Tuesday, 10 July 2018
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
This amendment proposes to delete section 11(7) to (10), inclusive, from the Bill. When the House rose last night and I reported progress, I was in the middle of asking the Minister a number of things. First, I asked him what was meant by the dual function of advising and assisting the commission in the consideration of applicants at a preliminary stage in the course of the selection procedures. Second, I asked him what was meant by the provision of an evaluation or assessment of an applicant's suitability for appointment that would assist the commission in making any decision in the course of carrying out those procedures. Third, I asked the Minister to provide a clear explanation as to what the qualification in the last paragraph of section 11(8) actually meant in the circumstances. It is very important that we understand how the commission will operate. I had, therefore, also asked the Minister to say if anyone will have a clear picture of what has happened to his or her application if he or she is unsuccessful in seeking to be considered by the commission for appointment by the President as a judge on the advice of the Government.Will an unsuccessful candidate have any insight into why he or she failed? Will he or she be given feedback on his or her application and the interview that took place? That is relevant, for instance, for people who are concerned, as Senator Lynn Ruane is, about diversity. Did it feature and, if so, how, or how did it not? I have expressed the view to the Minister on different amendments that people talk about transparency in this process, but I cannot see how it will work in a truly transparent way.
I apologise for the phone interruption.
Has the Minister had any further thought on the anomaly that I believe I correctly pointed out to him? Subsection (7) states, "enter into contracts or arrangements with any person, and", while subsection (8) states, "Any contract or arrangement with a person, or appointment of a consultant or adviser". They appear to establish three distinct identities, namely, the person, the consultant and the adviser. Subsection (8) also states, "but shall not enable the person, consultant or adviser, for the purpose of performance", while subsection (9) states, "The Commission may, out of the resources at its disposal, pay to a person, consultant or adviser referred to in subsection (7) ". They clearly seem to establish the fact that there are distinct entities. Subsection (7) states, "The Commission may as it considers necessary to assist it in the performance of its functions ... (a) enter into contracts or arrangements with any person". It also states, "...and (b) with the consent of the Minister, appoint consultants or advisers". The provision whereby the "Commission may ... enter into contracts or arrangements with any person" can also be defined legally as encompassing a limited liability company. That is quite separate from the provision in subsection (7) which states, "with the consent of the Minister, appoint consultants or advisers". Has the Minister had time to reflect on this issue? It could lead to an evaluation in court if it is not resolved in Parliament.
I hope we will be able to make some progress on the 111 amendments tabled. Since we met last night I have had the opportunity to attend the Cabinet. I had the privilege of proposing to my Cabinet colleagues for consideration a number of nominees for judicial office.
-----one new judge at the level of the Circuit Court and one appointment to the District Court. Lest there be any doubt - I have heard some doubts being expressed - I intend to bring forward further appointments to the courts, as required. I also intend to continue my engagement, on a formal basis, with the Association of Judges of Ireland and the Presidents of the courts.
I am also very keen to ensure the capital building plan will proceed at speed and with vigour. I look forward, in particular, to reporting progress on the very exciting Hammond Lane project which will see a separate division of family law courts within the courts structure. This is an issue I look forward to discussing with the Chief Justice at the earliest opportunity, either this week or next.
I hope we can all move forward in the spirit of progress, which is not something that I have gleaned over the past few hours here in the Seanad. I note an anxiety on the part of Senators, not to have progress made on this Bill, but I am in the hands of the Seanad and the Leader.
I believe we will be here all night in any event. Subsection (8) circumscribes the purposes for which such contracts or arrangements, or appointment of consultants or advisers may be made by the commission, namely, to advise or assist in the preliminary stages of a selection procedure or provide assessments of individual applicant suitability to assist the commission in making decisions in selection procedures. This is far from the type of scenario that was painted here before the House last evening. It very specifically states that the power cannot be used for consultants to do any other issue or matter or thing or to stray beyond what is the clearly and narrowly defined role and function that they will have.
The other subsections provide for the payment of fees to consultants and the setting of periods of engagement in terms and conditions. We have an extraordinary situation here over the last number of evenings where on the one hand the Bill is being criticised for costing too much money, and on the other there is not sufficient funding available to allow the import of the Bill to have effect. We cannot have it both ways. We either want a piece of working legislation that is adequately funded or we do not. We will ultimately have a piece of legislation here that is constitutionally sound, that is legally robust, - which is what we are doing now - that will be workable and will do its job in an efficient and effective way.
We have heard much talk - indeed we heard it again last night - about quangos. Suggestions being made that the new commission is being set up as some sort of engorged bureaucracy in a way that is disproportionate to the task which the commission is to carry out. This is extraordinary and an exaggeration in many respects. It was precisely for the reason of avoiding the commission having to take on a lot of employees who might be HR, recruitment, and selection procedure experts, that we put these provisions in the Bill. The idea behind these provisions as to the consultants, the advisers or the contracts with persons is where the new commission needs expert assistance, at a key stage in the process, it can hire on a short-term contract basis, committing it only to the variable costs from time to time where expenditure is necessary, rather than having the fixed term costs of long-term employees. This is perfectly normal in the public service and I will outline a few examples.
It would be normal enough, for example, in the case of the District Court, as referred to by Senator McDowell. It could well be that one may have applications in excess of 100 for one position. The commission will be a small, professional but lean organisation, with a director and a small secretariat that would be geared around the running of the competitions and providing support for the commission and its procedures committee. It is the procedures committee that will ultimately draw up the technical arrangements for the interview process, for instance, in the context of best practice. When it come to the matter of shortlisting and the screening for eligibility for competitions such as for the District Court where there are large numbers, I believe it is not only inevitable, but also very advisable that there will be expert help at hand. I do not see anything untoward or illegal about that or anything that warrants Senators becoming exercised in the manner in which they have. That is the potential that we are providing for here.
If we look at the alternative, the commission will have expert employees who are being paid all of the time, and only need to switch in where there is a large volume of applications. That will not happen too often.In the region of between 50 and 60 appointments are made each year across the courts. I do not believe it makes sense, economically or otherwise, to have a range of expert employees on a full-time basis. I ask Members to recall that one of the main purposes of the Bill is to professionalise the selection process that is used to determine who to recommend for appointment to judicial office. That means access will be needed to people with expertise to advise and assist the commission in designing and operating the selection processes. This is best done by way of expert assistance. That is acknowledged not only in this Bill but in other similar legislation. We are looking at the design of competency models, profiles for jobs, interviews or test processes where applicable. I am not sure of the extent to which psychiatric help will be employed, but this is one of the examples I have heard tossed around. To my mind, that is an exaggeration, to say the least.
The only way to do this in an efficient and cost effective way is to provide for the placing of these type of contracts for the expert assistance that is available in the private sector. Why not have the public sector engage in the best practice that is available in our land?
The important point is that the commission will be running the processes and making the decisions. The commission will be recommending people. Should Senators McDowell and Boyhan's amendment be accepted, we would be left with a commission which does not do the job we are setting it up to do. If it is to do the job, it will be appropriate from time to time to seek the assistance of persons with a range of skills on a short-term basis. For these reasons I will not accept the amendments.
This is about assistance and advice to the commission. The commission remains central. The consultant or the adviser will always be secondary. Any act undertaken on the part of the adviser will be to assist or to advise but it is the commission that ultimately makes the decision. It is the commission which will make that decision, having regard to the advice or assistance. Senator Norris and others have made particular play on the wording in section 11(8), "to do any other thing". This language, as Senators will be aware, having regard to the line-by-line scrutiny in which they engage daily, is inserted here to ensure that the functions of the consultant or the role of the adviser are properly circumscribed for the purpose of the Bill.
On the matter of the published selection procedures, all of the procedures and processes for a particular selection process for judicial office will have been carefully designed by the procedures committee, and we have not managed to debate in detail or scrutinise in detail the role, function and status of the procedures committee. When we do, much of the false smoke, as it were, that has been generated around this Bill will pass because the procedures committee is crucial to the process. The procedures committee will set the regulations that will be approved by the commission and published, and it will be perfectly transparent to anybody who wishes to engage in the process, whether as an applicant or a spectator. Any role for advice and assistance will be fully transparent within that procedure.
On the issue of the person versus the consultant or adviser, the idea is that the commission might and can engage the services of a person with appropriate experience as a temporary employee or under what might be a casual contract. Subsection (9) requires that any payment to such a person is subject to "the consent of the Minister and the Minister for Public Expenditure and Reform", which is a wise and sensible decision and oversight. The matter of consent is something that can be forthcoming or not, depending on the individual circumstances. The reason that the Minister must consent to the appointment of a consultant or adviser under subsection section 11(7)(b) is to ensure that there is a level of oversight of the cost of such arrangement, and I am sure that would be a matter of grave concern to Senators if it was otherwise.
I will give an example. The Legal Services Regulatory Authority is a statutory body, independent from Government, which was established under the Legal Services Regulation Act 2015. This important Act is accepted by everybody and passed through the Seanad. The independence of the Legal Services Regulatory Authority is very important. The equivalent provision in section 17 of that Act is not dissimilar to this and is subject to the approval of the Minister for Public Expenditure and Reform.
Senator Craughwell makes the point about giving information to applicants. I remind him and others of section 53(5)(h) later in this Bill which provides that procedures will have regard to "the need for good standards of communication with applicants for judicial office, and the provision otherwise of a good standard of service to them in respect of applications made by them under this Act". That is important in the context of Senator Craughwell's assertions or concerns.
I refer to section 62L in Part 2A inserted by the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015, important legislation which passed through this House not so long ago. Again the Policing Authority in certain circumstances is in a position to seek the consent of the Minister to appoint persons or consultants or advisers to assist in the performance of its functions in exactly the same way as is envisaged here. I did not have time to look back over the Seanad debate during which that Bill was being enacted but I dare say that if I were to, I do not think that I would find the level of concern that has been aired here both last night and this afternoon. I merely make the point that there is nothing new here and that it is something that has been regarded by Government as an important feature in ensuring efficiency and effectiveness, that of the expertise being available by way of a short-term contract of advice or otherwise.That is something the Government and the public service are engaging in for all the right reasons but, ultimately, I remind Senators that it will remain a matter for the commission itself, through its procedures committee, to develop best practice in dealing with applicants, including the information and the feedback that will be provided for them. This is contained in a later section of the Bill. We have given this due and careful consideration.
I am not really sure what Senator Norris means by there being three distinct persons involved in the process. It seems to me that it is quite clear that we are talking about persons as either consultants or advisers on a short-term basis. Those consultants may be persons or the advisers may be persons. Those involved will be either advisers or consultants in the same way as they are available, should they be required and should the Minister consent, in so far as the Legal Services Regulatory Authority is concerned or in the Policing Authority.
The Minister did address my question very marginally towards the end of his contribution. First, I congratulate him. He is fighting a sterling battle and he does it with a certain level of grace. I was delighted by his formulation - an "engorged bureaucracy". I will certainly remember that one and bring it out on occasion when required. However, he has not resolved the situation for me. I was not talking about persons, I was talking about three distinct entities. There is quite a separation between section 11(7)(a) and section 11(7)(b). I have taken legal advice on this and I am confirmed in my view that it means that the person with whom the commission enters into contracts is exempt from the consent of the Minister and could then go on to advise and assist the commission or provide an evaluation or an assessment.
I will not go on at any great length. The Minister says they are only providing an evaluation and they are confined to this, that they are not expected to do anything else, but nobody would expect them to do anything else. Could the Minister envisage circumstances, which I think would be rare indeed, where these consultants, advisers or professional people, have advised, evaluated or assessed that an applicant is unsuitable for the job, and the commission would go against that advice? It would be quite extraordinary. If a professional body said this person is unsuitable, I think it highly unlikely that anybody would go against that, so it does seem to me that they are playing a major role here.
I do not want to be in any way crabbed, but this is a very important section, and these subsections are of crucial importance as to how this commission is supposed to work. At last we have wheedled out of the Minister the suggestion that there will be a director and a small secretariat and that that is what the commission and the commissioner's office is to be. This goes back to the point I made earlier as to the kind of workload the commissioners are going to undertake and for what kind of remuneration they are going to be expected to carry out their evaluative functions.
It is all being done on a shoestring, which I have to say is deeply disappointing, because if this was to be something dramatically and radically different from the Judicial Appointments Advisory Board, JAAB, which was done on a shoestring within the Courts Service, then I could understand why we were told that this is a bright new age with a totally new approach, that this is something dramatic which the Minister for Transport, Tourism and Sport was prepared to die in the ditch for in the Government negotiations. We know now, however, that the JAAB, which as far as I know has one or maybe two officers servicing it in the Courts Service, is going to be replaced by a small secretariat. The person who now runs the JAAB is being dignified with the title "director" and he or she will be given a small secretariat and that is called a statutory office and then the Minister says that this amounts to the underpinnings of a commission. Now we are beginning to get a vague idea of how fraudulent the facade that is being created by this legislation actually is. It is nothing dramatically different in terms of resources. It is probably just a slightly elaborated version of the Judicial Appointments Advisory Board.
That said, the Minister has failed signally here to deal with the questions that were put to him at great length last night. We will have to stay here until we get answers. That is the whole point of a Committee Stage. We will not proceed to say yea or nay to this amendment or the section if it is amended until we get straight and upfront answers as to what is meant by all of this.
The Minister said that the provisions of these subsections are similar to section 17 of the Legal Services Regulatory Authority Act 2015. They are not. A couple of paragraphs are similar but what is provided here certainly is not mirrored in that legislation. The contents of subsection (8) are not mirrored in any respect in section 17 of the Act of 2015. The contents of subsection (8) are twofold. We really have to concentrate now on the wording of the subsections. Senator Norris is totally correct in saying that two categories exist under subsection (7), first, the capacity to enter into contracts and arrangements with any person and, second, the capacity, with the consent of the Minister, to appoint consultants or advisers.
They are separate functions and one of the distinguishing features between them is that a consultant or adviser would be appointed, which has a degree of permanency if one looks at subsection (10). It is for a defined period of time. That is one thing. The other is a contract which could be intermittent and come into existence or come out of existence and be for a week, a day, a year or whatever, as the commission may consider right. There is a distinction between an appointment which carries the subsection (10) implication and simply entering into a contract. The strange thing is, however, that either a contractual person, if I may use that phrase for somebody appointed under subsection (7)(a) or a person appointed as a consultant or adviser, whichever they come to be, can carry out exactly the same functions under subsection (8).
So one class of person can be there under a casual contract, and the other can be there as a consultant or adviser, with a subsection (10) appointment, but both of them can carry out the exact same functions under subsection (8), and both of them are deemed eligible and capable of carrying out either of those functions. Let us be clear about this. Senator Norris's point was 100% correct.It is not some piece of legal or interpretive pettifoggery. We are dealing here with the fact that under subsection (8), things can be done by people who are not members or employees of this commission and that this can be allocated either by contract to persons, which includes-----
-----limited liability companies, on the one hand, and appointed consultants or advisers. This is of huge significance because one then goes to the three things that are permissible under subsection 8. The first is in paragraph (a), which differs from paragraph (b). By the way, these functions have no parallel whatsoever in the provision for the Legal Services Regulatory Authority. If Members have their mobile phones with them, I invite them to take a look at those two provisions.
It would be very interesting to do so. In any event, these two functions are without parallel in the Legal Services Regulatory Authority and they go to the heart of the function of the commission. The first is to advise and assist the commission in its consideration of applicants at a preliminary stage in the course of the selection procedures. In this provision, it is to do two things, namely, to advise the commission and to assist it in its consideration of applicants at a preliminary stage in the course of the selection procedure. The commission will carry out its consideration of applicants at a preliminary stage but it will be advised or assisted by these contractual persons, consultants or advisers. How will this work out in practice? Presumably, based on the wording of subsection (8)(a), there will be a preliminary stage, which will be some kind of winnowing-out process that involves asking applicants whether they have practised for ten or 12 years, whether they are members of the Law Society of Ireland, whether their names are on the register of practising barristers held by the Legal Services Regulatory Authority or whether they are an Irish citizen. I do not know whether citizenship is needed to be a judge but I presume it is. In any event, basic screening for eligibility-----
I think it is diversity among the citizenry. There is to be a preliminary stage and there would have to be such a stage where people go through the applications to see whether applicants are starters or non-starters. I do not see why staff in the commission cannot do that. I do not see why one would want to bring in temporary staff or a company on contract or appoint an accountancy or HR firm to go through all the forms to carry out fairly basic searches as to whether applicants are eligible to be appointed. Why should this preliminary stage vetting process not be done by somebody under the direct control of the commission as a civil servant? What is wrong with this being done by a civil servant? I believe there is a good reason it should be done by a civil servant and there is every good reason a limited liability company, large partnership or large recruiting agency should not be contracted to do that kind of work.
That is the first stage in the process. In respect of the second stage, it is very important to differentiate paragraph (a) from paragraph (b) because they are clearly different things and in any legal interpretation of this section, they will be interpreted as distinct functions. Paragraph (b) allows such a contractual person, appointed consultant or appointed adviser to provide an evaluation or an assessment of an applicant's suitability for appointment that would assist the commission in making any decision in the course of carrying out those procedures. Those are the selection procedures referred to in the previous paragraph (a). Let us be very clear about what we are authorising by this wording.It is the appointment of a limited liability company, law firm, accountancy firm such as KPMG or recruitment agency, acting as a consultant to the commission, to provide an evaluation or an assessment of an applicant's suitability for appointment that would assist the commission in making any decision in the course of carrying out its selection procedure. That the commission should be able to delegate the function to a third party, be it a body corporate or an appointed consultant or adviser, the process of carrying out an evaluation or assessment of the applicant's suitability for appointment as a judge is unparalleled in other legislative procedures I have seen. It has not been heralded by anything that has happened to date, has not been spoken about publicly to date and has not been defended here in principle by the Minister because leaping on the lifeline I threw him, he immediately said that perhaps with the flood of District Court judge appointments, it would be worthwhile narrowing them down because they will not come every time. In case any Members of this House are under any illusion, this wording came in the original form of the Bill, as initiated by the Minister. This is not something that was put together in the heat of the furnace of the Dáil committee. This is genuine Department of Justice and Equality initiative and Office of the Parliamentary Counsel material that proposes to delegate the function of providing evaluations or assessments of applicants' suitability that would assist the commission in making any decision in the carrying out of the selection.
It clearly would not overrule the commission. Nobody is suggesting that but we are saying that if we adopt this measure, people who are seeking appointment to the High Court are implicitly agreeing to the proposition that not merely will the independent commissioners evaluate them, but that other parties under contract or appointment will carry out an evaluation of their merits or demerits as potential appointees. That is inexcusable and disgraceful. This is not just rhetoric. It is something the Irish public does not know anything about. Having come in here, as the Minister has done, and defended the integrity and independence of this institution in a very spirited and capable way, the Minister's Bill permits the evaluation function to be guided by the opinions of third parties in this way.
While the evaluation function will not be overridden, it does not get the Minister off the hook to say that it is purely assistance. If there is such an evaluation process, it goes utterly to the heart of this legislation that decent men and women seeking appointment to the Bench will be asked to be evaluated by third parties as to their suitability.The third parties are the persons, appointed consultants or advisers who are to provide evaluations of candidates' suitability. That is what is envisaged. I note that the Leader has some difficulty with it, but that is what this is intended to do. It is intended that there will be a class of contractors, advisers or consultants who will carry out evaluations of would-be appointees to the Bench. To look at the other side, if one is interested in becoming a judge, not only is one being asked to submit to the processes to which we will eventually come and the procedures in the procedure committee's statement of policy or whatever else, one is also being asked to submit to the potential evaluation of one's suitability by a person who is not even a member of the commission. That is wrong and shameful. It really is lazy-minded stuff which should not be countenanced. It marries with the matter I was raising with the Minister, on which I have not yet received any straight answer. I will reiterate the question and I am entitled to an answer.
The Minister cannot just keep hiding in the bushes of obscurity on this issue. What kind of money will be given to the people appointed to the commission? If they are to be paid €30,000 or €40,000, it will attract one kind of person and if they are to be paid €9,000, like the members of some semi-State boards, it will attract another kind. There is no doubt, however, that they will end up being rubber stamps, especially if they are confronted by so-called experts giving them assessments of people in writing to "assist" them in the process of selecting candidates. It goes to the heart of the effectiveness of the commission that we should understand the level of engagement that will be required of a commissioner, the remuneration to be given to a commissione, and the amount of a person's time that will be spent as a commissioner. It is not going to be like some idle local authority committee which may meet once a month or less and which looks at a few reports and files. It should not just state KPMG personnel think Senator David Norris is a good candidate but that they have come to the view that Senator Lynn Ruane is an even better candidate-----
The Minister has to understand the nature of the animal we are creating, the commission, will very much depend on the kind of person appointed to it. The nature of the kind of person who will look for appointment to it and who will be suitable for appointment very much depends on the commitment that will be expected from him or her. We know that the role is to be part-time, but "part-time" can have very different implications. A role can be part-time in the sense that it does not attract a full-time salary. As we all know, membership of the Seanad is a part-time function, but some of us know better than others.
I am making the point that we have to understand the function and very nature of the commission will be determined by the extent to which consultants do its work for it. Are they to "assist" and produce reports for it or will the actual commissioners be expected to do the work of evaluation themselves de novo? I am now thinking of real circumstances such as the appointment of somebody to be a member of the High Court. I was glad to hear what the Minister said about the three appointments made today. I was told about one of them at lunchtime. The man in question is an excellent appointee----
We agree on it, but the point I want to make is that someone in the position of practising barrister or solicitor who henceforth contemplates applying to the commission for appointment will be entitled to know who will be evaluating and scrutinising him or her before the process starts or will not be so entitled. As legislators, we are entitled to know what kind of person will be given this role in the evaluation of appointees or will be someone operating under an intermittent contract? What kind of person will be given this right under section 11(8)(b)? I am very clear in my mind that, until we receive straight answers on the involvement of commissioners, we should not pass the Bill and that delaying its passage is an act of friendship not merely to the Constitution but also to the people.
We need a straight answer to the question of what the people concerned are to be paid. I have no doubt that the Accounting Officer for the Department of Justice and Equality is making plans for the financing of the commission. If it is not included in the budget for next year, it will be included in the budget for the year after that. The Accounting Officer must have a clear idea of what the 17 members, other than those not entitled to receive any remuneration, are to be paid. She must have an idea of their terms and conditions on which they will be employed. She must have an idea of the extent of the personal commitment that will be required of them. If we imagine a graph, there is a trade-off between personal commitment and remuneration, on the one hand, and, on the other, the use of consultants to do all of the work for the commission in carrying out evaluations in order to "assist" its members in making appointments. That trade-off is crucial in determining whether the commission is worth anything at all. Are the commissioners to end up in a position where they will be given pre-heated and pre-cooked evaluations of persons applying to be High Court judges drawn up by individuals acting under contract or as appointed consultants or advisers to the commission? They will be responsible to no one for the way in which they will carry out their functions, except, perhaps, to the commission and - this is an important point - their prejudices, interests, attitudes and ideologies which could be all-important in determining or colouring their advice on the applicants' suitability for appointment. If we are not to know the answers to these questions, we should not be establishing a commission which will operate on this basis. As I said, there is a trade-off between the commitment that will be required of commissioners and the extent to which the consultants, contractors or advisers will be used because at one extreme of the spectrum the commission could become a complete rubber stamp and at the other it could be doing all of the work and relying very little on the consultants. One thing is very simple - the less the commissioners are to be paid, the more dependent they will bound to be on the paid evaluators. If that is where we are going, we are entitled, here and now in this House, to straight answers about the balance to be struck and not to be told, "It is for the commissioners. They are independent." They will not. They will not be independent when it comes to their own income. They will not be independent in the flow of work they will have to do. The only thing by which they will be driven in terms of their independence and finance is turning on and off of the tap of financial resources in considering whether to use consultants, with the consent of the Minister. I am deeply worried by this provision.
I said there were three aspects to subsection (8). There is the activity contemplated in paragraph (a) and the activity contemplated in paragraph (b). However, when Bletchley Park works out what the last paragraph actually means-----
Someone will have to decode the meaning of the following paragraph which seems to limit what can happen under subsection (8). It states, it "shall not enable the person [that is, a contractor], consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing".
The Bill states, "but shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing". It would be fine if it stopped there. The only thing it can do is set out in paragraphs (a) and (b) and it is very simple. However, after the words, "to do any other thing", the Bill adds, "(other than a thing which facilitates such performance)". If anyone asks what is the performance, it is that which facilitates the performance of the commission's functions in carrying out its selection procedures. The proviso, with the exception in brackets attached, needs to be analysed very carefully, but it seems that, if one reads the words in brackets, anything which facilitates the performance by the commission of its functions - the first line of subsection (7) - can be carried out by a contractor, a consultant or an adviser. If we arrive at that conclusion, we wonder what the text, "but shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing", actually means. It means that the contractor, consultant or adviser cannot do any other thing in addition to what is included in paragraphs (a) and (b) if it does not assist the commission to carry out its functions, which, removing the double negative, means that the contractor, consultant or adviser can do any other thing which assists the commission in the carrying out of its functions. That means that there are functions under paragraphs (a) and (b) and the last paragraph which I call the Bletchley Park paragraph, when one examines it, that enable and clearly authorise the contractor, consultant or adviser to do anything else that will assist the commission in the carrying out of its functions.
It is much more important than that. It would, for instance, enable the construction by the procedures committee of its policy documents. These tasks can be delegated to assist in the preparation of these things. Therefore, this wholly independent commission now becomes a brokerage for the services of third parties and nothing more. It will, of course, have to take ultimate responsibility for the recommendations it will make, but, under this section and these subsections, it is effectively being authorised to delegate huge swathes of its work to contractors, consultants and advisers, as may be required by it. That is where the camouflage of the commission has fallen away and we see it for what it is. It is a cut-price vehicle that is being used to carry out a function. The question of resources is doubly central to what the actual result will be, namely, the resources that will be paid directly to the commissioners for the work they are expected to do, at one end of the graph, and, at the other, the resources that will be available to them to delegate the evaluatory functions to others, subject to their taking of final responsibility in making their recommendations.
As I was saying before the quorum was called, it seems to me that this House is entitled to a clear picture of what the sponsoring Minister, the Department of Justice and Equality and the Government, on whose behalf this Bill is being moved, envisage will be involved in being a member of the commission, what remuneration will be offered to members and what kind of expenditure is envisaged for the appointment of contractors, advisers and consultants to assist the commission in carrying out its functions. I imagine there must be somewhere in the Department of Justice and Equality some sketch at least for the Department of Public Expenditure and Reform of what is needed in terms of cash to make this body function.
We are entitled, as I will continue to repeat until we get a satisfactory answer, to know what kind of remuneration the Department proposes to give to people who are commissioners. The role of commissioner is a highly responsible job. It is not the same as sitting at a board meeting of Aer Lingus or some such company and making decisions once a month. It is taking responsibility for the quality of our Judiciary and applying one's mind to making sure that the name of one person rather than another person is put on a shortlist of three names for Cabinet approval. That is not something which will be done lightly, easily or without serious consideration being given to the merits of all the applicants.
If the remuneration is €9,000 a year, which is €4,500 after tax for somebody who has reached the dizzy heights of the higher rate of income tax, one can bet one's bottom dollar that the consultants will do all the hard work and evaluations and the poor bedraggled commissioners will come to a meeting once a month where the lay chairperson will put before them a summary document, with the names of those whom the consultants have thought worthwhile. These will be the people who have gone past the first stage. The same consultants will no doubt have decided who has fallen at the first fence and who should be coming towards the finishing line. It will then be up to the commissioners to select as between candidates one, two and three. That is the dismal, pathetic role envisaged for these commissioners as a fig leaf to one Minister's desire that there should be a radical change.
If the remuneration is to be €9,000 or €4,500 after tax - if that is really what is involved - the commissioners will get €400 an outing if the commission meets once a month and approximately €130 an outing if it meets once a fortnight. If we are talking about that kind of money for important work of this kind and also authorising the evaluation process to be carried out by consultants, then this is an elaborate sham and should be condemned as such. I have no doubt members of the Judiciary, who will not be remunerated, and the practitioner appointees will be far more attentive than the lay people if that is to be the remuneration package for doing this important work. Will they end up earning less than the so-called consultants who will advise them on this matter? Is that what will happen? It will be very poor consultants who will turn up for a meeting of one or two hours' duration to be asked questions about their evaluations if the remuneration is €400. We are entitled to know what the Department of Justice and Equality intends awarding these people. Until the Minister can answer that question, he should not insult our intelligence by assuring us that it will all work out on the night and everything will be fine.
If it ends up that the net benefit to the commissioner for sitting and listening to this stuff is less than that received by the consultant who has pored over the documents and come up with an evaluation, we will know exactly where the real effort will be made and who will operate the real levers of power in this whole process. It will be the consultants. Remember that the people who will do most of the evaluation work will be the consultants, who will be appointed with ministerial consent only. Where is the independence in that case? It will have gone out the window.
I strongly urge the Minister to avail of the opportunity and shorten this debate by telling us what he envisages will be the remuneration of the proposed commissioners. Will they get €9,000, €20,000, €30,000 or €40,000 per annum or something in that order in order that the House can determine whether it should give them the functions it is proposed to give them or whether we are, in effect, giving third party contractors, consultants and advisers the steering wheel in this whole process and the function of making the important evaluation decisions in the first place?
I would like to hear an answer to the points I have just made. I also need clarity as to how this process will work. Will the Government learn the names of the applicants who were rejected?
That is a very simple question. The Bill, as currently devised, does not make that clear and seems to suggest the Government would not be told that. It is an alarming proposition that the Government would be given three names, graded one, two and three, and its members would sit down at the Cabinet table unaware that the most intelligent woman solicitor or the most brilliant senior counsel or legal academic in Ireland was on the list and was anxious to get the job but was rejected.The Government is entitled to know these things. Asking the Government to operate on the basis that it is a submarine without a periscope and that it only gets a limited message of three names graded one, two and three by the commission, without telling it that 25 other people were rejected and without disclosing those names, is deeply offensive to reason. At least the Judicial Appointments Advisory Board, JAAB, process, with all of its infirmities, tells the Government who was on the list. That is what I find worrying about this. I ask for answers to those questions.
Can I point out to the Minister that I have now had my view about the separation of the three entities and the implications that has for the Bill confirmed by my eminent colleague, Senator McDowell, who is a former Minister for Justice, Equality and Law Reform-----
I am a member of the Technical Group now, but forget that. I would hate to be accused of filibustering so I must remain absolutely focused on the Bill.
Senator McDowell, former Attorney General, former Minister for Justice, Equality and Law Reform, highly respected senior counsel and practising barrister, has said that I am 100% right and yet the Minister has not even said, as he has said to other Senators on other occasions, that he would look at the situation and review it. He is shaking his head now so it looks like he will not review or consider it. That is extremely regrettable.
On these advisers and consultants, it seems to me as the debate goes on that we will need a committee to investigate them, to make sure they are gender balanced, that they represent diversity-----
I also pointed out that one of the Sinn Féin representatives in the Dáil indicated that this would be a method of screening out people who are antagonistic to the IRA. That is clear political interference, it could not be clearer. I have to say that I am not a persistent critic of Sinn Féin as some people are in this House. To quote the Bible, there is more joy in heaven over one Shinner that repenteth than about all the other white sheep that are around.
On these professional advisers I will give an anecdote from my own experience of being on selection panels because of all of this agonising about whether people are qualified to be on a selection committee. I was on an interviewing panel for somebody to supervise a FÁS scheme we had in the James Joyce Centre in North Great George's Street. It must be 30 years ago. There were 47 applicants and one of them was the lady who is now my secretary and an exceptionally fine one. She was shortlisted to number three and we had all of these people who knew everything and were terribly qualified in assessing people and they chose this ghastly baggage who had a PhD and she was absolutely, totally useless. They ignored Miriam even though she was shortlisted. I eventually got Miriam-----
Yes. I will leave it at that for the time being but I would like to know whether the Minister will give any consideration to the distinction I have made of three distinct entities, not three persons - the trinity is the three persons in one God which as we know is quite a difficult theological concept to swallow. Is he prepared to give it any consideration or will he leave it to chance as to whether this is challenged in the courts on that basis?
The House should be aware of section 53(4). It reads that in the preparation of the statements referred to in subsection (1), which is a statement setting out the selection procedures and a statement of requisite skills and attributes - this is pretty central to the functions - the procedures committee, which is to be established, shall avail, not "may avail", itself of the advice and expertise of any consultants or advisers appointed under section 11(7) by the commission to assist it in the performance of its functions.
This is serious stuff and it should be considered. The procedures commission is under a statutory duty to avail of the advice and expertise of any consultants or advisers appointed by it under section 11(7) by the commission and those are people who can only be appointed with ministerial consent. That is what is in the Bill. It does not say "may avail", it says "shall avail". That means that it is to be guided by these commissioners in setting out a statement, which we have been told is central to the operation of this commission, setting out the selection procedures and most alarming of all, setting out a statement of requisite skills and attributes. Who are these consultants who will decide and which of them is qualified to decide what the statement of requisite skills and attributes is? Are they to be guided as a matter of statutory duty by external consultants in setting out a statement of the selection procedures? That is what is in the Bill and it really is a dog's dinner of a Bill. We are now coming to the point that I speculated on earlier, that these consultants and advisers were going to have a central role in determining what happens with this commission. We now know for a certainty that the commission is duty bound by statute to be guided by them in setting up its procedures and in determining what requisite skills and attributes are among judges and in preparing a statement of same.This is really important stuff. I have not studied the debates from the Dáil committee, and I do not know whether or not this was considered at length, but it must be considered here. I reiterate that we must, therefore-----
-----have a clear set of straight answers on this issue. It comes down to what kind of remuneration will be offered to the lay members of the commission. I want to hear this. If it is to be €9,000 then it is a joke. If it is €40,000 it is getting serious. I want to hear from the Minister, on behalf of the Government, what kind of remuneration will be offered to these people. As I have already said, €9,000 gross turns out at €4,500 net. Divide this into 20 or 30 meetings per year and it is money for which no consultant would assist the committee for an hour. I want to know how serious is the commission proposal and the absolute litmus test for this must certainly be how much money the Minister is willing to give to these appointees to the commission, before the Minister allows the Public Appointments Service to place advertisements in the newspapers asking for interested parties to come forward. I put it to the Minister that if he pays peanuts he will get a certain species of animal. If the lay members of the commission are paid less than consultants per hour for sitting around a table, then the consultants would be making the decisions. That is what would happen.
-----and I forgot to mention a particular concern I have, again, on section 11, subsection (9), of the Bill. It states, "The Commission may, out of the resources at its disposal, pay to a person, consultant or adviser referred to in subsection (7) such fees (if any) or allowances for expenses (if any) as the Commission may, with the consent of the Minister and the Minister for Public Expenditure and Reform, determine." There are quite a lot of qualifications there. Senator McDowell has said that if the lay members are paid €9,000 it is a joke. I have an even better joke; the Bill states "if any". That is a better joke than €9,000 because one is paying them sweet damn all. The Bill proposes that the commission may pay "such fees (if any) or allowances for expenses (if any)". It is envisaged, therefore, that the commission may pay them absolutely nothing.
It would be wonderful. On the other hand the Bill proposes that the commission may pay these fees, "out of the resources at its disposal". What are the resources at its disposal? They can only pay what they have in the kitty. If they do not have enough in the kitty to pay proper consultants then we are banjaxed from day 1.
There are a lot of problems with this question of payment. I do not suggest that the Minister is engaged in any deliberate bafflement or obscurantism. With all of this stuff and the consultants, advisers other persons, doodahs, whatnots and all the rest of it, it sounds to me as though we are giving a pretty good example of what, in the Minister's delightful phrase, could be characterised as an "engorged bureaucracy". I am greatly concerned at the question of payment. On the face of it it looks like we might toss them a few bones here and there or we might give them absolutely nothing whatsoever. I have had some contact with the world of consultants. I have yet to come across one who is prepared to do it for the love of the country. They do it for good, hard cash.
Then we have Senator McDowell and others intimating that it is going to be run on a shoestring. The fact is that there will be sufficient resources made available by the Minister for Justice and Equality and by the Minister for Public Expenditure and Reform, to ensure that the commission does the work required of it. I remind Senators that it is only the lay members of the commission and the members of the legal profession who will receive a stipend or expenses in any-----
I was criticised on the basis that this was an extraordinary amount of money for a body that would do very little. I was reminded of that by a senior counsel of some repute, in the Dáil I might add. Having regard to amendments made in the Dáil, and the fact that there would be less of a committee structure than we now have, I felt that it was reasonable to revise the figure downwards. This is the figure that I imparted to Senator Humphreys on the last occasion.
As with every other piece of legislation it will be a matter for the Minister for Public Expenditure and Reform and the Minister for Justice and Equality to determine the level of remuneration for those commission members. This provision is standard but the amount will not be hugely different to that which obtains throughout the public sector for attendance at commissions or board meetings.
I am not in a position now to give precise details of the sum that will be made available to the lay members of the commission, which will allow them to attend meetings to facilitate the nomination of some 50 persons per year for appointment.
I put it to Senators McDowell and Norris that in the context of the procedures committee managing a selection or recruitment process, it would appear to be logical and advisable the committee would have access to expertise in the form of an adviser or consultant who may be required to provide a certain level of advice on best practice in the circumstances. I do not see anything alarming or terribly unusual in that. I have cited other bodies for which an amount of expert advice can be made available from time to time, with the consent of the Minister.
The "person" versus consultant argument seems to have exercised Senator Norris. The main purpose is to allow the commission to engage expert advice in the matters of recruitment and selection. A "person" could be a person hired to provide advice on the basis of that person being a temporary employee, on a short-term contract or as an engagement for the time being - depending on the information sought-----
-----and depending on the type of advice that might be given.On the issue of consultants or advisers, their appointment is subject to ministerial consent, as has been quoted. They will provide that advice in such a way that the Minister will exercise oversight by giving sanction or otherwise. That is not unusual across the public service system.
Whether they are persons, consultants or advisers, no arrangement can be made to pay them, unless there is ministerial consent, not only from the Minister for Justice and Equality but also from the Minister for Public Expenditure and Reform. That is not an unusual practice or procedure.
I hear Senator Michael McDowell talk about a brokerage and delegation. Nothing is to be delegated. No function is to be delegated. The assessment of the person, consultant or adviser will be subject to examination by the commission and, obviously, to submission by it. It will be tested, probed, scrutinised and then either accepted or rejected by the commission. There is no question of any decision-making being delegated to any outside body, merely the provision of advice and expertise.
The point about the Legal Services Regulatory Authority and the Policing Authority is that both bodies - Senator Michael McDowell quoted selectively from the Act - are empowered to appoint consultants and advisers. I do not recall any great objection to these provisions in that legislation, yet it seems that grave offence is being taken by Senators at the inclusion of this power that may or may not be exercised but which can be exercised by the commission if it so decides. The purpose of the section is to enable the commission to seek advice or the engagement of a consultant to ensure expertise is available. I see nothing unusual in it. However, having listened to the debate for eight hours yesterday and almost two hours today, having regard to the debate being sparked and interpretations which have been construed liberally by Senators - interpretations that were never intended - I will look at it again. If there is an absence of clarity, I will be happy to provide for it on a later Stage.
I say to Senator David Norris that the engagement of a consultant or an adviser may only occur after the consent of the Minister to obtain such advice is sought.
To respond to the question asked by Senator Michael McDowell about transparency and the information that may be forthcoming to the Government, bearing in mind that this is an independent commission, we heard a lot of exercised commentary of a highly charged nature yesterday evening about GRECO, which has not been mentioned this afternoon.
The most important aspect of the engagement of GRECO is ensuring any commission, committee or structure will be independent of the Government and cannot be open in any way to a charge of what might be described as political taint or involvement.
This is an independent commission and the parameters surrounding the information that will be received by the Minister are clear. The Minister will receive the names of three persons, as provided for in the Bill. The Minister will receive the particulars of the recommended persons: information on their education, qualifications, professional expertise and experience and character, as provided for in section 43. Where applicable, the Minister will receive the particulars of the result of an interview or test that might be undertaken and a statement of recommendation setting out the reasons the commission is of the opinion that the person is suitable. I do not see circumstances in which the Government will be interrogating or probing the independent commission on a particular candidate who may, as Senator Michael McDowell said, be the most intelligent legal practitioner in the country. I do not see circumstances in which any Minister or the Government will go behind the legislation in terms of the names of the three persons received by the Minister which will facilitate the Minister in putting the name or names before the Government for approval or otherwise to go to the President in accordance with the Constitution. As I said on a number of occasions, nothing in the Bill will empower the commission to adversely interfere in any way with the constitutional prerogative of the Government in the nomination of persons for appointment by the President as members of the Judiciary.
That is what I have been worried about from the get-go. It means that the Government will receive three names in the order of the commission's recommendation and never learn who else was interested. It, therefore, cannot exercise its prerogative in separately advising the President that it thinks Mary or Joe Bloggs is the kind of person it wants and is head and shoulders above the three people named. It will never know that he or she applied to the commission and was unsuccessful. That is what is totally wrong. At least under the JAAB, the Government knew who the would-be candidates were and could take a look and ask, "What is wrong with so-and-so? They would be our choice."
Returning to the analogy of the submarine without a periscope, the Government will receive three names and will not know there are people who, in its view, would be far more suitable for appointment than the three in question. For instance, let us suppose that, from among the judges of the Court of Appeal and the High Court, there is to be a recommendation for appointment to the Supreme Court and the Government receives three names under this scheme. It may never know that Mr. Justice or Ms Justice Bloggs actually applied and wanted to be appointed but was turned down by the commission, with or without the skills of evaluators or whatever they call themselves, consultants-----
It may never know, but the Minister is arguing that the Government's prerogative remains unaffected.Any sensible Government confronted with a list of three people would send its attorney out to tap somebody else on the shoulder and say, "By the way were you not in the running, or if you are not in the running, would you consider being appointed by us because we are disappointed not to see your name among the names coming from the commission?" That is what will happen in all of this and it will not be unlawful. Good judges have been appointed without the involvement of Judicial Appointments Advisory Board, JAAB. It is no secret that the current Chief Justice was never involved in the JAAB process but he was invited by the Government directly to accept judicial office. Let us be clear about this. Those are the facts. Let us not delude ourselves that this system will work any differently. I deeply regret that, after a number of hours, the Minister is not prepared to give any indication of the terms of remuneration of the commissioners he will be appointing.
State boards cover a huge range, as the Minister knows. The chairman of one company and the ordinary members of some other companies can range in multiples of each other's remuneration. I deeply regret the Minister will not tell us that each commissioner will get remunerated at the senior end of State part-time appointments. If he is not willing to give them €30,000 or €40,000 a year to carry out these functions, he will get people who are there for the wrong reasons.
The Senator has asked this question on a number of occasions. Having been a former Minister, he knows well the level of remuneration that is available to persons across the State sector, many of whom do this work on a pro bonobasis, giving of their expertise and experience to the State, and they will continue to do so. The parameters we are speaking about, or the frame within which this is in, is something in the region of €8,000 going up to a ceiling of about €30,000. That is about as much as I can say at this stage about the level of remuneration.
Why can the Minister not give us an indication of which end of that spectrum it will be on? It would be simple for the Minister to say which end of that scale he would asking for the remuneration of his commissioners. It makes a hell of a difference if it is €8,000 because, after tax, that will be €4,000. If there are 15 or 20 meetings a year, that becomes a negligible sum of money compared with the consultant's remuneration for attending those meetings. That is at one end of the spectrum. I do not understand the reason the Minister cannot say that he would favour the €30,000 end of the spectrum. I fear, in reality, this is an elaborate edifice but that it will, in fact, be run in a financial shoebox.
I do not believe the people who will serve on this body, either as persons with legal experience representing both arms of the legal profession which will be represented on the commission, as the lay majority, or as the lay chair will say they will take the job but first they want to see what the payment is and how much they will get out of it. I do not agree with the Senator that the first thing people will say when they want to serve on this reforming body, with very important functions in the appointment of members of the Judiciary, is how much they are going to get out of it, how much they are going to pay in tax and how much money will be left that they can put in their back pocket. I reject any assertion that people will be motivated by money in terms of their service.
On a point of order, we have been talking for a long time but it has not been on what is proposed in amendment No. 29. I have sat outside the Chamber and tried to ignore that, but many of us have tabled amendments and want to be constructive regarding the Bill. I support the amendment proposed by Senator McDowell, but I have nearly been talked into not supporting it at this stage as the deliberations on it have gone on that long. Can we stick to the amendment?
Catherine Ardagh, Ivana Bacik, Mark Daly, Aidan Davitt, Robbie Gallagher, Alice Mary Higgins, Gerry Horkan, Colette Kelleher, Ian Marshall, Michael McDowell, Rónán Mullen, Gerald Nash, David Norris, Marie Louise O'Donnell, Grace O'Sullivan, Ned O'Sullivan, Lynn Ruane, Diarmuid Wilson.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Rose Conway Walsh, Martin Conway, Maire Devine, Frank Feighan, Paul Gavan, 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, Fintan Warfield.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Rose Conway Walsh, Martin Conway, Maire Devine, Frank Feighan, Paul Gavan, 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, Lynn Ruane, Fintan Warfield.
Please, can we have quietness in the Chamber? Amendments Nos. 32 to 45, inclusive, are related. Amendment No. 38 is consequential on amendments Nos. 33 and 36. Amendment No. 43 is a logical alternative to amendment No. 39. Amendments Nos. 30 and 32 to 45, inclusive, may be discussed together by agreement. Is that agreed?
Please, there are people in the Gallery and at the back using phones. If they want, I will adjourn for half an hour so that they can make their phone calls outside. There is not silence in the room. Senator Wilson has made a proposal, the Minister has not heard him and I can hardly hear him.
While the Senator is confused, I will formally welcome the former Leader of the Seanad, Mr. Maurice Cummins, to the Chamber. Our honourable and distinguished guest will note that not much has changed around here.
Does Senator Wilson want the amendments to be discussed individually?
Amendment No. 38 is consequential on amendments Nos. 33 and 36. Amendment No. 43 is a logical alternative to amendment No. 39. My notes are confusing, as they also refer to amendment No. 30. Amendments Nos. 32 to 45, inclusive, may be discussed together by agreement. When I put that question, Senator Wilson said he was not happy.
It is not confusing. If the Senators read the amendments, they will see that these are related. If we separated them, it would take us much longer to discuss them. We would only be repeating ourselves on each amendment for the rest of the night. They are related. If I am correct, some would actually fall if a Sinn Féin amendment passed. I do not see why they should be separated just because someone is confused.
Second, Senator Wilson said he was confused. I often find that, where there is a large group of amendments, it is very confusing, we go from one to the other and we do not know where we are at all, only to then be told that, because an amendment has already been discussed with this or that, a Senator has missed his or her slot.
To be fair, Senator Ruane raised a good point. There is no point in repeating ourselves ad nauseam on every amendment, given that there has already been such repetitiveness today. The officials who have grouped the amendments have done a fine job and performed a good public service, and we should respect them.
No, hold on a second. There is a good reason it must be put to the floor if the groupings are accepted. My understanding, traditionally, was if somebody objected, then they were dealt with individually but I do not want to split the House. I call Senator Ruane.
I understand. In terms of anything being confused, or not understanding what is being taken with what, we did not only get these groupings this morning; we have them over a week. We have debated this Bill for nearly a week. If Senators want to be prepared, in terms of the groupings, then they should have done this a week ago before entering the Chamber, instead of looking at the groupings now and saying they do not understand what is on the page, unlike the rest of us who have spent weeks studying the amendments. This is just about doing one's job.
The legislation is quite confusing. The convention is that one asks whether Senators agree to do something. If Senators agree, then it is agreed, and it usually is, but if it is not, then one says it is fine and one lets them vote. I do not think that there is a need for repetition but people want the opportunity to maybe come back in. It is very restrictive, in terms of a large group of amendments, if one is unable to come back in and ask a question and one is then told the amendment had already been discussed and one happened to miss one's slot, as Senators Norris and Wilson have outlined. Typically, if Senators do not agree, then people say they are unhappy and the amendment goes through.
As my colleague Senator Horkan said, this is a complex Bill. We are wasting time talking about this matter when we should make a simple decision. Let us deal with each amendment individually. I am not going to take up any more time and urge Senators to do so.
Before the Cathaoirleach continues, I would like to clarify a matter. I accept what my colleague, Senator Ruane, has said that Senators have had time to study the amendments. I stepped in here at short notice on behalf of my colleague, Senator Lorraine Clifford-Lee, who has had to go to another appointment. We have spoken about diversity. Surely diversity also includes confusion. If somebody is only after getting a brief and is faced with 13 amendments being grouped together then I think we are entitled to ask for amendments to be taken individually. However, I will accept the Cathaoirleach's ruling.
I am going to make a ruling on this matter. I am going to go with the normal circumstances. I overrule Senator Wilson's objections and the amendments will be dealt with together. Anyone who wants to speak on the amendments No. 32 to No. 45, inclusive, can do so in the one breath. The grouping stands.
I move amendment No. 32:
In page 12, to delete lines 35 to 37 and substitute the following:“(i) from time to time when requested to do so by the Minister, a selection process referred to in subsection (3) for the purpose specified in that subsection, and”.
I thank the Cathaoirleach and appreciate his assistance.
I will first speak to my amendment No. 37. My amendment seeks to strengthen the knowledge and expertise requirement set out in section 12(6) as it would require the Public Appointments Service to ensure that the people that it recommends, as lay people, have to among them as a cohort knowledge and experience of each of the matters outlined in section rather than as many as possible, as currently drafted. This would mean that each of the criterion listed would have to represented in the collective knowledge of the lay people. It would also mean that PAS would be unable to rely on certain criterion to the detriment of others ensuring a healthy balance of knowledge and competencies.
As the lay people are the mechanism, in this process, through which more diverse opinions and perspectives on judicial appointments are injected into the process, I would like to see each of the criterion in section 12(6) be represented as there is a good range of knowledge and experience there. I hope that the Minister will appreciate where we are coming from and accept the amendment.
I will briefly speak to amendments Nos. 44 and 45 in terms of the GRECO report that we all have had a chance to read. It seems that the main objections to the Bill in the report are as follows: first, the Judiciary was not consulted enough when the Bill was being drafted; second, the chair is a lay member; third, judges are in a minority on the commission; and fourth, the chair and members of the commission are accountable to the Oireachtas with all the concerns about the separation of power that that involves.
We cannot go back and change the consultation process for the Bill now. Let us be honest that the lay chair and lay majority are the subject of commitments given in the programme of Government so are not going to change at this stage. What we are left with is the role of Parliament in the commission's work, and I share some of the concerns expressed in the report. I do not necessarily see why the law people must be approved by the Oireachtas, as outlined in section 14(1). These people will be the majority members on the commission and will recommend who becomes a judge. They will get there by going through a process in the independent Public Appointments Service. Why should Parliament play an additional role in deciding who the lay members are? In practice, Senators approve the names of people for appointment to State bodies, and without any objections since I have been elected. However, we are concerned with the principle and I am unconvinced about its merits. The provision seems to inject parliamentary politics into a process that claims to depoliticise the judicial appointments process and, potentially, has negative implications for the separation of powers.
The issue of parliamentary oversight of the commission also arises in section 22, in terms of the chair, and I also have concerns in this regard. I would like to hear the Minister's rationale for drafting section 14 as is and I want him to explain why amendments Nos. 44 and 45 are unnecessary, if he is not accepting them.
Yes. Can I take it that we can continue to speak? For example, I want to speak about an amendment tabled by Senator Alice-Mary Higgins. I would like to have the opportunity to come back in and talk about other amendments later on. In other words, do I have the freedom to take the amendments myself? I can take them separately.
Yes. In a general way, I have tabled some amendments about deleting various things and so on, and it is to get rid of the lay majority and the law chairperson of the board.
Senator Alice-Mary Higgins has tabled amendment No. 32 that states:
In page 12, to delete lines 35 to 37 and substitute the following:“(i) from time to time when requested to do so by the Minister, a selection process referred to in subsection (3) for the purpose specified in that subsection, and”.
Her amendment replaces section 12(1)(b)(i) that reads: "from time to time when requested to do so by the Minister, a selection process referred to in either subsection (2) or (3), or both, for the purposes specified in either or both of those subsections, and..."
Her amendment restricts the selection process to "subsection (3)" because she apparently agrees with section 12(2) that states that the Public Appointments Service shall recommend a lay person for appointment by the Minister as chairperson following a selection process held by the service for that purpose. I fundamentally and strongly disagree with that notion. This is one of the key aspects of the Bill, in addition to the section that we have just dealt with where Senator McDowell sought to delete between ten and 15 lines. This, to my mind, is one of the key things.
In my opinion, by taking the line that I am taking in this matter, we are following the recommendations of the GRECO report that clearly suggested that the chairperson of the commission should be the Chief Justice. I tabled an amendment to that effect, so I can hardly be expected to accept an apparently innocuous amendment which at the same time - unlike what Senator McDowell said about a submarine without a periscope - has two barrels with torpedoes in them.If we were to accept this it would strengthen the situation whereby a lay person is chairperson, which is a situation with which I simply do not agree. I expect some of my colleagues also do not agree with it.
Amendment No. 30, proposed by Senator Wilson, appears to reintroduce one of the experience and knowledge areas lost in the Dáil amendment process which relate to the processes and procedures for making appointments to public office.
I am opposed to amendment No. 32 on the basis that the Government believes that the optimum method to independently select the lay person with the best mix and spread of skills, experience and expertise necessary to succeed in the job is through the specific selection process for the chairperson as conducted by the Public Appointments Services. We have discussed the Public Appointments Service in some detail. I am not prepared to accept the amendment.
Amendment No. 33 in my own name, which I will be moving, is identical to Dáil Report Stage amendment No. 27. Senators will be familiar with the amendments in the Dáil. There was a series of amendments which were not moved in the House. Amendment No. 33 is merely a technical drafting amendment. It is related to an amendment made on Report Stage to provide a new section 12(8) which provides a basis for the nomination of a member by the Irish Human Rights and Equality Commission, IHREC. Amendment No. 33 makes clear that references in section 12 to a lay person or lay members are references to the ordinary lay members or lay chairperson, except in section 12(8) which deals specifically with the member of the commission who will be exclusively and solely nominated by the IHREC.
Senator Craughwell's amendment No. 34 seeks to amend section 12 by removing the requirement of the Public Appointments Service to recommend a lay person for appointment by the Minister as chairperson following the selection process. We have already discussed the merits or otherwise of this set of amendments. I have made my opposition to them clear. In fact, this amendment is set against my own amendment No. 36, which addresses the reinstatement of a new section 12(4) which relates to precisely this process of selecting the lay chairperson.
I want to recognise what amendment No. 35 in the name of Senator Alice-Mary Higgins seeks to do, which is to preserve the lay chair policy. As I have already stated, the Government believes the optimum method to independently select the lay chair is through the Public Appointments Service. I am not minded to change that in any way. In any event, it seems the amendment does not fully achieve the purpose intended by the Senator since it removes and replaces the provision in section 12(2) regarding the conduct of a selection process and a recommendation by PAS but it does not seek to remove the requirement for PAS to organise the selection process for the lay chairperson as per section 12(1)(a). This would seem to suggest that PAS would have a role in the process whereby the commission selects its own lay chairperson. I am not sure if that is what is intended by the Senator's amendment. I am sure Senator Ruane can clarify that point for me. In any event, I am not willing to accept it.
I was replying to amendments Nos. 32 to 45, inclusive, and had commented on amendments Nos. 32 to 35. Government amendment No. 36 is desirable. Paragraph (b) of the subsection the amendment proposes to insert is important. It fills a gap in the Bill in terms of suitability requirements for the appointment as chairperson. Certainty and clarity are required on this point because this is an important position. We cannot leave the matter up in the air.
In regard to the position of chairperson, more particularly the manner of selection of the chairperson, the strong preference of the Government is that apart from his or her independence, specific requirements that are desirable are to be stipulated in the section that underscore the special position of the chairperson. I ask for the support of the House to ensure we have a fit and proper criterion and special suitability requirements that we anticipate the chairperson would have.
I will make a brief reference to Senator Ruane's amendment No. 37. The objective of the Senator's amendment is to ensure that, in selecting lay members, we do not miss out on any one of the six areas specified. I am sympathetic to that objective. However, while the intention is to ensure at the time of any given selection that all matters in subsection (6) have coverage, overall I am keen to leave the matter to the Public Appointments Service, PAS. I do not want to be overly prescriptive. I acknowledge the importance of the Public Appointments Service and the determination of the profiles of members vis-à-visthose matters. Rather than move the process in a direction that creates a sense that each individual will perhaps come uniquely from one particular standpoint, it will be a matter for the Minister and the Oireachtas, which will have resolutions in the matter, to be satisfied with the person brought forward from the Public Appointments Service process.
Government Amendment No. 38 is a drafting amendment to correct a reference which was in some way contradictory in the Bill as passed by the Dáil. It is consequential on earlier amendments Nos. 33 and 36.
I will make a brief reference to Government amendments Nos. 41 and 42, which are minor drafting amendments that are nonetheless necessary in the context of the Bill.
Senator Craughwell spoke on amendments Nos. 44 and No. 45, which is in the name of Senator Clifford-Lee. Members will see that the intention of the amendment dealing with the lay chairperson is that the chairperson of the commission will be the Chief Justice. We have discussed this matter in detail and I will not accept the amendment. Amendment No. 45 would delete the role the Minister has under section 14 in appointing a lay person as chairperson. That would reflect the provision Senator Craughwell has incorporated and Senator Wilson proposes, on behalf of Senator Clifford-Lee, providing for the commission to elect its chairperson. This also deletes reference to the appointment of the ordinary lay members, as recommended by PAS under section 12, in favour of a reference to its nomination under section 10. The purpose of this is such that I am not in a position to accept it.
I thank the Minister. I will touch briefly on a couple of the amendments I tabled. Amendment No. 32 is a technical amendment on the role of the Minister in triggering the selection of a lay person by the Public Appointments Service. Amendment No. 35 is more substantive and it may not have been entirely clear what my intention was. I suggested in this amendment that the members of the commission shall select a chairperson from among their membership who should be a lay person and, in making their selection, the members should endeavour to ensure that such a chairperson selected has both a strong legal understanding and a proven capacity to communicate in a clear and accessible manner. What I am attempting to do is build bridges between what has become a rarefied, separate and divisive discussion on the question of the chairperson and whether a person from the Judiciary should automatically be appointed to that role whether a person who would be appointed separately, with or without a ministerial role in that regard.I have attempted to ensure that the lay and judicial members of the commission have the independence to select a chairperson they believe suitable. The Public Appointments Service would have a role in that regard because it puts forward the members of the commission and it is to be hoped that one or more of its appointees may be suitable for the role of chair. Many commissions and boards select their own chair.
Amendment No. 35 proposes two criteria in regard to the selection of a chair. I am conscious that the criteria originally in place in that regard were removed by the Dáil. Even if the Minister is not happy with the process, I hope he will consider how he might incorporate the criteria I propose, which are that a chairperson - a lay chairperson in this context - would have "a strong legal understanding and a proven capacity to communicate in a clear and accessible manner". I am trying to ensure that the chairperson will be an effective bridge between committee members, able to understand the concerns and legal matters pertaining to the decisions made and issues raised by members of the committee who may be members of the legal profession or Judiciary, and able to communicate those issues and ensure they are understood and engaged with by the lay members and that the lay members are supported in expressing their views. This amendment could be a healing compromise in what has become a very divided discussion.
I am open to some variation on the proposal. For example, the Minister may think it preferable for the Public Appointments Service to suggest to the commission three persons from whom a chair would be chosen. For the Public Appointments Service to put forward one candidate is very limited and gives it extraordinary power. I would rather that it would put forward several candidates, one of whom would be selected by the commission. Alternatively, the chair could simply be chosen from among those selected as lay members of the commission by the Public Appointments Service. Another alternative would be to remove the requirement that the chair be a lay person. In such case, the members of the commission would select a chair from among their number. I am sympathetic to the idea of the chair being a lay person. An appropriate lay person would have the necessary skills for the role. If those skills were outlined as proposed by the amendment, it may allay the concerns of other Senators regarding the exclusion of judges from the role of chair. I have tabled the amendment and have indicated two alternative approaches to the issue. I am seeking a compromise amenable to the House which would allow us to move forward. The seeds of such compromise may lie in this amendment.
On amendments Nos. 39 and 40, I am concerned by the reference to "public administration" in terms of the skills required of a chairperson. The preceding reference to "administration" in the subsection should suffice. Administrative skills are important but I am concerned that the specific reference to public administration may result in public servants in the employ of a Minister or Department becoming lay members of the committee. I would rather that the reference to "public administration" be removed. However, if it is to be retained, it should stipulate that such persons must no longer be engaged in public administration. Senator Bacik also tried to address the issue of who should or should not be excluded from the role of chair and amendments Nos. 39 and 40 touch on that matter.
Section 12(6)(f) lists academia as a desirable area of expertise. Academia has a very wide meaning and could be construed as referring to university administration or work in any department of a university. Academic experience may be more desirable than having worked in academia in terms of the qualities sought in members of the commission. Amendments Nos. 39 and 43 propose that, instead of referencing academia, the Bill would reference "relevant areas of academic research including the law, or social policy". Legal academics should be represented on the commission. The law is framed by and frames our social policy in Ireland and, thus, a person with a background in social policy may have a very good sense of the impact of case and other law. The replacement of "academia" with "relevant areas of academic research including the law, or social policy" would be of benefit as it would allow a legal academic, sociologist or social policy expert who may have a very good understanding of the law and contemporary best practice in regard to the law, its administration, judicial practices and so forth to be considered for appointment to this important role.
Amendment No. 39 combines amendments Nos. 40 and 43. I would appreciate if the Minister were to indicate if he is willing to accept any part of the amendments.
On amendment No. 37, the Minister stated he does not wish to be prescriptive. However, how can we avoid a prevalence of lay members who qualify for appointment under subsections 6(e) or 6(f) or having several members from the world of commerce who may have a primary or master's degree in human rights or equality but no experience in terms of the implementation, practice or everyday understanding in society of human rights, equality, diversity, offending behaviour or rehabilitation? It is of great importance to have members with experience of those issues on the commission. What would be the Minister's view of a commission the lay members of which are appointed only under subsections 6(e) or 6(f)?
I do not accept the amendments for reasons I have already stated. I was earlier accused of engaging in a form of filibustering, so I will not repeat the points raised. The required skills mix of expertise and experience will be best acquired through a specific Public Appointments Service process which will garner all appropriate qualities. The optimum method to independently select the lay chair is through a specific process under the Public Appointments Service. I again reject any criticism of the Public Appointments Service. It has done a particularly good job in recent times and I have not heard any valid criticism of it. It is the ideal mechanism through which to achieve the Government commitment to acquire an independent lay chair of the commission.
The amendments tabled by Senator Higgins may be well-intentioned. She wishes to bring some structure to the existing provisions.In amendment No. 39, Senator Higgins seeks to remove the reference to "academia" in the first subclause and to insert a new subclause which seeks to nail down the academia reference to a requirement for experience in "relevant areas of academic research including the law, or social policy".
Amendment No. 43 seems to express the same intention regarding the same subsection by proposing the insertion of a reference to "relevant areas of academic research including the law, or social policy". There may well be some merit in what is sought to be achieved here and I would be happy to have a look at that in regard to amendment No. 43.
In amendment 40, however, the Senator seeks to remove the reference to "administration" as including public administration. The reference to "public administration" is included so that there can be no doubt that the Public Appointments Service can regard the experience of a lay candidate, a non-judicial candidate, in public administration as experience in that area. References were made in the other House to a suggestion that there may be attempts to have an overconcentration in the lay membership of retired public servants, which I rejected. I do not believe that to be the case. There is no desire to do any such thing. This is clearly evidenced by the wide range of areas of experience in business and other skills we are seeking with respect to the lay membership. There is no doubt in my mind, however, that there are many exceptional people with extensive public administration experience of varying kinds who may fall to be considered in any selection process but that selection process should be conducted by the Public Appointments Service for lay members of the new commission. They should not be excluded from the process simply because of their experience in administration. If that experience of administration is solely in public administration, an opportunity may be lost to facilitate the commission to draw on that experience. I am not in favour of accepting amendment No. 40 which seeks to remove the reference to "public administration".
I do not believe any critical reference was made either by Senator Ruane or myself to the Public Appointments Service at any point in our contributions lest there be any misconstruction on that. I outlined a few roles I thought it might play regarding the proposal I made. The Public Appointments Service plays a role in nominating the potential members of commission and that is reflected in my proposal. I have also put forward the idea that the Public Appointments Service could suggest a number of potential candidates for the chair, from whom the commission members would choose. Both my proposals relate to the Public Appointments Service and recognise there is an active role for it.
I appreciate the Minister will give some consideration to the question of areas of academic experience. I remain concerned about the issue of public administration. The inclusion of the word "administration" in my amendment allows for administrative experience of whatever form to be reflected, but the fact that "public administration" is explicitly mentioned in the section while other areas of administration are not seems to point to it being one of the specific areas of preferred skills that need to be incorporated. If the reference to "public administration" is to remain in the section, the Minister might indicate if he is open to being clear on the point that while persons may have had experience in public administration, they should no longer be in a position where they are answerable to a Minister or other political leader in that context. There may be scope for ensuring it relates to persons who have previous experience in public administration, if that reference must remain in the section. All of us are endeavouring to ensure that independence is both delivered and seen to be delivered in every aspect of this Bill.
I am not going to speak to the amendment but I want to put on the record that Senator Higgins and I have sat through all the sessions of this debate and we did not level a comment about filibustering at the Minister. He said he was not going to repeat what had already been said but that was not what we were asking of him. If anything, he has spent hours upon hours replying to filibustering while Senator Higgins and I have sat patiently for days waiting to speak on our amendments. We were only seeking to engage constructively on our amendments now that the filibustering king and his pals are out of the Chamber for a little while.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Fintan Warfield.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Alice Mary Higgins, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Lynn Ruane, Fintan Warfield.
I move amendment No. 35:
In page 13, to delete lines 4 to 6 and substitute the following:"(2) The members of the Commission shall select a chairperson from among its membership who shall be a lay person. In making their selection the Commission shall endeavour to ensure that any such chairperson selected has both a strong legal understanding and a proven capacity to communicate in a clear and accessible manner.".
I appeal to all Senators to look at this amendment.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Alice Mary Higgins, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Lynn Ruane, Fintan Warfield.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Lynn Ruane, Fintan Warfield.
I move amendment No. 39:
In page 13, to delete lines 34 and 35 and substitute the following:"(e) commerce, finance, administration, civil society, and trade union activity;
(f) relevant areas of academic research including the law, or social policy;".
I will withdraw the amendment and reserve the right to reintroduce it.
I move amendment No. 40:
In page 13, to delete lines 34 and 35 and substitute the following:"(e) commerce, finance, administration, civil society, trade union activity and academia;".
I will withdraw the amendment and reserve the right to reintroduce it.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Alice Mary Higgins, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Lynn Ruane, Fintan Warfield.
I move amendment No. 43:
In page 13, between lines 35 and 36, to insert the following:"(f) relevant areas of academic research including the law, or social policy;".
I will withdraw the amendment but reserve the right to reintroduce it.
We debated amendment No. 14 but I withdrew it with a view to resubmitting it on Report Stage. Amendment No. 14 provides for a clearer and more succinct manner of appointment of the individual members of the commission. We stipulated that one of the non-judicial members of the commission would be nominated for appointment by the Council of the Bar of Ireland and one would be nominated for appointment by the Law Society of Ireland. We believe that is a clearer way of providing for members who will represent the practising arms of the legal profession. We do not believe it is necessary to have an entirely separate section to deal with this matter.
Amendment No. 14 puts forward a clear outline of the appropriate structures for the commission. It also consolidates the principle of gender balance on the commission. Amendment No. 14(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."
I know the Government has provision referring to gender balance. Again, we believe that our amendment provides a cleaner way to provide for all the issues associated with the appointment of members to the commission in one section. We have tabled amendments Nos. 86, 87, 92 and 92 that we will reach later. They refer to gender balance requirements in the nomination of the candidates for Judiciary. In our view, it is very important to have further provisions on gender balance and there is a need to ensure gender balance in the Judiciary at that point as well. We see this as part of a package and that is why we oppose section 13.
I would be loath to cross swords with Senator Bacik. I know that what she is attempting to do is in the interests of gender balance. What she is effectively suggesting is that the Bar Council should not nominate one person but two persons.
-----because there is no suggestion in the section and there is no amendment to the section that we have not already discussed. It is important Standing Orders are applied in this debate, if the Acting Chairman does not mind me saying.
Before doing so, I wish to say to the Minister that I appreciate that this has been a long day. Members are entitled to make contributions under this section and he will have an opportunity to respond to their comments. I would appreciate if he would address his comments through the Chair.
By way of assistance, the reference that Senator McDowell is making is to my amendment No. 14(2), which states:
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.
We have incorporated a provision on gender balance into the overall scheme and provided for it in amendment No. 14. I said the amendment had been debated and I reiterated that I withdrew it in order to resubmit it on Report Stage.
I merely make the point that the reason we oppose section 13 is that we had incorporated a fuller provision on the appointment of members from the barristers and solicitors profession on to the commission, through our amendment No. 14. We contend that our amendment would have rendered this section superfluous because this section provides specifically and only for the appointment of a practising barrister and practising solicitor as members, and it does not include the gender balance reference that I think Senator McDowell was objecting to.
I think I actually did know what I was talking about. I think that what Senator Bacik is saying now, very clearly, is that the reason that she is opposed to this section is that she has a scheme, which she has withdrawn on Committee Stage but proposes to reintroduce by way of a Report Stage amendment-----
-----which will have the effect of requiring every nominating body to come forward with a candidate of each gender, so that in the end the result will be gender balanced. The Minister will appreciate that if she simply rolled over on this particular section and said that it could remain part of the Bill, it would be inconsistent with that ambition, on her part, because it would allow a singular nomination from the Bar Council and a singular nomination from the president of the Law Society. That is all I was saying. I think I was bang on point in understanding exactly what was happening. I do not think that I was, in any sense, trying to reopen territory that had been decided, on the contrary. What has been suggested by Senator Bacik is entirely consistent.
I am in favour of gender balance but I believe the Bar Council and its chairperson are entitled to put forward a person they trust, in terms of this matter.Achieving gender balance in their heads is a matter for them. By the same token, achieving gender balance in the Law Society is a matter for it. We cannot really ask the Bar Council to be telephoning the Law Society to ask if it is putting a man up or if it should put up a woman. If gender balance is to be achieved, it should be achieved among the appointment of laypersons other than those directly appointed by these bodies. These bodies are going to select somebody presumably on merit. They are going to make their own decision on their own nominees to put the best person forward. They cannot really be looking over their shoulder at other bodies or querying whether those other bodies are putting forward people of different genders to make up their minds about who they put forward to represent them on this body.
I suggest that there is a problem here, even doing my best and leaning over backwards to support Senator Bacik in her ambition to have gender balance on the commission itself. If corrective measures are necessary at the end of the day, having regard to what has been done by the human rights commission, the president of the Law Society, the Free Legal Advice Centres and the Citizens Information people, it is unfair to ask a professional body that is putting somebody forward ex officioto represent its interest to put forward two people and to give the Minister the discretion as to which of them goes forward onto the commission, just to achieve gender balance. It is unfair on the Bar Council to tell it to propose two people, one of whom the Minister will reject. That is not going to happen in respect of the Judiciary. Whoever happens to be the president or the Attorney General under the Bill as it stands will all have their assigned genders. It is unfair to ask the two professional bodies effectively to run two horses in the race and give the Minister the right to choose between them. I have a difference with Senator Bacik on this matter which cannot be disguised, well-intentioned as I can fully see that she is.
There is a reference at a later stage to a person appointed by the Bar Council or a person appointed by the Law Society. It seems that the text should make it clear whether the appointment is to be made by the chairman of the Bar Council or the president of the Law Society, or whether it is the nomination of the body in question. Later in the Bill an assumption seems to be made that it is not the chairperson's personal nomination but that of the body over which he or she presides, and likewise in respect of the president of the Law Society. Will the Minister consider amending the legislation at this or a different point to make it clear that it is somebody who is representing the Bar Council or nominated by its chairman or nominated by the president of the Bar Council? It should be a nomination of the council of the Law Society and the Bar Council itself, not just somebody nominated by the presiding officer of either of those institutions.
There is merit to what she says. I have to disagree with my learned colleague, Senator McDowell, in the issue of the Bar Council and the Law Society not having to put forward candidates of either gender and then giving the Minister discretion. No man knows it better than Senator McDowell in respect of the issue of gender quotas in political life. To have a system that leaves it mostly up to men who are already on the deciding bodies to pick somebody leads to unconscious bias and they end up picking their own.
By way of example, when I was asking people in Kerry to name five public parks, buildings or roads named after women, they were unable to do so. The reason was that everybody who picks the names of the public parks are men because they are all men on the committee. Until such time as half a committee is made up of women, the men will unknowingly bring the bias of picking their favourite footballer or politician, who will also be a man. The bias therefore continues.
There is merit in giving an opportunity to the Government to pick between two people, one of each gender. The Minister would make a decision based on that. I made this point yesterday on a different section. The bodies that make the nominations are themselves an issue because they are mostly made up of the same groups of which Irish society is always composed. In respect of the Bar Council and the Law Society, the decision-making bodies, how many of their members are men and how many are women? The Senator may correct me but I think it would be predominantly men. They would, therefore, unknowingly perpetuate the situation whereby the person put forward is most likely to be a man. I think it is a fair compromise by Senator Bacik, who is not seeking to bring forward gender quotas as such.
She is proposing to bring forward a gender option providing that there would be a choice and that it would not be left up to the Bar Council and Law Society to pick only one nominee. That is where this section is relevant. If the amendment tabled by Senator Bacik were accepted on Report Stage, although I do not think we would agree with all of it, I would certainly see merit in the requirement to nominate two people. That is where section 13 does not contribute to the gender equality that we should be aiming to achieve in this and all legislation.
While the Bill is indeed suspect in its origins, we must nonetheless deal with it by putting forward reasonable amendments and proposals. We must try to make a silk purse out of the sow's ear we have been bequeathed. I understand the Minister's point but there is merit in what the Labour Party and Senator Bacik have proposed in respect of the requirement for better gender balance achieved in a reasonable manner.I believe Senator McDowell missed the point. It is not the case that the Law Society would be ringing the Bar Council and asking the gender of members it would be putting forward. Under the amendment put forward by the Labour Party they would both be required to put forward one member of each gender. One would assume the nominees would be of equal capacity and have equal knowledge of the law and that it would therefore be up to the Government to decide between the two. It could end up that all the appointees could be of one gender or other, but it would certainly give a better chance of there being more voices at the table representing 54% of the people in the country. That 54% of people are not represented in an equal manner on any number of State boards, private enterprises or Government agencies. I commend Senator Bacik for bringing forward her proposed amendment, which is very reasonable and in which I hope the Government will see merit.
I will very briefly respond to the comments made by Senators McDowell and Daly. In response to Senator McDowell, with respect it would be relatively easy for the Bar Council, the Law Society and indeed the other bodies included in amendment No. 14, including the Irish Human Rights and Equality Commission and so on, to nominate both a man and a woman for appointment. I do not see any difficulty with that. As Senator Daly said, we have seen the success of gender quota legislation in the political sphere. There really is no difficulty in this.
Our amendment No. 14 clearly sets out that the Government would appoint members of the commission with regard to the objective that no fewer than five members would be women and no fewer than five would be men. The Government would have the choice of a nominee of each gender put forward by the different bodies, including the Law Society and the Bar Council. As I have said there is a coherence to that proposal in amendment No. 14 which we do not believe is reflected in the Government's scheme in sections 10 and 13 and the other sections.
The final point to make is that there is also somewhat of a concern about the way in which section 13 is drafted, to which Senator McDowell referred, in that it requires the chairperson of the general council of the Bar of Ireland to nominate a barrister as a member of the commission and the president of the Law Society of Ireland to nominate a solicitor. Our formula in amendment No. 14, which again is an alternative, is better in that we suggest that the members be nominated by the council of the Bar and by the Law Society, rather than by the individual president or chairperson. That is a better and more democratic means of nomination.
Well, just in case. There is merit in what Senator Bacik is proposing. I request that the Minister look at it again and perhaps come in with some of his own proposals on Report Stage. There is merit to it and I cannot see why the various agencies could not just nominate a man and a woman. That would be in keeping with the spirit of trying to achieve equality in these types of situation. In fairness to the Government, there has been a significant increase in the number of female representatives on State boards in recent years. That is because a genuine effort has been made to advance that proper appointments system. I would suggest that there is merit in developing this proposal somewhat. Perhaps the Minister would be good enough to look at that.
If I make no other point in the course of this entire process that has any merit and that would attract any support from the draftsmen, could I draw the Minister's attention to sections 19(1)(f) and 19(1)(g)? Section 19(1)(f) refers to a member nominated by the Law Society of Ireland being struck off the roll of solicitors and section 19(1)(g) refers to a member nominated by the chairperson of the general council of the Bar of Ireland being disbarred by the benchers. In one case the Bill refers to somebody nominated by the Law Society itself and in the other it refers to somebody nominated by the chairperson of the Bar Council, whereas sections 13(1) and 13(2) clearly suggest that the members should be nominated by the president or chairperson of the respective bodies. I agree with Senator Bacik that it would be preferable if the Bar Council did this corporately because the chairperson is sometimes in a minority on these bodies.
It could be an exercise of simple patronage. Likewise, if the president of the Law Society is to be given the right to make a nomination without the council of the Law Society at the very least agreeing to the proposal, there would be a problem. It appears that sections 19(1)(f) and 19(1)(g) differentiate between somebody nominated by the Law Society as such and somebody nominated by the chairperson of the Bar Council. It should be a corporate nomination in both cases. The Minister should consider simply saying that the general council of the Bar of Ireland shall nominate a practising barrister to be a member of the commission, that the Law Society of Ireland shall nominate a practising solicitor to be a member of the commission, and that the Minister shall appoint each of the persons nominated under those subsections to be members of the commission. That would at least be much more consistent. The incongruity in sections 19(1)(f) and 19(1)(g) would be avoided.
If Senator McDowell thinks that the chairperson of the general council of the Bar of Ireland is going to go ahead with his own agenda of his own volition and make an appointment to this commission without reference to the council, he is more naive than I ever thought he was. I feel similarly as far as the Law Society is concerned.
This provision is identical in wording to that in the Act that established the Judicial Appointments Advisory Board 20 years ago. The only difference is that there is now a reference to the chairperson where there was a reference to the chairman. I know that does not fulfil the gender requirement proposed by Senator Bacik in amendment No. 14, but any suggestion that either the chairperson of the Bar Council or the president of the Law Society is going to act in a personal capacity or without reference to the membership is ludicrous. As such, I do not intend to enter into the debate because it has no bearing on reality.
If it might satisfy Senator McDowell, on Report Stage we could say that the chairperson of the general council of the Bar of Ireland shall nominate a practising barrister as a representative of the general council of the Bar of Ireland, and do similarly in respect of the Law Society, in order to ensure that a president for the time being would not be encouraged to act in a personal capacity by the ludicrous suggestion of Senator McDowell. I certainly do not intend to enter into any further debate on this issue. It is likely that the section will be opposed. Here we are in Seanad Éireann and, hour after hour, fewer than half of Members are voting on these amendments to what is the most dramatic and important legislation that has hit this House for years according to the Senators. Less than 50% of the membership is turning up to vote.
Let us be clear about one thing. This House has sat long and hard to consider this legislation. It sat on a Monday, which is very unusual. The only reason that was proposed was the internal imperative in the Government to assure one particular member of the Government, to the greatest possible extent, that this legislation would be dealt with before the summer break.That is the only reason. The only reason for the fall-off in voting is that Members have engaged in pairing arrangements because they are sick and tired of the long hours allocated for the taking of this Bill without breaks, or half-hour breaks for meals, imposed at one remove by dictate of a member of the Government who demands that the Bill be dealt with as a matter of urgency, which it is not. It is not a matter of urgency that it be dealt with now. It is, of course, a matter which requires our attention in detail. The Minister is fraying slightly at the edges at having to deal with the detail. In that context, I ask him to refer to section 19(1)(f).
How can section 19(1)(f) and (g) be appropriately drafted in the light of the express terms used in section 13? There is an anomaly. The Minister does not want to enter into debate on this matter because perhaps he is getting weary. If he is, he might at least suggest he will address the anomaly on Report Stage, whenever it takes place in the House.
The Members who have come to the House should know that the Minister has suggested we should consider abandoning the debate owing to an absence of interest in the debate among Members of the House. I am sorry that I have had to call them here to show that they are interested in the debate. I asked the Minister to indicate whether he proposed to amend section 19(1)(f) in order that it would correspond with section 13.
I do not accept that there is an anomaly. I am quite satisfied that both the chairperson of the General Council of the Bar of Ireland and the president of the Law Society of Ireland act at all times for and on behalf of their associations in the context of their role as chairpersons. I do not see how that can conflict in any way with the representative of the Law Society of Ireland being the member referred to in section 19(1)(f) and the representative of the chairperson of the General Council of the Bar of Ireland, as evidenced by section 19(1)(g), being one and the same person.
That is pure obstinacy. It is strange that one person is described as a member nominated by the Law Society of Ireland whereas another person is described as a member nominated by the chairperson of the general council of the Bar of Ireland. I do not see why there is a different phraseology relating to the two different people.
I cannot understand how there could be any doubt, but Senator McDowell has a doubt. As I indicated earlier, and I am sure the point was not lost, lest there be any doubt, section 13(1) could read, "The Chairperson of the General Council of the Bar of Ireland shall nominate a representative of the General Council of the Bar of Ireland." Similarly section 13(2) could read, "The President of the Law Society of Ireland shall nominate a practising solicitor as a representative of the Law Society of Ireland to be a member of the commission."
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Fintan Warfield.
Amendments Nos. 46 to 52, inclusive, are related and will be discussed together, by agreement. Amendment No. 47 is a physical alternative to amendment No. 46; amendment No. 49 is a physical alternative to amendment No. 48, while amendment No. 51 is a physical alternative to amendment No. 50. Is it agreed that the amendments should be discussed together? Agreed.
I move amendment No. 46:
In page 14, lines 27 to 29, to delete all words from and including “the” where it secondly occurs in line 27 down to and including “meeting” in line 29 and substitute “the acting Chairperson shall be a member who holds judicial office in accordance with seniority”.
Section 15(3)(b) outlines that at a meeting of the commission, "if and so long as the chairperson is not present or if that office is vacant, the other members of the Commission, as the case may be, who are present shall choose another one of its lay members to be chairperson of the meeting". This is part of the process of rubbing the judicial nose in it. The Chief Justice will be present and the chairperson is unavoidably absent. The President of the High Court will be present, as will the President of the Court of Appeal, the President of the District Court and the President of the Circuit Court. There will also be a barrister and a solicitor present. This is a statement to the effect that none of them may take the chair in the absence of the chairperson. It is part of a vindictive and insulting approach to the Judiciary instigated by one member of the Government. If it is to be a collegiate body, a member of one group is not even to be allowed to take the chair in the unavoidable absence of the lay chairperson and it is to be prohibited by law, what is the reasoning behind it? It has been designed to split the group into two bodies and, effectively, set them against each other. I strongly believe there is no excuse for it whatsoever. If there is to be a lay chairperson, that should be taken as a given. We have not yet passed the legislation, but if it ends up with this, why, in the absence of the lay chairperson due to illness or whatever other reason, should it be the case that none of the lawyers present can be allowed to act in the place of that person? It is ridiculous, vindictive and nasty in its tone. It is insulting to senior law and constitutional officers of the State that they are prohibited from acting in the absence of the chairperson of the commission, that anybody, no matter who he or she may be, an act instead of them as chairperson. What is the excuse for this? What is the rationale for it? Why is this being done to the Judiciary? It is disgraceful and slightly stomach churning to think that it is being inserted into the law. If the Minister had any respect for the Constitution, he would at least accept that the Chief Justice who is a member of the Presidential Commission in the absence of the President could act as chairperson, even casually, at a meeting of the commission. These are high constitutional offices of State. The people appointed to them take an oath to be impartial, uphold the law, be fair to all people and uphold the Constitution, yet the Bill shoves their nose and grinds their face in it and states they are unsuitable, even on a casual and intermittent basis, ever to chair the meeting of a body at which they are present. It is a statement of distrust, disqualification and semi-concealed contempt that the people concerned are told that somehow they are not trusted by these Houses to function in the absence of the lay chairperson, even as his or her stand-in.
Why is this being done? Who really wants it to be done? Is there anybody in this House who actually wants it to be done, including the Minister? Does he really want to say that at a meeting of this kind a group of senior officials appointed under the Constitution to hold high constitutional office is somehow not to be trusted or considered to be unworthy or disqualified from acting in the temporary absence of the chairperson? This vindictive, nasty streak, which, unfortunately, colours the legislation from beginning to end, which explains its motivation and is clear in its intent indicates to the people concerned by way of statutory insult that if, perchance, the chairperson misses a meeting, he or she cannot ask any of them to act in his or her place. That is so wrong and indefensible. It makes no sense whatsoever and is part of a pattern of repetition of this insult across the remaining sections of the Bill because it does not simply apply to this measure, it also applies to the procedures committee and in a number of respects.
One of the most extraordinary aspects of the legislation is section 15(5) which states: “The quorum for a meeting of the Commission shall, unless the Minister otherwise directs, be 9 members, 5 of whom shall be lay members”. There are 17 people on the commission and the majority of nine members, five, must be lay members. If fewer than five lay members turn up for whatever reason - one could have five or six judges present, with the person representing the Bar Council and solicitors - the meeting cannot proceed.Who thinks up these silly, petty, little points? Only a vindictive and nasty mind could. Unfortunately, appeasing that kind of mentality is what is happening here. Why should a meeting of the commission at which, for whatever reason, only four of the seven or eight laypersons turn up be invalid and have to be abandoned? It is only because one petty, little mind is determined to incorporate in statute form an insult directed at the Judiciary at large. Why would it be that, if the Chief Justice, the Presidents of the Court of Appeal, the High Court, the District Court and the Circuit Court, two representatives of the professional bodies and four others - that is 13 - turned up, the meeting would be invalid because only four of them were lay people? There is something very wrong with that.
There is also something illogical about it. We would not do it anywhere else. I have sometimes heard at committee meetings relating to this House a suggestion that the Opposition should provide part of the quorum. That is one thing, but to say to the majority who turn up that it is an invalid meeting because there are not, for example, four members of Fianna Fáil or three members of Sinn Féin present is an absurdity. However, that is what is being proposed in this legislation.
I find this deliberately offensive to the Judiciary. I see no reason for the Judiciary to be treated in this vindictive way. It may well be that, for some casual reason on some casual occasion, the numbers will slip to four lay people out of eight. It is entirely predictable that something like that could happen. To say that the whole meeting must be abandoned because someone has a flat tyre, bringing the total lay membership below five, is grotesque. No one could rationally defend this proposal, yet we are being asked to give it the status of law. The only rationale for it is that the other people could not be trusted to be fair or decent when acting in the absence of at least five lay people. Even though they are in a clear minority in such circumstances, the fact that they are in a minority of fewer than five means that the whole meeting becomes invalid.
Sometimes, I despair of the irrationality of this legislation. The only solace I get from it is this: I am confident that a time will come between the passing of this Bill, if it contains these obnoxious provisions, and its enactment that a decent Government, one that is not controlled in the way this one is and is not required at the instance of one member to be vindictive and nasty in its legislation, will take a second look at these provisions and pass a quick amending Bill to bring rationality and decency to the judicial appointments commission. I hope that that set of circumstances emerges. I see the sparring between the two major parties and people talking about general elections in the offing. I noted the Acting Chairman's remarks when he was out of the Chair as to why that should not happen in the short run. I accept his logic, but whenever the circumstances arise, as I am confident they will, and the vindictive source of this insulting attitude to the Judiciary no longer holds sway in the corridors of power, I hope that this Parliament will have the good sense to clear out all of the nasty debris from this legislation, make it fair and reasonable and send a message to the Chief Justice and the other Presidents of the courts that they are not second-class citizens and are to be trusted, and that the people believe that, when they took the constitutional declaration of office to uphold the laws and to be fair and impartial in the discharge of their judicial functions, they will act fairly and impartially as chair of this body if it came to be that it was appropriate and was the will of this body that one of them should chair it.
I will not push the matter any further. At this stage, I would like to hear the Minister's defence for the quorum provision. This provision is absurd and will be affected by accidents and car crashes. The Government will be waiting for a recommendation one day but will not get it because four of the eight lay members of the commission will, for some reason, not be available to make a decision and the whole commission will be inquorate. It is grotesque. Why would any sensible person do this? In some of the coverage that I saw, it was interesting that the Minister for Transport, Tourism and Sport, Deputy Ross, told the newspapers that he had a personal interest and input into this Bill. The signs are all over it; malice drips from every section of this Bill. I believe-----
I am sorry, but I am only going by the public record. No one in his or her right mind - I certainly include the Minister, Deputy Flanagan, in that context - could believe it was fair or proper to say that there should be nine members as a quorum, of whom five should be lay members. If ten members turn up and four of them are lay people, the meeting will dissolve. How ridiculous is that? Only someone who was overpowered by a desire to achieve a particular outcome would insist that it be part of this legislation.
I agree with Senator McDowell. The idea of only having a layperson as chair when the chairperson is absent is ridiculous. What the Senator is saying is that legal scholarship, knowledge and rigour are to just sit there and be silent because there can only ever be a layperson in the chair. I cannot believe what I am hearing.
I suggest to the Minister that we are calling quorums every five or ten minutes because my good colleagues in Fine Gael, whom I have admired for the past seven years, are not uninterested, but embarrassed by aspects of this Bill. They cannot say that, though, as they have loyalty, which I understand. Embarrassment is the reason they are not attending. It is not out of lack of interest in this great legislation that the Minister believes will turn the tides of Ireland.
At the outset and because I did not know, I asked what clear waters this Bill was coming from, but it is actually coming from muddy waters. It is not coming from any kind of openness or any rigour of response that the public needs. Effectively, it is saying that the appointment of the Judiciary is so questionable that we must appoint advisers, consultants and commissions to get around it.Instead of correctly putting lay people forward to oversee the election of the Judiciary, which I would not be against, it has become a convoluted one-man band. Because of that, it is not sitting well with many colleagues in Fine Gael, who will not say they find it quite embarrassing and disingenuous. Nonetheless, they find it nasty and do not really want to be associated with it.
I have not heard from the Minister, Deputy Ross, where is the evidence for the Judiciary's inability to do its job and I have not found that evidence in anything I have read - I do not know where it is. I have been sitting here for the last three days, as well as last week, listening to this. I find it extremely embarrassing. I was listening to big arguments about diversity which actually ended up being the triumph of sociology over scholarship. Scholarship, rigour and experience were rarely mentioned. It was all sociological rubbish coming out about badly paid teachers in badly paid departments in I do not know where. It is ridiculous.
I have serious frustrations about it. Senator McDowell is making complete sense. It is not right to silence rigour, knowledge and scholarship because one can only choose a lay person. The Minister should do something about it or accept the Senator's amendment. That is a general point. I will come back to more specific points later.
I imagine this would normally be a matter for the Minister to put in by regulation and statutory instrument. To see the procedures of the commission enshrined in legislation suggests a lot of thought has been put into this in terms of making sure, at all costs, that the lay person is the chair. The requirement for a quorum in our own rules comes under Standing Orders and is not laid down in any legislation. As is often the case with many organisations, it happens by way of regulations rather than being enshrined in the legislation governing the organisation. However, the Bill states that five of the nine members present have to be lay members in order to have a quorum.
I want to deal with the amendments in the grouping. Amendment No. 46 seeks to substitute the phrase, "the acting Chairperson shall be a member who holds judicial office in accordance with seniority". Again, this goes to the idea behind the amendment of Senators McDowell, Boyhan and Craughwell, which is that the chair would have a knowledge of the law but also of the legal profession and the requirements therein. My colleague, Senator Clifford-Lee, supports amendment No. 47, which states, "In page 14, line 29, to delete "lay"", which as it stands requires the member to be a lay member. Amendment No. 49 seeks the deletion of, ", 5 of whom shall be lay members", and addresses the assumption that the wisdom lies with the members of the public on the commission, not the members of legal profession. Amendment No. 51 in the name of Senator Norris seeks to delete all words in page 15 from and including ", the" in line 6 down to and including "determines" in line 8." Senator McDowell might clarify whether he is supporting that amendment. Amendment No. 52, in the name of Senators McDowell, Boyhan and Craughwell, seeks the deletion from page 15 of all words from and including, ", the" in line 14 down to and including "determines" in line 16."
I believe this goes back to the heart of the issue. The detail contained in the Bill, most of which should be under schedules or ministerial powers, takes a lot of the power away from the Department to draft what would be reasonable procedures of the commission. Of course, these measures are highly prescriptive and, again, are set with the idea that the legal profession must be a minority at all times.
Section 15 states:
(1) The Commission shall hold such and so many meetings as may be necessary for the due performance of its functions.
(2) The chairperson shall fix the date, time and place of the first meeting of the Commission which shall be a date no later than 3 months from the establishment day".
Again, this type of prescription would normally come under regulations. To state, "so many meetings as may be necessary for the due performance of its functions", means there is no limit to the number of meetings that could be called. If a meeting is called and there is no quorum, does everyone still get paid? If there are 365 meetings, does everyone still get paid? There is no limit to the number of meetings and, at the same time, no requirement with regard to how many meetings should be called. Should there be at least one a year or three? There is no minimum or maximum requirement, which leaves the issue open to the abuse of the chair who, obviously, would be a lay person according to the legislation provided for here.
The fact the procedures of the commission are so prescriptive leads to there being very little possibility of tweaking them as it becomes apparent some of the more detailed proposals, even those contained within section 15(5), might need to be changed. Ultimately, it could be found the system is unworkable. My concern with regard to the taxpayer is that there is no limit but I also have a concern that there is no particular requirement that there should be, at the very least, an annual general meeting and the changing of the chair. Perhaps that is dealt with elsewhere in the Bill and perhaps Senator McDowell might be able to inform me in that regard. I am sure we will come across it when addressing other sections.
I am very pleased to have the opportunity. I would say to Senator McDowell that we have, once again, from the master of hyperbole and drama, the idea that a meeting cannot be properly conducted unless it is conducted by a member of the Judiciary.
I do not accept that at all. Neither do I accept that this judicial commission, with a non-judicial, non-legal chair and a non-legal majority, is showing contempt for the courts and contempt for and distrust of the Judiciary.I reject that entirely. We are back to the garage man analogy of last week, and the doomsday scenario that due to a flat tire or car crash, this body will not be able to function. I reject that entirely.
I point out the importance of the judicial, legal and other members of this commission. To suggest that judges do not have any role to play, are being silent, or will not have an opportunity to engage fully on this commission is simply wrong and I reject it. On the suggestion that because somebody is not in the chair, he or she cannot make a contribution, I merely point to this House. It is the function of the chair to make sure everybody has a say and his or her submission, observation, experience and expertise are fully acknowledged. We have, following an amendment that I made in the Dáil, the full participation of every branch of the courts at commission level, including the Chief Justice and the presidents of the Court of Appeal, High Court, Circuit Court and District Court, all of whom, as Senator McDowell stated, are influential persons. To suggest that they are in some way being sidelined because they cannot immediately take the chair if the chair does not turn up is offensive to the work and status of the commission. Of course the work can proceed in such a circumstance.
This is merely a facility in the Bill to ensure we preserve a key plank of Government policy, namely, that there will be a lay and non-legal majority of persons who are not judges, with a non-judicial chair. It is important that we carry through on that principle in every aspect of the Bill and do not accede to what Senator McDowell wishes to do, namely, bring the Judiciary in through the back door in the event that somebody does not turn up. It is not envisaged that people will get flat tires or crash in dramatic circumstances on the way to a meeting of the appointments commission. In the event that, for some reason or another, a person has a double-booking, as often happens in this House, there is provision for the commission to be chaired by a very competent person, namely, one of the non-judicial members. That does not in any way equates to silence or is in any way offensive to any member of the commission, all of whom will pay an important role in this and will only be appointed and accepted to be members of the commission following a rigorous process. I will not accept the amendment.
We are merely following through on an important principle in the legislation, that is, that we continue to have the proceedings chaired by somebody other than a judge. That is by no means to say that the influence, expertise and qualifications of all of the judicial members, who will sit around the table at the commission, will not be fully acknowledged. Senator McDowell indicated this provision was in some way motivated by malice on the part of an unnamed person here. If that was the case, this section would be unique and unprecedented. I refer the Senator to the position in Scotland and the Judicial and Courts (Scotland) Act 2008, which specifies that during any period when the chairing member is for any reason unable to act, the functions of the chairing member "may be carried out by another lay member" which is to say another non-judicial or non-legal member. That is exactly what is envisaged under this Bill once that person is approached by either the chair, in the knowledge that the chair is for some reason indisposed, or indeed by the board itself. This provision is not motivated by some form of malice to inflict offence on members of the Judiciary. Members of the Judiciary will play a vital role on this commission.
The Senator's amendment is in contravention of one of the fundamental principles of the Bill. When I hear Senators Marie-Louise O'Donnell and McDowell suggest that because someone is not in the chair, that person will be, as a consequence, silenced. Nothing could be further from the truth-----
We are merely following that. To suggest that, in the event of the non-legal chair being absent, the sky will fall in on the proceedings because one of their lordships will not be automatically entitled to take the chair is simply wrong. They will continue to play a vital role irrespective of whether the non-legal chair is present.
The Minister resorts to a facile and ridiculous defence of this proposition. He ascribes to me and Senator Marie-Louise O'Donnell the sentiment that we are saying that a judge must be a chair. We have never said anything of the sort. If the Minister, who is a skilled lawyer and advocate, thinks he can get away with saying that we believe the sky will fall unless these bodies are chaired by a judge, that is simply false. We have never made that argument.
If we put into legislation that the chair must be a layperson and then go on to say that, in the absence of that lay chairperson, the group which meets in the absence of that person cannot select from among their number the person they think is best qualified to chair their meeting and must exclude anybody with any legal knowledge, whether as a judge or legal professional, that will be a wholly unnecessary, redundant, and vindictive restraint.That is what it appears to be. There is no other explanation for it.
I bring the Minister back to section 15(5) which states: "The quorum for a meeting of the Commission shall, unless the Minister otherwise directs, be 9 members, 5 of whom shall be lay members." Why should a meeting with 12 people in attendance cease to be capable of discharging its function because only four lay members turn up on a particular day?
Why should that happen? It is wrong that it should happen. If we were saying that lay people should be prohibited from turning up, that would be one thing but if, for whatever accidental reason or series of reasons, five people who are lay members cannot make a meeting, and that is five out of eight-----
In those circumstances, 13 members of the commission could be sitting in a room. They could have nominated one of their members to be chairperson who will have a vote and a casting vote and, even then, they are told the meeting cannot proceed because lay members are insufficiently represented.
Let us flip this coin over to its other side. Why is there not a minimum representation of legal people required to make a meeting quorate? Why should a meeting not be invalid where only the lay people turn up and for some reason the lawyers do not? What is the underlying bias and prejudice in this legislation? It is to copper-fasten and nail to the ground the idea that the legal members on this body are, in effect, second class citizens-----
-----who are incapable of discharging certain functions and incapable of being counted simply as members of the commission to form a quorum. That amuses me. If the House were to provide that Senators from the agricultural panel would not be capable of chairing in the absence of the Chair, would not be counted for a quorum or something like that, the injustice of it would be clear to us. It would not be a statement that only Senators from the agricultural panel should chair the Seanad. It would be simply that they were being relegated to second class status on a body which is supposed to be collegiate.
I have a funny feeling that the sum total of all of this will be that the lawyers on the commission will form an effective majority because they capture one or two of the members who are lay members. They will say that because the Minister, Deputy Ross, was so vindictive towards them, once they have one ally in this entire process, they will dominate it. That is clearly open to them as a response to being insulted collectively in this way. They might say, "We are, together, the second class citizens - the helots - in this regime and if we have one ally from the other side, we will assert our rights consistently and coherently as a group." Would that be a good outcome? It would not. Even if it was accepted as a good idea, and I do not believe it is a good idea, to have a lay chairperson by definition, surely after that we can drop the idea of reducing the legal members of the commission to second class citizen status.
When we get on to the next section we will realise that even the smallest committee has to have a lay majority and a lay chairman, for whatever purpose. It is stupid and defies belief that the majority cannot set up a committee unless they rule it with one of themselves as a majority member and insist that the composition of the committee is also a lay majority. I despair at the lack of reason in this provision.
I would have thought that if the Houses of the Oireachtas were to nominate a lay person to be chair and that person is specially mentioned in a resolution of both Houses, in the unavoidable absence of such a person to act as chairperson, the great majority of Members of this House would have no objection whatsoever to the Chief Justice or even a practising solicitor taking the place of the nominated lay person at a meeting for the afternoon. I do not believe that if we all had a free hand to decide what would happen in such circumstances, we would waste legislative time finding out which persons cannot sit in the chair on such an occasion.