.
If this is an issue that is causing some distress to Senator Higgins, let me point out that in respect of section 53 on the preparation of statements, the statement setting out the requisite skills and attributes could well refer to the health issue at that stage to ensure that it was not going to be an issue that would ultimately result in an unfairness of a type that is giving rise to anxiety for Senator Higgins. I agree with Senator McDowell. I do not see it as an unreasonable requirement that in the circumstance that might be no more than a mere reference to health suitability.
We can continue on all night on this issue but I say in response to Senator Ruane's point on the comparison of the three different areas and objectives that while she says there is a different standard in terms of diversity, I would say it is more challenging to reflect the diverse composition of society than to achieve gender balance among the Judiciary. It is not a straightforward requirement and it is one that will give rise to a challenge. That is why I do not think it is unreasonable to qualify it by putting in the words, "feasible" and "practical". I am not sure it dilutes the objective but it does ensure there is not an unfair rigidity that might cause more difficulties than were intended.
I am not inclined to accept the amendment. Senator Higgins has said that she will reflect on matters and I await her further reflection in this regard.
On the basis of the word "rough" in the Senator's question, given the previous experience., it would certainly be some months. Work needs to be done on the establishment of the commission, its membership, office and staff. One can look at the establishment of other recent bodies, such as the Legal Services Regulatory Authority. I do not believe it can be done within six or eight months. It may be any time beyond that, but that is subject to circumstances. That is the most reasonable stab I can give it.
Amendments Nos. 13 to 23, inclusive, 25, 27, 28, 53, and 57 to 64, inclusive, are related. If the question on amendment No. 13 is agreed, amendments Nos. 14 to 23, inclusive, cannot be moved. If the question on amendment No. 13 is negatived, amendments Nos. 30 and 45 cannot be moved. Amendments Nos. 14 to 23, inclusive, are physical alternatives to amendment No. 13. Amendments Nos. 30 and 45 are consequential on amendment No. 13. Amendments Nos. 58, 60, 62 and 64 are consequential on amendment No. 14. Amendment No. 15 forms a composite proposal with amendment No. 21. Amendments Nos. 13 to 23, inclusive, 25, 27, 28, 53, and 57 to 64, inclusive, will be discussed together.
I move amendment No. 13:
In page 10, lines 20 to 31, to delete all words from and including “(1) The Commission” in line 20 down to and including line 31, and in page 11, to delete lines 1 to 3 and substitute the following:“(1) The Commission shall consist of 11 members being—(2) The Commission shall elect its own chairperson.”.(a) the Chief Justice,
(b) the President of the Court of Appeal,
(c) the President of the High Court,
(d) the President of the Circuit Court,
(e) the President of the District Court,
(f) a lay person nominated by the Irish Human Rights and Equality Commission,
(g) a lay person nominated by the Free Legal Advice Centres Limited,
(h) a lay person nominated by the Citizens Information Board,
(i) a lay person nominated by an tÚdarás um Ard-Oideachas,
(j) a practising barrister nominated under section 13, and
(k) a practising solicitor nominated under section 13.
The amendment proposes to simplify the membership of the commission. Currently, section 10 provides for 13 members, but then goes on to list 17 individuals who will comprise the commission. Our proposal is that five members of the Judiciary would be on the commission of 11 members, including the presidents of each court. The lay people will bring a very different prospective to the commission.
The Government proposes a competition run by the PAS, but this will be a complicated process and a much better way to find suitable lay people would be to have them nominated by organisations and entities that are well respected. This amendment proposes that laypersons be nominated by the Irish Human Rights and Equality Commission, Free Legal Advice Centres Limited, the Citizens Information Board and an tÚdarás um Ard-Oideachas.
It also proposes that representatives of both legal professions be included. Many people may make applications that look great on paper. Some will have impressive CVs and will do a great interview, but the commission needs to have the knowledge of the applicants' experience as barristers or solicitors over a period of 15 or 20 years. One will know much more about a person and whether he or she would make a good judge from knowing how he or she has been as a practising solicitor or barrister. The amendment also allows the commission to select its own chairperson.
My amendment No. 20 follows the recommendation of the GRECO report in stating that the chairperson shall be the Chief Justice. It is perfectly reasonable that the chairperson be the Chief Justice, the most eminent jurist in the land, somebody with a lot of experience and understanding of the situation. Earlier in the debate reference was made to taxi drivers. I cannot imagine taxi drivers having somebody who was not a taxi driver in charge of their organisation. It simply would not happen. It is against common sense.
No, it is not, I am afraid. Amendment No. 23 is deliberately intended to place the laypersons in a minority because it is nonsensical to have laypersons in the majority on this commission. Those two amendments both fit in with the recommendations of the GRECO report. The first one makes the chairperson the Chief Justice and the second one puts the laypersons into a minority. That is all that there is to it.
I would question his definition of "lay person" in the first instance and following on from that his narrow interpretation that somebody who would run a taxi operation should be a taxi driver. He could easily be somebody who has expertise in transport logistics - perhaps who ran a haulage company. It is possible to get people who might not necessarily have direct line experience but who would have an overall holistic view and could bring an awful lot more-----
It would bring much more depth, creativity and imagination if we could think a little more outside the box. I am surprised that the Senator's definition is so narrow.As somebody whom I consider to be very intellectual and creative, he should be thinking far more liberally and far more outside the box.
The substantive amendment I have in this grouping is amendment No. 14 which is similar to that of Senator Lorraine Clifford-Lee, amendment No. 13, in that it seeks to address the question of the composition of the judicial appointments commission. Our amendment is slightly different from the Senator's. Like hers, it has the advantage of being coherent in terms of numbers, unlike the current provision we are debating, section 10, which has come to us from the Dáil in an incoherent manner, with inconsistency in terms of numbers, which is unfortunate. Many of the amendments in this grouping, or at least some of the Government ones, are seeking to address it.
Our amendment is coherent. It provides that the commission would consist of 12 members, being the Chief Justice, who would be the chairperson of the commission, a number of other judges and seven non-judicial members. It sets out who would nominate each of them. It also takes into account the need for a gender balance. According to subsection (2), each body that makes nominations shall nominate both a man and a woman for appointment by the Government. Subsection (3) states, "In appointing members of the Commission, the Government shall have regard to the objective that no fewer than 5 members should be women and no fewer than 5 members should be men". We have tried to put forward a coherent and clear outline of the preferable composition of a judicial appointments commission and also sought in our provision to have regard for the need for a gender balance on the commission. We will certainly be pressing the amendment. I do not expect the Minister to indicate that he will be accepting it. It may well be that the amendment in the name of Senator Lorraine Clifford-Lee will be pressed before ours. It is very much in a similar tone. To be fair, our amendment also draws on the provisions put forward in the other House by Deputy Jim O'Callaghan who proposed a similar composition for the commission. We supported it, in principle.
The other amendments we have in this grouping are amendments Nos. 58, 60, 62 and 64 which are more procedural in nature. Amendment No. 14, however, is very much substantive and goes to the heart of the debate we have been having on the Bill and the issues we have been discussing about how best to ensure positive reform of the judicial appointments system that will result in a system that is effective in delivering a robust and independent Judiciary.
I welcomed the amendments made in the Dáil because it was appropriate that the President of each of the courts should be included. A person from the Irish Human Rights and Equality Commission was a positive and constructive addition to the mix. I do not have a problem with the board being larger if it accommodates all suitable legal persons and a suitable number of laypersons. From my perspective, the size of the board is not a concern.
It states persons nominated must have knowledge and experience of or expertise in the administration of justice, the operation of the courts and the provision of legal services. This indicates to me that it is a case of the legal profession looking after the legal profession again. At present, the person who appoints judges may be a layperson because he or she may not have any knowledge of the judicial system.
I wish, in the first instance, to respond to Senator Lorraine Clifford-Lee. I acknowledge that amendments Nos. 15, 21, 25, 27, 28, 53, 57, 59, 61 and 63 are in my name. I will be moving amendment No. 15. Before I do so, I want to make a point on amendment No. 13, as proposed by Senator Lorraine Clifford-Lee. It is, of course, entirely consistent with the approach taken by the Senator's colleagues in the Dáil. The amendment provides for a commission of 11 members. This equates to numbers currently on the Judicial Appointments Board. The breakdown in the amendment is five judicial members, including the Chief Justice and the four Presidents, two legal persons, being nominees of the Bar Council of Ireland and the Law Society of Ireland, and four laypersons, each nominated by a different named body. The commission would elect its own chairperson. There are good elements to the amendment. Not wishing in any way to surprise the Senator, I remind her that the amendment is completely at odds with the Government's approach which reflects Government policy in the most fundamental respect. The most positive element of the amendment is that it would secure the membership of all court Presidents, including the Chief Justice who is the favoured person of Senator David Norris.
Senators will be aware that an amendment of mine on Report Stage in the Dáil achieved that objective. The Bill, as passed in the Dáil, provides for membership of the commission by these five senior judges. That is important. The Bill also includes an Irish Human Rights and Equality Commission nominee. An amendment in that regard was inserted on Committee Stage in the Dáil. There are some similarities with what is already included in the Bill. The differences are those that make it impossible for me to agree with the Senator's amendment. Amendment No. 13 does not provide for a lay majority. In terms of composition, it does not amount to much in terms of reform of the current position. The current Judicial Appointments Board comprises five judicial members, two legal professional nominees, three non-legal persons and the Attorney General. The only change I can see in the amendment that would achieve any real reform, particularly with reference to the question of involvement, is the addition of one non-legal or lay member to replace the Attorney General. Amendments Nos. 15 and 21, in my name, will bring the membership to 17 by adding one further layperson to provide for a non-legal or lay majority. With the Senator's amendment, we are not very far advanced from the position in 1995, over 20 years ago.
Apart from what I see as the low representation of non-legal persons, a point rightly referred to by Senator Anthony Lawlor, the main change in amendment No. 13 would have the effect of dropping the Attorney General altogether from the process. It is true that this was the effect of the amendments passed on Committee Stage in the Dáil. On Report Stage, based on my amendment, the Dáil agreed to reinstate the Attorney General on the commission. I do not envisage going back to the last version of the Bill in order to remove the Attorney General. I want one moment to outline why the Government, including me, is convinced that the Attorney General should be a member of the commission.The programme for Government commitment is to establish a commission with a lay majority and an independent chair. The Bill, as passed by the committee, provides for a lay chair. My intention in the Seanad, with the support of the Members, is to ensure that we have a non-legal or lay majority. With regard to the lay chair, the amendment provides that the commission shall select its own chairperson. In subsection (2) of Senator Clifford-Lee's amendment to section 10 is to operate in the context of not just a judicial and legal-professional member majority, but a simple majority of judicial members over the lay members. The amendment holds out the theoretical possibility that any of the commission members could be voted into the chair. I am concerned that there is no guarantee whatsoever that any lay person would ever chair such a commission. I do not accept that it is reasonable for us, as legislators, to leave these important institutional arrangements to chance or to what might happen on the day. All of us here are experienced politicians going to meetings where committees are elected and officers are elected and often leaving these issues to an "It will be all right on the night" approach is not in the best interests of the committee or, indeed, those involved.
As regards the lay persons and the nominee system, I would say to Senator Clifford-Lee that I know her party has consistently sponsored this throughout the process, but I am concerned that there is no role whatsoever for the Public Appointments Service, PAS. I would not be in a position to accept that. I am still convinced that the Public Appointments Service, operating on a set of competences, based on the provisions of the Bill, is the best method of obtaining the knowledge and experience that I have no doubt will be represented in some of these bodies. This an open, visible, tested and tried process. PAS was directly involved in the recruitment recently of our new Garda Commissioner. Why should the manner of appointment of members or, indeed, the chair of this new commission be any different?
We spoke about the Public Appointments Service earlier and I said it was a body that had reached certain standards of competence and excellence and that since its establishment it has served the Government and administration and people well. I did not hear any dissenting voice in that regard. My conclusion is that the PAS system is the most appropriate one, fulfilling, as it does, this role in respect of other like bodies. I would say to the Senators in passing that the chairperson of the Top Level Appointments Committee that has been referred to is not a senior civil servant, but is independent of the Civil Service. In any event, Senator Clifford-Lee's amendment poses a number of policy issues, which provides me with a difficulty and means that I will not accept it.
I want to mention the Attorney General, for clarity. I have already made reference to the will of the Dáil select committee that the Attorney General be removed from the commission membership provisions. The committee instead voted in favour of the inclusion of the chief commissioner of the Irish Human Rights and Equality Commission, IHREC. The element of those changes relating to the IHREC member was a positive result of our deliberations at the Dáil select committee. IHREC is the national institution tasked with protecting and promoting human rights and equality in the State. These areas are of fundamental relevance to the portion of matters which the Judiciary determines, whether it is to do with the powers and functions of Government, the values informing the criminal justice process or a range of personal rights relating to family, private property, education, religious freedom and the like.
With regard to the Attorney General, my view and that of the Government in this matter, and ultimately the Dáil accepted this on Report Stage, is that we wish to ensure the continuing involvement in the important process of judicial selection and recommendation of the officeholder on the new commission. When the job was first provided for in the Courts and Court Officers Act in the mid-1990s, it was seen as absolutely essential to have the Attorney General at the core of the body. The Dáil has accepted that now and I see no going back on this.
For the record, the service in this role of various Attorneys General over the intervening years has been immensely beneficial and has been complementary to the work of the other Judicial Appointments Advisory Board, JAAB, members, in ensuring and guaranteeing, in effect, that the very best of candidates for judicial appointment were, as a consequence, recommended for appointment. While there has been criticism of the appointments system, I have heard none here, nor indeed have I heard of any mistakes having been made, or misunderstandings having come through the system. JAAB and the system of appointments has served us well, was fit for purpose, and we are now reforming in order to ensure that we have best practice. The Attorney General had a pivotal role to play in the process from the start and my view is that the role of that office should continue into the future, and on the new commission. The knowledge and attributes of an Attorney General across a range of legal and, dare I say it, judicial matters are indispensable to the formulation of any view about the merits of a person coming forward for judicial appointment. We cannot ignore the fact that the day-to-day interaction with the law and the courts, and at the highest level of legal proceedings before the courts, provides the Office of the Attorney General with a unique perspective on the work of practitioners, as well as the deliberations of the courts themselves.
I see no valid point whatever in the notion that the Attorney General, in discharging his or her role at Government as legal adviser, is in some way as having two bites at the cherry, as was stated by some Deputies. It is because of the separate role he or she has at the commission - a role I firmly believe can only be discharged by the Office of the Attorney General - that to some degree this opposition to the Attorney General is inherent in this amendment. I cannot accept it.
I acknowledge the fact that we are discussing a large group of amendments here and that we are hitting at the heart of the change, the new system and the scheme of arrangement for the commission. However, I have yet to hear a convincing argument for forgoing or, indeed, casting aside the unique input of the Attorney General to the deliberation stage of selection, where very many names may be before the commission, as opposed the very limited number of names which now come to Government. As a result of that, the argument for the inclusion and retention of the Attorney General is even stronger now than it was in 1995.
I will address amendment No. 14, as proposed by Senator Bacik. This amendment addresses the composition of the commission and provides for 12 members, five senior court presidents - including the Chief Justice as chairperson, as supported by Senator Norris - and seven non-judicial members as the Senator terms it, all to be nominated by stipulated bodies, including the Law Society and the Bar Council, so this is lawyer-heavy. I have several issues with this approach, going over much of the same ground in respect of a more significant number of amendments that revolve effectively around the same points here.
Senator Bacik's amendment provides for no lay majority. My interpretation as to what is provided for is five lay persons per se, including one to be nominated by IHREC - we already have that in the Bill - and two legal nominees. This is not dissimilar to the other Senator's approach. The fact that there is no non-legal, or non-judicial or no lay majority in this amendment, and no lay chair, makes it impossible for me to support it. Additionally, there is no provision for the Attorney General. As I have stated, I see the role of the Attorney General on the commission as being vitally important. I have argued before that when it comes to a system solely where designated nominating bodies have the say in relation to the lay composition, we immediately run into difficulties.These are fine organisations. There is no argument about that. However, there are multiples of these organisations directly involved in justice matters, legal matters and relevant advocacy matters on the ground, so these could be considered as being as relevant, if not more so, to the task the Senator has in mind for them. I wish again to bolster my point now with my support for the PAS in the selection of the non-legal or lay members. By and large this has been accepted by the Dáil. It is what is in the Bill now. I do not intend to unwind this, not least because I believe, as I have stated on numerous occasions, that PAS simply is the proper process to follow.
I note that Senator Bacik's subsection (2) addresses the knowledge and experience criteria deemed relevant. Much work has been done on this aspect in the Dáil. I cannot see an improvement to that here, but it is good to see much of what is in the Bill also reflected here. Section 12 also makes provision for gender equality and diversity objectives in the selection of lay members and, therefore, I will not go along with Senator Bacik's amendment.
Government amendment No. 15 proposes to delete "13 members" and substitute "17 members"", and amendment No. 21 proposes to delete "6 lay persons" and substitute "7 lay persons" under section 12. They form are a composite proposal and they are identical to Dáil Report Stage amendments Nos. 8 and 14. I explained in this House two weeks ago on Second Stage that I would table these amendments relating to the commission's numbers and composition and I explained why. The commission's composition in the Bill, as passed by the Dáil, is as follows: the lay chair, the Chief Justice, the President of the Court of Appeal, the President of the High Court, the President of the District Court, the President of the Circuit Court, the Attorney General, a nominee of the Irish Human Rights and Equality Commission, a nominee of the Law Society, a nominee of the Bar Council and six non-legal or lay members. That is a total of 16 and there is no lay majority.
However, as I explained on Second Stage, due to a procedural difficulty on Report Stage in the Dáil and a ruling from the Ceann Comhairle on the matter, a number of amendments could not be moved to give full effect to the Government's position with respect to the composition of the commission. Specifically, further to a vote on Report Stage, amendment No. 8, having been lost on 22 May, and an additional three members having been added to the commission to bring the membership number to 16, the Ceann Comhairle ruled on the next day, 23 May, that Report Stage amendment No. 14 could not be moved but that the consequent anomaly arising in the text could be addressed in the Seanad. Due to the defeat of my amendment No. 8 on Report Stage, the number of members is referred to in section 10 as 13, so clearly, we have an anomaly here and we need to rectify it. I indicated on Second Stage that I would do so, so amendment No. 15 provides for the number of commission members as stipulated to change from 13 to 17. I am required to change it to 17 to make way for an additional non-legal, non-judicial or lay member, which is the subject of amendment No. 21, which increases the number of lay members from six to seven to ensure a lay majority in accordance with the programme for Government. The effect of these amendments, in summary, therefore, is to set the commission membership at 17 and to ensure, by increasing the number of lay members by one, that we have a lay majority of one.
It is critically important to get the balance of the commission members right. The effect of amendments Nos. 15 and 21 together achieve this. I make no apologies for the net effect of these amendments, which secure Government policy in this area. I indicated on Second Stage that we are moving on substantially from the position created back in the mid-1990s, when the JAAB process was first conceived. This was the first time the Government function in the matter was supplemented by an independent element of the process and it was the first opening to any scrutiny of the process. At the time it was a real advance and a real innovation. The modern justice system now operates in a different administrative environment. More transparent, more participative approaches are clear in the matter of public policy decision-making in models not only here, but also on the international stage. This marks out our approach to having a strong, non-legal, non-judicial or lay representation reflecting today's governance and participation models and public policy decision-making. It is important that we endeavour to get the balance right between different contributions and interests.
On the matter of balance, a significant change in the Bill, as passed by the Dáil, was to provide for the membership of all four court presidents as well as the Chief Justice on the commission. This is by way of my amendment on Report Stage. This approach fully recognises the need to ensure our senior judges - all five presidents - play the strong, critical, expert and experienced role they have on these matters, and the Bill allows for this. We have struck a good balance in this regard. We have judicial involvement, lay involvement, the Attorney General, the Bar Council's representative and the Law Society's input. The inclusion in the membership, following on the Dáil work on the Bill, of a nominee of the Irish Human Rights and Equality Commission is also a positive.
I said on Second Stage and I repeat here that my position is clear: the Government has set out to ensure that the commission will have a lay chair and a lay majority, but balanced by a substantial judicial presence and by the presence of the Attorney General and a representative of both arms of the legal profession. The individuals and expertise needed to continue to professionalise the selection of excellent judges will be there with its own strong voice at this commission, including the experience, expertise and wisdom of the Chief Justice himself or herself and other senior members of the Judiciary, so I put forward my own amendments.
I will address Senators McDowell, Boyhan and Craughwell briefly on amendment No. 16. The amendment lays clear the thinking of the Senators tabling it as to what their concept of the leadership of the commission would be. It is the practice that the Chief Justice has been the chairperson of the JAAB. I made it clear earlier that we are moving to a more modern approach to these matters. We will have a commission with a significant remit and its own resources. We will have members of the commission who, according to Senator McDowell, will be busy and will have an onerous workload. In this context, and to ensure that lay representation has a real meaning in this environment, similar to steps taken in England, Wales and Scotland, it is time to move to a stronger non-judicial, non-legal model with leadership of a suitably qualified layperson. The Bill stipulates the qualifications, the process and the qualities required for the leadership of this commission by an experienced, expert, non-judicial, non-legal person working closely with the Chief Justice and other members of the Judiciary. The Chief Justice will lead the judicial team on the commission with the strongest possible input of senior judges - all of whom are court presidents.
These are important amendments. A number of Senators representing different groups and none have tabled their own variations. We have been over this ground a good deal. I am happy to listen to the submissions of Senators but I am reluctant to accept any amendments that deviate from the framework I have put forward in respect of the new commission: 17 members; a balance between legal and judicial and lay experts bringing their own experience to this important commission; and a role for the PAS in selecting the chair, but that chair being a non-legal and non-judicial layperson. I am not minded to deviate from that. However, having regard to what I said about the balance, as this important legislation enters its final Stages in the Houses next week, it is important we have legislation that is constitutionally robust, legally sound and workable in ensuring the commission can carry out the duties that will be assigned to it under the legislation.
I want to respond to the point the Minister made about the Attorney General. It is interesting that section 10 provides that the Attorney General will be one of the members of the commission. If amendments Nos. 15 and 21, in the Minister's name are made, the commission will comprise 17 persons. The reason the Attorney General referred to it as a dog's dinner is clear; the way in which the anomaly in section 10 is proposed to be rectified is rather messy. It is interesting that the Attorney General is still included as a member of the commission, as is the case in the section 10, whereas both my amendment No. 14 and amendment No. 13, as proposed by Senator Clifford-Lee, do not include the Attorney General. That is in keeping with the position of the Irish Council of Civil Liberties, ICCL, which sought significant reform in 2014, including the abolition of the JAAB. It advised the Government to remove the Attorney General, as a political appointee, from the appointments process, believing that this would be in keeping with measures taken against the potential for political favouritism. It is interesting that the recommendation is not followed here.
Amendment No. 17 is a stand-alone amendment from Sinn Féin which seeks to remove the reference to the Attorney General in section 10. I am interested to hear a little more about why that recommendation from the ICCL was not followed. It had recommended a lay majority on the new body. The latter seems to be out of step with the package of reforms that is otherwise being proposed. It is an amendment I hope to press, although I may reserve the right to press it at Report Stage.
The amendment moved in Dáil Éireann for the inclusion of the Attorney General on this commission was a wise one. I am interested to hear that the ICCL does not approve of the idea, but there are many reasons why it should be done. Bearing in mind the constitutional function of the Government, which is preserved by this Bill in one way or another - its prerogative to appoint people who are eligible and to advise the President accordingly - it seems that it would be strange indeed if the Government had no insight into what the commission was doing. It is an aspect of the Bill I cannot quite follow in its current form. If the commission was consistently turning down a person the Attorney General thought was worthy of consideration, it would be a good idea if the Government knew about that rather than be simply left to wonder if that person ever applied or what happened to him or her.
The Minister will have to consider what the Government is entitled to know about the deliberations of the commission between now and Report Stage. Various people in this House have stood up and, with a flourish, stated that this is going to be transparent. We will come to the question of confidentiality at a later stage of the debate, but I take it that it is not intended that we should read on the front of The Irish Timesor elsewhere that three named people were proposed and were ranked in a particular order. I assume it is not intended that this judicial appointments commission will operate in that way. What I have outlined would lead to controversy, disappointment, disillusionment, political argumentation and dissatisfaction with the ultimate choices made by the Government. There has never been clarity in this legislation as to whether we are to know whether what the commission reports is to be made public in any circumstance, and we have tabled amendments to clarify that issue. It would be nothing short of disastrous if the three names recommended by the commission were made public, including the order in which they were recommended, and it was found that the Government had chosen the third named candidate instead of the first and second choice candidates. What is the point of providing a shortlist of three names in those circumstances? Essentially, the commission would be informing the Government that it may defy its opinion providing that the Government publicly acknowledges that it has inverted the order. If that is what is being contemplated, it is wholly unacceptable.
On my reading of it, the Bill is not clear on this matter. Some speakers have indicated that they want a crystal-clear and transparent process. It is never going to be either. If it were, the outcome for disappointed candidates would be pretty awful. Top-quality people will never apply for a job where there is the possibility that they will read about their rejection in the newspapers. We must be clear in our own minds about this. If one of the consequences of this new system was to be that a person might read on the front page of a newspaper that he or she had been rejected by the Government or that he or she was number three on the list after two others and if a debate about the various merits of candidates is conducted in the newspapers in general, that would be extremely damaging to the entire process and subvert public confidence in it. In that context, the presence of the Attorney General is of some significance, because he or she would be able to tell the Government what is going on with the commission, what kind of people it is going for and who is not being recommended for appointment. When the Government comes to use its own residual prerogative to nominate people for judicial appointment and to advise the President to nominate somebody, it should know whether that person did or did not apply and was or was not successful in an application to the judicial appointments commission.
The only dependable way that I can see for the Government to become aware of the list of candidates is to have a confidential and secret line of communication between it and the commission in the person of the Attorney General. Having been the Attorney General on the JAAB, it is not the case that he or she would say to the Chief Justice and various other members of that board that Mr. Joe Bloggs is going to be appointed and that there is no need to nominate anyone else. Nothing like that ever happened. I say this in case people think that the presence of the Attorney General is something that would somehow bring the debate to a halt. That simply did not happen. Perhaps I am biased, having held the office of Attorney General. However, the Attorney General in Ireland, unlike in the United Kingdom, sits at Cabinet. When Cabinet comes to make the decision, the Attorney General and the Minister for Justice and Equality are the two people who, as outlined in the Cabinet handbook, must be involved in the process before a person is suggested to the Government as being suitable for recommendation to the President for appointment to the Judiciary.When I was Attorney General, my understanding was that the Minister for Justice customarily made the proposal but he or she was obliged to consult the Attorney General of the day, the Taoiseach, and, by custom in a coalition, the leader of the other coalition party before bringing such a resolution before the Cabinet.
The Attorney General is also a constitutional officer and an ex-officio member of the Council of State. It is a job with responsibilities, and one that carries with it a residual role to advise the President on matters where the Council of State has a function, though it does not have a function in the appointment of judges by the President. When the Dáil, in the messy process that gave us this section in its present arithmetically challenged form, decided to reinstate the Attorney General on the commission, it made a wise and proper decision and I cannot support any amendment that has the effect of reversing that decision and excluding the Attorney General.
It is instructive to have an insight from someone who has served as Attorney General on JAAB. Senator McDowell brings that experience, which none of us have, to bear and it is useful to hear him speak of the presumed rationale behind the reinsertion of the Attorney General onto the new commission. I simply observed that it seemed somewhat anomalous that the Attorney General remains on the newly constituted commission under section 10 whereas the other changes are in keeping with a rather different perspective on reform. It just seemed to be yet another anomaly, alongside the anomaly relating to the numbers on the commission.
I will address another point that I should have made when I first discussed amendment No. 14, which was made by the Minister about the criteria for deciding who to put forward. We have taken some of the Minister's own provisions in section 12(6) regarding the matters that lay persons should have knowledge of, including matters connected with the administration of justice and so on. My list is somewhat more inclusive in that it also includes the needs of consumers of legal services. It is anomalous that that would not be included among the requisite criteria for those to be appointed as lay persons. It is important that knowledge of provision of supports to persons who are victims of crime be included. We have included it and it is also in the Minister's list. Perhaps "for users of services provided by the courts" might be as close as it gets but I am not sure that it is quite the same.
Our amendment refers to the persons who would be the non-judicial members nominated for appointment by the different bodies. The reason those bodies, such as Citizens' Information Board, Competition Consumer and Protection Commission and so on, are included is that one would expect their nominees to have the experience or knowledge of matters that are specified under section 12. It is a more focused way, perhaps, of ensuring the same expertise or experience among the lay members of the commission. I see the same approach is taken in Senator Clifford-Lee's amendment No. 13. We are seeking to do something similar but in a more focused and directed way.
I do not intend to repeat the points I made earlier except that my opposition to the various configuration of amendments before us from the different groups stems from the ultimate flaw, from my perspective and that of the Government, namely, that they do not facilitate the lay majority and the lay chair. I agree with the points made by former Minister, Senator McDowell, about the central role and the constitutional office of the Attorney General. It is why I point to the body of the current section 10.
I did not refer to the other amendments in the group and will do so briefly.
Amendment No. 53 is identical to Dáil Report Stage amendment No. 53 in the series of amendments that the Ceann Comhairle ruled could not be moved. It is a drafting amendment consequential on the inclusion of the President of the District Court, the President of the Circuit Court and the Attorney General as members of the commission. It extends the effect of the section to the Irish Human Rights and Equality Commission member, and ensures that the provisions of section 16(7) on the payment of allowances will not apply to these members.
Amendment No. 57 comprehends the IHREC nominee relating the resignation from the commission and the filling of a casual vacancy. While it is a technical amendment, it is a necessary addition.
Amendment No. 58 is in the name of Senator Bacik and her party colleagues and is read with her earlier amendment No. 14 on the composition of the commission. Section 18 is a standard provision relating to the arrangements necessary where a member of the commission ceases to hold office. I have tabled a technical amendment to this provision to include the IHREC nominee in its scope. However, Senator Bacik's amendment is consequential on the reconfiguration of the legal and lay membership of the commission. Coming from the Senator's perspective, it seeks to replace the reference to the legal members and lay members with reference to the seven non-judicial members which have been proposed. I return to my original opposition and difficulty to the Senator's substantive amendment, and, therefore, I will not support any of the consequential amendments.
My amendments Nos. 59 and 61 correspond with Dáil Report Stage amendments Nos. 60 and 62 and a series of amendments that the Ceann Comhairle ruled could not be taken for procedural reasons only. These amendments are necessary additions to the matters addressed in section 19 dealing with disqualification and ineligibility for membership. They have the effect of including the IHREC nominee. Amendment No. 59 also applies section 19(1) to the IHREC member as well as its existing application to lay members and the legal professional members. Amendment No. 61 makes ineligible for membership of the commission a member of IHREC should specified grounds (a) to (d) under section 19(1) apply to that person. This merely extends what applies to lay members and legal professional members to the IHREC member.
Amendments Nos. 60 and 62 are proposed by Senator Bacik. I am sure the Senator will agree that these must be read with amendment No. 14 on the composition of the commission.
Section 19 contains standard provision for grounds for disqualification of a member of the commission. I have tabled a technical amendment to this provision to include the IHREC nominee. Having regard to the fact that amendment No. 60 is consequential on the reconfiguration of the legal and lay membership of the commission, as with any amendment consequential on amendment No. 14, I will not support it.
I refer to my own amendment No. 63.This is a former Report Stage amendment No. 64 which was not moved for procedural reasons. What I am doing is extending the provisions of section 20 concerning the removal of membetrs to include the IHREC nominee as it already applies to lay members and the legal profession members. As I could not move the amendment in the other House I hope to move it here. The acceptance of the amendment is critical. All we are doing is providing for the application of the provisions.
Amendment No. 64 in the name of Senator Bacik is read in conjunction with amendment No. 14 and deal with the composition of the commission. Section 20 is a standard provision. As I do not agree with the substantive amendment, I am not obviously going to agree with any consequential amendments.
I acknowledge the presence of Deputy Michael Moynihan and his guests in the Gallery. You are more than welcome. I always like to see Members of the Lower House paying homage to this Chamber. Thank you. Is the amendment being pressed?
I move amendment No. 14:
In page 10, lines 20 to 31, to delete all words from and including “(1) The Commission” in line 20 down to and including line 31, and in page 11, to delete lines 1 to 3 and substitute the following:
“(1) The Commission shall consist of 12 members being—
(a) the Chief Justice, who shall be the Chairperson of the Commission,
(b) the President of the Court of Appeal,
(c) the President of the High Court,
(d) the President of the Circuit Court,
(e) the President of the District Court,
(f) 7 non-judicial members appointed by the Government, of which—
(i) one shall have been nominated for appointment by the Council of the Bar of Ireland,
(ii) one shall have been nominated for appointment by the Law Society of Ireland,
(iii) one shall have been nominated for appointment by the Citizens Information Board,
(iv) one shall have been nominated for appointment by An tÚdarás um Ard-Oideachas,
(v) one shall have been nominated for appointment by the Competition and Consumer Protection Commission,
(vi) one shall have been nominated for appointment by the Irish Human Rights and Equality Commission,
(vii) one shall have been nominated for appointment by the Free Legal Advice Centres Limited.
(2) For the purposes of subsection (1)(f), each body that makes nominations—
(a) shall nominate both a man and a woman for appointment by the Government as a member of the Commission,
(b) shall satisfy itself that the persons so nominated have knowledge and experience of or expertise in relation to—
(i) the administration of justice, the operation of the courts and the provision of legal services,
(ii) the needs of consumers of legal services, including provision of supports to persons who are victims of crime,
(iii) human rights, equality or issues concerning diversity amongst members of society,
(iv) offending behaviour or the rehabilitation of offenders,
(v) commerce, finance or administration, including public administration,
(c) shall submit to the Government a short statement in writing of the qualifications of the persons so nominated.
(3) In appointing members of the Commission, the Government shall have regard to the objective that no fewer than 5 members should be women and no fewer than 5 members should be men.”.
I will withdraw this amendment but reserve the right to resubmit in on Report Stage.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paul Coghlan, Rose Conway Walsh, Martin Conway, Maire Devine, John Dolan, Frank Feighan, Paul Gavan, Alice Mary Higgins, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Neale Richmond, Lynn Ruane, Fintan Warfield.
Amendment No. 19 is in the name of Senator McDowell. It is part of the Senator's overall proposal to reduce the numbers whereas an amendment agreed by the Government and by the House suggests an increase from 16 to 17.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paul Coghlan, Rose Conway Walsh, Martin Conway, Maire Devine, John Dolan, Frank Feighan, Paul Gavan, Alice Mary Higgins, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Neale Richmond, Lynn Ruane, Fintan Warfield.
I welcomed Deputy Michael Moynihan earlier. I made a slight error. He was accompanied by his cousins from Seattle, Seamus Smith and Peggy O'Brien-Murphy, who come from the famous town of Kiskeam in north-west Cork. I made an error which I had to rectify.