Seanad debates
Wednesday, 11 July 2018
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
10:30 am
Denis O'Donovan (Fianna Fail)
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I remind members that Amendments Nos. 46 to 52, inclusive, are related and may be discussed together.
Jerry Buttimer (Fine Gael)
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This debate must conclude at 6.45 p.m, if not previously concluded.
Denis O'Donovan (Fianna Fail)
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The debate shall not be concluded at 6.45 .p.m. It shall be adjourned at 6.45 p.m.
Michael McDowell (Independent)
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I thought I had made the point, and that I had made it sufficiently often and at length to convey my opinion, that the provisions of section 15, insofar as they purport to exclude the chair being taken on any occasion or at any committee of the commission by somebody who has legal experience, is unnecessary and vindictive. I will not put the matter any further.
David Norris (Independent)
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There does seem to be a clear bias against members of the legal profession. It is a quite extraordinary situation. I will leave it at that for the time being.
Michael McDowell (Independent)
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I have no objection to amendment No. 53, in the name of the Minister, which excludes the payment of expenses to the judicial officeholders. I just wanted to indicate that I have no problem with that, in case there was any doubt about that.
Tá
Catherine Ardagh, Ivana Bacik, Lorraine Clifford Lee, Gerard Craughwell, Gerry Horkan, Terry Leyden, Ian Marshall, Michael McDowell, David Norris, Marie Louise O'Donnell, Grace O'Sullivan, Ned O'Sullivan, Diarmuid Wilson.
Níl
Colm Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Martin Conway, Maire Devine, Frank Feighan, Paul Gavan, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, Neale Richmond, Fintan Warfield.
Michael McDowell (Independent)
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I move amendment No. 47:
In page 14, line 29, to delete "lay".
Tá
Catherine Ardagh, Ivana Bacik, Lorraine Clifford Lee, Gerard Craughwell, Gerry Horkan, Kevin Humphreys, Terry Leyden, Michael McDowell, Jennifer Murnane O'Connor, David Norris, Marie Louise O'Donnell, Ned O'Sullivan, Diarmuid Wilson.
Níl
Colm Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Martin Conway, Maire Devine, Frank Feighan, Paul Gavan, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, Neale Richmond, Fintan Warfield.
Ivana Bacik (Independent)
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I move amendment No. 48:
In page 14, to delete lines 32 to 33.
Tá
Catherine Ardagh, Ivana Bacik, Lorraine Clifford Lee, Gerard Craughwell, Gerry Horkan, Kevin Humphreys, Terry Leyden, Michael McDowell, Jennifer Murnane O'Connor, David Norris, Marie Louise O'Donnell, Ned O'Sullivan, Diarmuid Wilson.
Níl
Colm Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Martin Conway, Maire Devine, Frank Feighan, Paul Gavan, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, Neale Richmond, Fintan Warfield.
Michael McDowell (Independent)
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I move amendment No. 49:
In page 14, line 33, to delete ", 5 of whom shall be lay members".
Tá
Catherine Ardagh, Ivana Bacik, Lorraine Clifford Lee, Gerard Craughwell, Gerry Horkan, Kevin Humphreys, Terry Leyden, Michael McDowell, Jennifer Murnane O'Connor, David Norris, Marie Louise O'Donnell, Ned O'Sullivan, Diarmuid Wilson.
Níl
Colm Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Maire Devine, Frank Feighan, Paul Gavan, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, Neale Richmond, Fintan Warfield.
Gerry Horkan (Fianna Fail)
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We must adjourn at 6.45 p.m.
Michael McDowell (Independent)
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After an extensive effort to amend section 15 and make it more sensible, we now come to consider what it looks like. It provides as follows:
(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.
I find it difficult to understand why such a time limit has been put in. It is extraordinary that the chairperson would not convene a meeting less than three months after the establishment day. It goes on:
(3) At a meeting of the Commission—
(a) the chairperson shall, if present, be the chairperson of the meeting, or
(b) 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, [which includes the judicial and legal members] who are present shall choose another one of its lay members to be chairperson of the meeting.
It is extraordinary that a majority of people, who may be lawyers, are obliged to choose which of the lay people they want to be the chair of the meeting. The people who are there in the absence of the chairperson cannot choose anybody else to be the chairperson of the meeting. The significance of the chairperson being a lay person is emphasised by subsection (6), which states:
(6) Where there is no consensus on a question at a meeting of the Commission, the question shall be determined by a majority of the votes of the members of the Commission present and voting on the question, and, in the case of an equal division of votes, the chairperson shall have a second or casting vote.
The curious thing about this provision is that it means the lay persons would, theoretically, have a majority, even where there is an equality of lay and non-lay people present. It makes one wonder why a red-line issue was put in place about a majority of lay people being on the commission. This provision gives a lay majority via the second, or casting, vote of the chairperson. The song and dance about the necessity of having a lay majority on the commission is undermined by this provision. If the Bill had been drafted to give an equality of numbers as between lay and non-lay members, the lay people would have an effective majority by virtue of having a lay chairman. I wonder why we went to all the bother about a lay majority when there was always to be an effective majority, in the event of a division of opinion, in favour of the lay members present.
It is not to be assumed for one minute that the lay members will be a cohesive group or that the lawyers and judges present will be cohesive and of one mind on any issue. It is fanciful to believe there will be a bloc on one side or another on the issues that arise.It is much more likely that the commission will operate on the basis of an ad hocexpression of views on each subject, regardless of whether a person was a lawyer or judge or a lay person selected in the manner provided for in the Bill, whatever that ends up being. It is unlikely, if they were just dealing with the merits or demerits of an individual, that there would be unanimity on either side in terms of a block of lay persons and another of legal people. When one imagines that the lawyers are effectively confined, in every situation as far as the Bill can have its way, to being a permanent minority no matter what way the issue goes, unless the lay persons divide among themselves - considering that this is the apparent aim of the Bill, it does occur to me that the one occasion on which all the lawyers decide to oppose something will be when the lay persons are going to do something very foolish indeed.
Charles Flanagan (Laois, Fine Gael)
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This is not the purging of the lawyers. That is a complete exaggeration.
Jerry Buttimer (Fine Gael)
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Senator McDowell should write a novel.
Gerry Horkan (Fianna Fail)
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Senator McDowell, without interruption.
Michael McDowell (Independent)
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I am just making the point that so much care has been taken that even if somebody for some reason is in attendance, the casting vote can never go to a lawyer. That is an extraordinary provision to put in if there was an equality of votes as to whether-----
Jerry Buttimer (Fine Gael)
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The Senator is filibustering. He was part of the Government that blocked Members of the Houses of the Oireachtas from sitting on boards.
Gerry Horkan (Fianna Fail)
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Senator Buttimer will have a chance to come back in. Senator McDowell, without interruption.
Michael McDowell (Independent)
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Hold on a second. What boards are you talking about?
Gerry Horkan (Fianna Fail)
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Through the Chair.
Michael McDowell (Independent)
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I do not know what the Leader is talking about.
Jerry Buttimer (Fine Gael)
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The harbour boards. That was the Government you were part of.
Lorraine Clifford Lee (Fianna Fail)
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That is ridiculous.
Michael McDowell (Independent)
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Through the Chair, I have to tell the Leader that I always had misgivings about the ending of the dual mandate.
Jerry Buttimer (Fine Gael)
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You still went along with it, though.
Michael McDowell (Independent)
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I often think that one of the slightly ludicrous side effects of the ending of the dual mandate-----
Charles Flanagan (Laois, Fine Gael)
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This amendment is becoming a side effect.
Michael McDowell (Independent)
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I am only responding to the Leader's question.
Gerry Horkan (Fianna Fail)
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We could go back to having that system and could all be back on councils, but anyway.
Michael McDowell (Independent)
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The point was that Senators were entitled to the same service from a local authority with respect to a constituency in which they geographically lived as a member of a local authority would be. That always struck me as an anomaly.
Jerry Buttimer (Fine Gael)
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The Senator wants to get rid of us altogether. He is going round the houses now.
Michael McDowell (Independent)
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I sometimes think that this and the other House would have been strengthened rather than weakened by having members of local authorities sit in the Houses as opposed to other things.
Jerry Buttimer (Fine Gael)
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I agree with you, but your party brought it in.
Gerry Horkan (Fianna Fail)
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On section 15, please, Senator McDowell, in the remaining minute.
Michael McDowell (Independent)
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We have to be relevant and I want to be relevant.
Charles Flanagan (Laois, Fine Gael)
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Relevant or redundant.
Michael McDowell (Independent)
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There is one point I do want to ask the Minister about. Subsection 15(5) says the quorum for the commission shall, unless the Minister otherwise directs, be nine members, five of whom shall be lay members. Is the Minister entitled to select a different number than nine, permanently or temporarily? Can he issue a general direction that the quorum is going to be four?
Gerry Horkan (Fianna Fail)
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I ask Senator McDowell to report progress.
Michael McDowell (Independent)
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It is my pleasure to do so. I will give the Minister time to think about these circumstances so he can give a direction.
Gerry Horkan (Fianna Fail)
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He will have plenty of time.
Mark Daly (Fianna Fail)
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There was very little progress.