Michael McDowell (Independent)
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There are a number of aspects of section 15 which I dealt with on the previous occasion and I do not propose to repeat myself. Subsection (5) 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." I am interested in hearing the Minister's response to my question. If the Minister gives a direction that there would be less than nine members, is his legal advice to the effect that he must always have a lay majority in a quorum or could he specify otherwise in certain circumstances? For example, could he direct that eight members shall be sufficient for a quorum and make no direction as to the lay membership of the quorum?

Charles Flanagan (Laois, Fine Gael)
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This is an area we dealt with at some length in July. Without going over ground that was pretty well covered, I stress the importance of the lay majority in terms of decision making. In the context of the the composition of the committee, in order to ensure that the business is quorate the committee will at all times be required to have a lay majority.

Michael McDowell (Independent)
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I know that is what the Minister wants to do, but I am just wondering whether it is a requirement to do that. Is it his view of this section that one would be required to have a lay majority for a quorum or is it just a policy issue?

Charles Flanagan (Laois, Fine Gael)
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It is a policy issue but in terms of the practical engagement at the meetings, it will be required of the chair to ensure that there is a lay majority of members present in the context of decision making.

Michael McDowell (Independent)
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In those circumstances I will simply reiterate my objections to the requirement that the chairperson should be a lay member and that a deputy chairperson should be a lay member. It seems to me that it is not necessary that that should be the case but we dealt with it fairly exhaustively on the previous occasion.

Niall Ó Donnghaile (Sinn Fein)
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For clarity in terms of the record, the Sinn Féin group may have voted incorrectly. However, it would not have made a difference for me, thankfully, looking at the numbers.

Paul Coghlan (Fine Gael)
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I did not hear the Senator because there was not order. What did the Senator say?

Niall Ó Donnghaile (Sinn Fein)
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I cannot believe you are asking me to say it again. I wanted to correct the record.

Paul Coghlan (Fine Gael)
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We cannot hear up here.

Michael McDowell (Independent)
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The Senator said his diminutive group may have voted the wrong way but it would not have made any difference.

Niall Ó Donnghaile (Sinn Fein)
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Succinctly put by my colleague.

Gabrielle McFadden (Fine Gael)
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Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Michael McDowell (Independent)
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I move amendment No. 50:

In page 15, lines 6 to 8, to delete all words from and including "of" where it secondly occurs in line 6 down to and including "determines" in line 8.

Kevin Humphreys (Labour)
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Due to confusion with two Senators voting the wrong way on this occasion and the previous vote where there was some confusion over how Sinn Féin was voting, I am calling a walk through vote.

Paul Coghlan (Fine Gael)
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The Senator is not a teller.

Ivana Bacik (Independent)
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Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Paul Coghlan (Fine Gael)
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Amendment No. 51 is in the name of Senator Norris. The amendment cannot be moved as Senator Norris did not give permission to anyone to move his amendment and he is not present.

Michael McDowell (Independent)
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I move amendment No. 52:

In page 15, lines 14 to 16, to delete all words from and including ", the" in line 14 down to and including "determines" in line 16.

Paul Coghlan (Fine Gael)
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We are moving to amendment No. 54 to section 17.

Ivana Bacik (Independent)
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Section 16 has not been agreed to.

Paul Coghlan (Fine Gael)
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I thought the Senator said it was agreed to. I was told that it was and declared that it was agreed to. Nobody objected.

Ivana Bacik (Independent)
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I objected to it.

Paul Coghlan (Fine Gael)
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We had moved to section 17 when the Senator objected. I am sorry.

Amendments Nos. 54 to 56, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

Charles Flanagan (Laois, Fine Gael)
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Amendment No. 17 relates to a member of the commission ceasing to hold judicial office. Amendments Nos. 53 to 56, inclusive, are identical to the amendments tabled on Report Stage in the Dáil. The numbering is coincidental in the series of amendments that at the time the Ceann Comhaire ruled could not be moved for procedural reasons. Amendments Nos. 54 to 56, inclusive, as they appear before us, are consequential on the addition, as members of the commission, of the President of the Circuit Court and the President of the District Court and extend the standard provisions relating to cessation of judicial office and replacement to the two presidents. Section 17 will provide that when the Chief Justice, the President of the Court of Appeal, the President of the High Court, the President of the Circuit Court or the President of the District Court ceases to hold such office, their membership of the commission shall also cease. Amendment No. 54 ensures all five posts are covered by these requirements.

Amendment No. 55 adds two new subsections to section 17 and, in effect, replicates for the President of the Circuit Court and the President of the District Court the replacement arrangements in the case of cessation of office. In respect of each of the five courts, therefore, the most senior or ordinary judge will replace the president until such time as a successor in that judicial office is appointed.

Amendments Nos. 54 and 55, taken together, provide in a more consistent way, with the existing subsections (2) to (4), inclusive, for the arrangements needed under section 17. Undoubtedly, as it is an improved drafting, subsections (5) to (8), inclusive, are no longer necessary and amendment No. 56 merely deletes them.

Michael McDowell (Independent)
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It occurs to me that this would be a necessary provision and that the amendments the Minister is making are acceptable as tidying up amendments. No matter what view one takes of the commission, these provisions would have to be in place. It is hard to see how they could be opposed on their merits, even if one has strong reservations about the fact that some of the officeholders are deemed to be ineligible to be chairperson of any of the committees of the commission or the commission. Subject to whatever Senator Ivana Bacik will say, I do not see any basis on which to oppose the amendments.

Ivana Bacik (Independent)
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Like Senator Michael McDowell, I do not believe there is any reason to oppose the amendments. There are, however, some inconsistencies later in the language used in different sections.I am looking at section 19, in particular. I will make the point when we come to that section. It is a technical point about a Bill, of which many of us have been highly critical for being internally inconsistent. We have had a long debate on the issue. I will raise certain issues related to drafting later, but I do not have an issue with amendments Nos. 54 to 56, inclusive, which generally are tidying up amendments.

Gerry Horkan (Fianna Fail)
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If amendment No. 57 is agreed to, amendment No. 58 cannot be moved. It has already been discussed with amendment No. 13.

Michael McDowell (Independent)
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I have no objection to amendment No. 57.

Michael McDowell (Independent)
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I note that section 18(2) states: "Where a member of the Commission referred to in subsection (1) dies, resigns, is removed from office or otherwise ceases to hold office the casual vacancy so occasioned shall be filled in like manner as the manner in which the member who occasioned the vacancy was appointed, and the person appointed under this subsection shall hold office for that period of the term of office of the member who occasioned the casual vacancy concerned that remains unexpired at the date of his or her appointment". That sounds good until one considers, if somebody has four months to go in office, whether the Public Appointments Commission is seriously to run the advertising process and it is all to be done by resolutions of the Houses of the Oireachtas. Is that sensible? It seems that it should be qualified by some provision providing for reasonableness. The procedures put in place for the purpose of selecting candidates, particularly to fill the lay offices, seem to be very elaborate to engage someone for a negligible period. Should there be some let-out clause in order that we would not have to go through a process of placing advertisements by the Public Appointments Commission and debating and passing Dáil resolutions where there were just two, three or four months to go in somebody's term of office?

Ivana Bacik (Independent)
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As I mentioned, there is an issue with the internal inconsistency of the Bill as it came to us from the Dáil. Government amendment No. 57 which we have just passed was a way for the Government to seek to address that inconsistency. I go back to look at the problem with the Bill that is being resolved by amendment No. 57. It is a problem with the way section 10 which concerns the composition of the commission came to us. Until now, there was an issue with a crucial part of the Bill, section 10(1)(g). It refers to:

a member, being a person who is—(i) a lay person, and

(ii) a member of the Irish Human Rights and Equality Commission, nominated by that Commission under section 12...

It had not been included within section 18, the section which concerns a member of the commission who ceases to hold office. While I see amendment No. 57 as a tidying up exercise, we sought to engage in our own tidying up exercise with amendment No. 58 which was discussed with amendments Nos. 13 to 23, inclusive, to section 10. The Acting Chairman said it could not be moved because amendment No. 57 had been passed. Now that it has been passed, the provision has been tidied up and there is now greater consistency between sections 10 and 18. Will the Minister say how precisely the procedure will be operated when a member of the commission resigns and a casual vacancy results? To be blunt, there is an issue with logistics and how the procedure will be run in practice. If there is a casual vacancy for a very short period towards the end of a member's term of office, there will be a difficulty in how sections 10 and 18 correlate or may be read together, given that section 10 includes such a range of procedures for the appointment of members of the commission. How will it work in practice, specifically, as Senator Michael McDowell pointed out, when a member's term of office is close to termination? There will clearly be a casual vacancy. Will it have to be filled at that point? Will the commission be capable of functioning while there is a casual vacancy? Section 18(2) states "the casual vacancy so occasioned shall be filled" and "the person appointed under this subsection shall hold office for that period of the term of office of the member who occasioned the casual vacancy concerned that remains unexpired at the date of his or her appointment". It begs the question of whether the commission will then cease to be capable of functioning for the period in which the casual vacancy remains unfilled. How practical is this?

Michael McDowell (Independent)
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On the last point raised by Senator Ivana Bacik, it could be argued that section 15(7) deals with the commission continuing to function, notwithstanding the fact that there is a vacancy in its membership, but it appears that section 18(2) is mandatory. I do not know what kind of person would go through the business of applying to the Public Appointments Commission, being vetted and then being approved by the Members of the Houses of the Oireachtas, serving for two or three weeks when the process was over. One would need to be a very determined person to do so.

Gerry Horkan (Fianna Fail)
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I am sure they exist.

Charles Flanagan (Laois, Fine Gael)
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Of course, it has been changed from four months to two weeks.

Michael McDowell (Independent)
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I remember very well that in this House filling vacancies for very small periods is invaluable for certain purposes, but I do not think it would make much sense to do so in this case to make it mandatory.

Ivana Bacik (Independent)
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Senator Michael McDowell may have answered my question. I see the point of section 15(7) which states: "The Commission may act notwithstanding one or more vacancies in its membership". I wonder how compatible that is with section 18(2) and the mandatory nature of the clause, particularly where no period is provided for. The commission may act under section 15, where procedures for it are set out. It states: "The Commission may act notwithstanding one or more vacancies in its membership", but for how long can a vacancy persist? For how long does section 15(7) operate to have a commission capable of continuing to function? Presumably, if somebody was to resign immediately after being appointed, there would be a real question mark over the functioning of the commission if the vacancy were to remain unfilled for a lengthy period and the commission was to continue to depend on or refer to section 15(7) to give it ongoing power. Should some timeframe be provided for in subsection (2) or is there some other timeframe provided for elsewhere in the many provisions of the Bill? It is interesting that the nature of the language used is clearly mandatory in section 18(2). Section 15(7) states: "The Commission may act notwithstanding one or more vacancies in its membership". However, there is no provision governing for how long a vacancy is permitted to continue before the commission stops having the capacity to function properly.

Charles Flanagan (Laois, Fine Gael)
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I am very keen to be consistent throughout the legislation, and the object of the exercise here is to ensure that at all times the body is chaired by a lay member and that there would be a majority of non-judicial or laypersons. I see the point that the Senators have raised and say to Senator Bacik that the issue of whether the resignation or departure of a member of the commission might render the entire commission redundant was covered in section 15 which states that in any event the commission may act, notwithstanding that there may a be a vacancy or more. Section 15(7) should deal with the point raised.

As far as the very short term before the expiration of the office of the commission is concerned, the manner of appointment is under section 12(2) which states, "The Public Appointments Service shall recommend a layperson for appointment by the Minister as chairperson following a selection process". If the timeframe is very short, maybe a few weeks as described by Senator McDowell, in order that the process would be able to meet the task before it, I could perhaps consider adding the words "insofar as practicable", which might meet the very unlikely scenario of there being a very short period of time. It reminds me a little of the earlier debate when we considered the likelihood or otherwise of a member being involved in a road traffic accident or having a puncture on the way to a meeting. These are issues that are remote but, to address Senator McDowell's point, if the commission is of the view that, in order to meet, it needs a replacement for a very short time and if, having regard to the mandate of the Oireachtas and the Public Appointments Service, that timeframe is not practical, I will consider between now and Report Stage whether we can insert the words "insofar as practicable" and that might meet Senator McDowell's point.

Gerry Horkan (Fianna Fail)
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Amendment No. 60 cannot now be moved because amendment No. 59 has been agreed.

Ivana Bacik (Independent)
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I did say earlier that there is inconsistency in the drafting and language of section 19(1)(f) which refers to a member nominated by the Law Society of Ireland. I think the language should be change or amended to the "President of the Law Society of Ireland" to ensure consistency with section 13(2) which deals with the appointment of a practising barrister and a practising solicitor as members and reads: "The President of the Law Society of Ireland shall nominate a practising solicitor to be a member of the Commission." Section 13(1) reads: "The chairperson of the General Council of the Bar of Ireland shall nominate a practising barrister to be a member of the Commission." It seems slightly anomalous that section 19(1)(f) refers to "a member nominated by the Law Society of Ireland" not by the president of the Law Society, whereas section 19(1)(g) refers to "a member nominated by the chairperson of the General Council of the Bar of Ireland". While it may not have any practical import, it is internally inconsistent within section 19 between subsections (1)(f) and (1)(g) and it seems inconsistent with the procedure for appointment of practising barristers and solicitors as set out in section 13(1) and 13(2), where the chairperson of the General Council of the Bar of Ireland is referred to, and that is mirrored in section 19(1)(g) but the President of the Law Society of Ireland is not referred to, which marks an inequity between the two professional bodies.

I suppose it is no more than a discrepancy. Had I spotted it sooner I would have tabled an amendment. I will certainly do so on Report Stage but the Government may wish to address it because there may be a reason for it and I would be grateful if the Minister could outline that reason. To be absolutely correct, no member is nominated by the Law Society. Section 13(2) refers to the President of the Law Society of Ireland and section 10, the composition section that we spent so long on, refers in subsection (1)(i) to "a practising solicitor nominated under section 13" so section 13 is the lead section on nomination of a practising barrister and solicitor. Should this be made consistent?

Michael McDowell (Independent)
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I am not very conversant with the procedures of the Law Society but I agree with Senator Bacik that the reference should be to the president of the Law Society. In respect of section 19(1)(f), is being struck off by the High Court the only way a person can cease to be a practising solicitor? Can a person not write to the secretary general of the Law Society or someone and ask to have their name removed? Is it absolutely essential that the High Court removes someone from the roll? I know that Benchers of the King's Inn disbar people at their own request. Can the Law Society remove a person from the roll of practising solicitors at his or her request or must it go to the High Court for approval? Maybe the Minister, who is a member of that society, can enlighten me on that point.

Charles Flanagan (Laois, Fine Gael)
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It follows that, should any person offer their resignation or not renew their practising certificate annually, membership of the society will automatically lapse. If a person is no longer a member of the Law Society, that person is no longer able to represent the society and their membership of this commission would automatically be at an end. Striking off is done in effect by means of an order of the High Court, but should a person voluntarily resign or not renew his or her annual practising certificate, that person could no longer hold himself or herself out to be a member of the Law Society and as such would be ineligible for membership of the commission. I note the point made by Senator Bacik. We discussed this matter during various late-night debates early in the summer. At that point, we all agreed that any representative either of the Bar Council or the Law Society of Ireland would be appointed to or act on this commission as a direct consequence of his or her nomination. The president of the Law Society of Ireland will not make a nomination without the approval of the Law Society of Ireland. Similarly-----

Michael McDowell (Independent)
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I am sorry to interrupt but the point I was making is a bad one. This is covered under section 11(5)(a) already. If one ceases to be a practising lawyer, then one is out.

Charles Flanagan (Laois, Fine Gael)
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Yes and one's membership of the commission would also lapse immediately .

The second point at issue here is whether the president of the Law Society of Ireland or the chairperson of the General Council of the Bar of Ireland can act on a unilateral basis, without having a resolution of the society or the council. I do not think that will happen. However, for absolute tidiness, I would be prepared on Report Stage to make reference on all occasions to a member of the Law Society being nominated by the president acting on behalf of that society.

Ivana Bacik (Independent)
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I thank the Minister for his comments and for his willingness to accept that it might be useful, in the interests of tidiness, to amend section 19(1)(f) to include the president of the Law Society. To take up another point, the Minister said that he does not think the chairperson of the General Council of the Bar of Ireland or the president of the Law Society would nominate without reference to their respective councils or committees. Clearly, that is a matter for the internal rules of those professional bodies. Section 13 does not place any conditions on the nomination process. One would have to read into sections 13(1) and 13(2) that the internal rules and procedures of the Bar and the Law Society were being followed by the chairperson or the president in each case. I do not think one needs to set that out and would have thought that it goes without saying within section 13. Similarly, in section 19, there is no need to say "in accordance with the internal rules of the professional body". If one is referring in section 13 to two specific officers or elected representatives but one refers to just one of them in section 19 in the context of the Bar, that seems unequal or inequitable. It is tidier to also refer to the relevant head of the Law Society in section 19(1)(f).

As I have already said, it is simply a tidying-up exercise. I do not think it makes a difference in practice but it would be better, given how many issues have arisen in respect of inconsistencies and dog's-dinner-style problems with this Bill. I would like it to be tidy on coming out of the Seanad, in a way that it was not when it came to us from the Dáil. That is a fair point. I am not casting aspersions on any Members of the Dáil but am simply saying that the legislation did not come to us in a tidy and internally consistent fashion. I hope it will leave this House in that fashion. That is simply the spirit in which I am offering my point about the language in section 19(1)(f). It should be directly comparable to the language used elsewhere in the Bill, notably section 13 and internally in section 19(1)(g).

Charles Flanagan (Laois, Fine Gael)
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I do not fundamentally disagree with Senator Bacik. She will be aware from other legislation and across a range of bodies to which the Bar Council and the Law Society are asked to provide members, where members will sit on those bodies as representatives of those organisations. I have not heard it said that persons sitting on any State board representing either the Bar Council or the Law Society are there in their capacity as representatives of the chairperson of the Bar Council or the president of the Law Society. Rather, they are there as representatives of the bodies themselves and not the person who acts as chairperson or president. That said, I take the Senator's point about consistency in language. If there is an issue in that regard, I am happy to look at it again but I cannot see how there can be any element of confusion or uncertainty about the fact that the person is sitting on the commission or a subcommittee thereof in any capacity other than as a representative of the relevant body rather than the body's chairperson or president.

Ivana Bacik (Independent)
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I do not want to labour the point, but I did not say that there is any uncertainty in the method of appointment. Indeed, I was careful to say that this is just a matter of tidying up and a drafting issue. It is about consistency in language between and within sections. It is important to that extent but I did not suggest that it would cast any uncertainty over the appointment process. In fact, when I first read the different provisions, it struck me as somewhat odd that we were referring in section 13(1) to the chairperson of the General Council of the Bar of Ireland and in 13(2) to the president of the Law Society of Ireland. It would have been preferable to say "the Bar of Ireland shall nominate" or "the Law Society of Ireland shall nominate" because that is exactly the Minister's point - these are the bodies that the individual representatives are purporting to represent. It would have made no difference in terms of procedure and might have sounded better to have said that it is the bodies that nominate. Clearly, an alternative method of amending or tidying up would be to amend sections 13(1) and 13(2) to say the Bar of Ireland and the Law Society of Ireland and to then just refer to the bodies in section 19 or anywhere else that it arises. That said, it seems easier to include the president of the Law Society in section 19(1)(g). Perhaps we did cover this during that late-night debate in July when we discussed section 13 but I am not sure why specific reference is made to the president and to the chairperson but since such reference was made and since that is the section as we passed it, it would be consistent to use the same language in section 19.

Michael McDowell (Independent)
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I was looking back on section 11(5)(a) and (b) and thinking that if one ceases to be a practising barrister or solicitor, one ceases to be a member of the commission automatically. In that context, paragraphs (f) and (g) may be surplus to requirements. How one does it - whether one is struck off by the High Court or whatever - is actually captured by section 11(5)(b). One ceases to be a practising solicitor at that stage and one is out. If we are tidying up the Bill, it might be better to just rely on section 11(5)(a) and (b) as achieving the ends that the Minister is attempting to achieve in (f) and (g) here, which are punitive disciplinary measures.

Charles Flanagan (Laois, Fine Gael)
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All we are doing in section 19 is making perfectly clear the grounds for disqualification and setting out a range of persons who are ineligible to hold office. I do not believe it is inappropriate, notwithstanding what is contained in an earlier section, to state categorically that anybody who is struck off the roll of solicitors or who is disbarred by the benchers of the King's Inns is ineligible as a result.

Gerry Horkan (Fianna Fail)
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Amendment No. 64 cannot be moved because amendment No. 63 has already been agreed.

Michael McDowell (Independent)
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Section 21 says that the director of the commission is to be accountable to the Committee of Public Accounts. I want some indication from the Minister as to whether this is purely in relation to the existing Comptroller and Auditor General report procedure or whether it goes wider than that.

Should the responsibility of the Accounting Officer and the Committee of Public Accounts deal with the systems procedures and practices employed by the commission for the purposes of evaluating the effectiveness of its operations? That seems to be outside the scope of the Committee of Public Accounts if it is examining the effectiveness of the commission and its own evaluation of the effectiveness of its operation. It widens the ordinary scope of the Committee of Public Accounts to give it a broad remit which could involve it in somewhat controversial debate and discussion which is undesirable.

The Bill provides that, in giving evidence under this section, the director shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government, or the objectives of such a policy. I do not understand how the Committee of Public Accounts could ask questions of the director about Government policy. Either the purpose of this section is to say the director is to be an Accounting Officer, amenable, like all Accounting Officers, to the Committee of Public Accounts or it is giving the Committee of Public Accounts a broader remit to examine policy issues or engage in discussions about the systems, procedures and practices employed by the commission for the purpose of evaluating the effectiveness of its own operations. That potentially engages the director of the commission in a small-scale political debate with members of the Committee of Public Accounts. I do not know why the director should go in to defend the commission before the Committee of Public Accounts in respect of such issues. That seems to be an unusual provision. In the past 24 hours, there have been indications of the Committee of Public Accounts operating at the outer limits of the range of its function. I believe it acted properly and I am not criticising the committee. This seems to be an unnecessary provision.

Ivana Bacik (Independent)
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Senator McDowell is right that this seems to be an unusual provision, to say the least. To state the obvious, it recalls the debate we just had about section 13 when the Minister pointed out that the chairperson of the Bar Council and the president of the Law Society would have to nominate persons to the commission in accordance with its own internal rules and procedures. It is unnecessary to state that in the statutory provisions.

Section 31 deals with the appointment of the director of the commission. We have not yet reached that but it is clear that the director will be someone appointed "following a selection process held by the Public Appointments Service" and for a period not exceeding five years. It hardly needs to be said that the director would not question or express an opinion on the merits or objectives of Government policy given the process for selection of the director and the nature of the role. It is unnecessary to make that statement, which raises the question as to why it has been inserted in the section.

Charles Flanagan (Laois, Fine Gael)
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As parliamentarians, I am sure we are all in agreement about the role and function of our parliamentary committees and, in particular, the Committee of Public Accounts. It is unique in terms of its standing among other Dáil committees. Section 21 will only apply where the Committee of Public Accounts has invited the director of the commission to report and give evidence. It is appropriate that there should be that chain of accountability between Parliament and the operation of the commission. It is not new. In fact, this is identical to the engagement between the Legal Services Regulatory Authority and the Committee of Public Accounts. The committee is the appropriate place for the type of engagement envisaged and, having regard to the mandate in respect of the appropriation accounts and the reports of the Comptroller and Auditor General, it is entirely appropriate that the director would not impinge upon any aspects particular to the policy of the Government, any particular Department or Minister or its objectives. It is identical to the relationship between the Legal Services Regulatory Authority and the Committee of Public Accounts. It is one that has not been raised by the Committee of Public Accounts as being inappropriate or otherwise. It is important that an outline of the relationship between the new body and Parliament is specifically stated in the legislation.

Paul Coghlan (Fine Gael)
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The result is: Tá, 25; Níl, 11. The question is carried. We move on to section 22. The section is opposed.

Ivana Bacik (Independent)
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Under Standing Order 62(3)(b) I request that the division be taken again other than by electronic means.

Paul Coghlan (Fine Gael)
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I had moved on to section 22.

Ivana Bacik (Independent)
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The Minister was not here and we had not moved on. I was indicating.

Paul Coghlan (Fine Gael)
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The Minister does not have to be here for the declaration of a result. There is no requirement for the Minister to be here for the declaration of a result.

Ivana Bacik (Independent)
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I am being discriminated against because we are sitting so far away from the Chair. It is very hard to make oneself seen.

Paul Coghlan (Fine Gael)
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Order. We cannot hear one another in here.

Ivana Bacik (Independent)
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That is exactly my point. It is very hard to be seen or heard in this corner of the room.

Paul Coghlan (Fine Gael)
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I had declared the result.

Ivana Bacik (Independent)
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I had indicated.

Paul Coghlan (Fine Gael)
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I did not see the Senator.

Jerry Buttimer (Fine Gael)
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To be fair to Senator Bacik she had indicated.

Ivana Bacik (Independent)
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I thank the Leader.

Paul Coghlan (Fine Gael)
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I want to be fair to everybody. If the House is happy we will have a walk through vote. The result was pretty clear.

Michael McDowell (Independent)
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This section must be viewed in the context of the previous section. It will be noted that we have just voted to insert into the Bill, although personaly I was opposed to it, a provision to enable the director of the commission to testify before the Committee of Public Accounts on the economy and efficiency of the commission in the use of its resources, as well as on the system procedures and practices employed by it for the purpose of evaluating the effectiveness of its operations. These are two topics of which the Committee of Public Accounts is supposed, under section 21(2)(b) and (c), to be seized and over which it will have jurisdiction to require the director to come and deal with them. We then find, however, that the chairperson of the commission will be asked to appear before any other committee of the Houses, other than the Committee of Public Accounts or the Committee on Members' Interests of either House, or a subcommittee of a committee. The chairperson will be capable of being brought in, at the request of a committee, to account for the general administration of the commission. What is the difference? Section 21(2)(b) and (c) refer to the economy and efficiency of the commission in the use of its resources and the systems procedures and practices used by it for the purposes of evaluating the effectiveness of its operations. The chairperson can be dragged before another committee to be answerable and account for the general administration of the commission.

We come to what is excluded from what is covered by general administration referred to in section 21(3). It states the chairperson of the commission shall not be required to account before a committee for any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State. Let us stop there and ask ourselves what that provision covers? It refers to "any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State". Therefore, the chairperson cannot give evidence on anything about which there is a dispute which has been resolved in the courts, perhaps even in a manner that is condemnatory of the commission, and will not be held accountable for it. If he or she loses a case in court or is found to have acted unlawfully, he or she cannot be asked about that fact that has already been determined by the High Court. It goes on to state "or may at a future time be the subject of proceedings before a court or tribunal". I am trying to work out with what category we are dealing with. This is so broad it refers to anything that could or may be argued about in court, or which may at a future time be argued about before a court or tribunal in the State. One way or another, something serious seems to be excluded.

We come to an issue to which we will return when we get to section 28. Section 22(3) reads: "where the giving of such an account would involve disclosure of proceedings, communications or matters contrary to section 28". Section 28 applies to the following categories: a member of the commission, the procedures committee or any other committee of the commission. I am a little surprised. Can the procedures committee of the commission have people, other than members of the commission, on it? I am not clear on that aspect. Can other people be co-opted or does it just apply to a member of the commission? Can any other committee of the commission have non-commission members on it? That is not clear and it is a matter the Minister might clarify.

Section 28(1)(b) applies to "the Director, a member of staff of the Office, a consultant, advisor, or other person engaged under contract or other arrangement by the Commission". These are the two categories on whom an obligation of confidentiality is put.It is notable, for instance, that a politician or former politician who receives a report from the commission does not seem to be covered by this. That is an issue that must be addressed.

Section 28 also states:

In addition to what is provided for in section 27, a person to whom this section applies shall not, except for the purposes of this Act, disclose—(a) in relation to persons applying for, or recommended for appointment to, judicial office—

(i) proceedings of the Commission and of its committees,

(ii) communications to and from the Commission and its committees, and

(iii) communications to and from the Commission or its committees to the Minister,

or

(b) any matter concerning the removal of a member of the Commission (before such removal takes place) under section 20.

I do not know what the sanction is for breaching that. Section 27 states that a person shall not disclose confidential information obtained by him or her while performing functions as a member of the commission, the procedures committee or any other committee of the commission - this again implies that one can be on the procedures committee without being a member of the commission - or as the director, a member of staff of the office or a consultant, adviser or other person who is or was engaged under contract or other arrangement by the commission, unless he or she is duly authorised by the commission to so do. It is not quite clear what "confidential information" means if the commission is entitled to excuse a person from the duty. Subsection (2) states:

“confidential information” includes—(a) information that is expressed by the Commission to be confidential either as regards particular information or as regards information of a particular class or description, and

(b) proposals of a commercial nature or tenders submitted to the Commission by contractors, consultants or any other person.

This is very worrying because it means that if the chairman of the commission comes before the Committee of Public Accounts or any other Oireachtas committee, he or she can, if the commission so requires, say that tenders and proposals of a commercial nature submitted to the commission by "contractors, consultants or any other person" will not be disclosed because they are confidential. What kind of accountability is this? If the commission is brought before the Committee of Public Accounts and allowed to excuse itself from accepting the lowest tender by simply stating that the information is confidential and that, therefore, it does not agree to it being imparted, the result is that financial accountability is very seriously compromised.

The broader statement that "confidential information" includes information that is expressed by the commission to be confidential effectively allows the commission to write its own rules. It can say it deems A, B or C to be confidential and, therefore, this material may not be disclosed to anybody. This gives it a right to write its own privacy and secrecy law.

Going back to section 22, which depends on these provisions, there is a prohibition on the commission chairperson disclosing proceedings or communications that are contrary to section 28. The section then sets out a very complex procedure whereby the Dáil committee is effectively bound, if the commission chairman refuses to give it information, to go to the High Court to get a hearing as to whether the chairman is justified in resisting the application of the committee for particular evidence to be given. Subsection (6) states that pending the determination of the High Court proceeding, "the chairperson shall not attend before the Committee to give account for the matter the subject of the application." The High Court would then tell the Oireachtas committee that it must either withdraw the application or, if it does not apply, that "the chairperson shall attend before the Committee and give account for the matter." This section provides for a whole procedure whereby the High Court will become the referee between the Oireachtas committee and the chairman of the commission.

Subsection (8) states that in the performance of his or her duties under this section, in other words, testifying as to the general administration of the commission, the chairperson shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government, or the objectives of such a policy. To give a concrete example, if the chairperson were to say the commission was radically underresourced and Government policy was that the commission had perfectly good resources, under this section, the commission chairman would not be entitled to query the judgment of the Government or a Minister of the Government as to whether the commission had adequate resources to carry out its functions. That is a very strange situation, but it is what we are proposing to put into law. A person who is brought in to an Oireachtas committee to discuss the general administration of the commission, and who is the chairman of that commission, will be prohibited from dealing with any matter on which the commission is at variance with the policy of the Government or a Minister of the Government and from expressing any opinion or answering any question in that regard.

Charles Flanagan (Laois, Fine Gael)
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It is a policy issue as distinct from a resource issue.

Michael McDowell (Independent)
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Yes, but what policy are we talking about? If the chairman appears before a committee to discuss the general administration of the commission, how could he or she be involved in a debate on Government policy before the committee? How could that arise unless it was a resources issue and the Government was determined only to give the commission half of what the commission believes necessary to carry out its function? It is hard to see what, other than a resources issue, could possibly be relevant to the general administration of the commission. However, the section provides that, on resources issues, the commission cannot query the policy laid down by the Government. If the Minister sends the commission a letter stating that it is his or her policy that the commission's resources for the next three years will be X and no further resources will be provided, the commission chairman cannot talk about that before a committee of the Oireachtas because it is the Minister's stated policy. The chairman cannot query or question it or give any view as to whether it is justified or unjustified. This is remarkable stuff.

The whole mechanism for the adjudication by the High Court of whether the chairperson is obliged to answer a question, and the suspension of the questioning pending a determination by the High Court, is massively cumbersome. Curiously, it involves members of the Judiciary making decisions about what the chairperson of the commission should or should not say.

These points are largely procedural and are issues that deal with the unthought out nature of these provisions. Much more important is the fundamental question - and at this stage I must insist that the Minister gives a clear indication by way of an answer - of what is "confidential" in this process? The Bill is very unclear about this. Is the fact that a particular person has applied to be considered as a judge "confidential"?Is the person in question entitled to state in public that he or she has applied and been refused by the commission on so many occasions? Is the commission entitled to confirm or deny that? What is much more important, and I require the Minister to make this very clear, is if the Cabinet is being asked by this group to consider a shortlist of one, two or three people for any particular position, is the Cabinet entitled to know what other members of the Judiciary or other persons applied for the job? The Minister has conceded on a number of occasions in the debate that it is the Government's choice and responsibility and that no matter how one reads this legislation, one way or the other, backwards or forward, it will always be the case that the Government is free to make its own choice and not to be bound by the commission's recommendations. If that is to be given life, surely it is relevant that the Government should know that the following 20 people expressed an interest but the commission came up with recommendations for the following three people. For the Government to form any view as to whether the commission was doing a good or a bad job, or whether it was knocking people out, as it were, year in year out, who seemed to the Government to be people who were at least as good as some of the recommended people, if the Government is to be kept in the dark as to the identity of the people who applied for appointment, it is effectively being asked to accept or reject a recommendation not knowing whether it is a good or a bad one.

People may be critical of the Judicial Appointments Advisory Board but at least the members of the Cabinet are entitled to know who applied. They are entitled to ask the Minister for Justice and Equality who were the 20 people who applied for this job. He may be recommending Joe or Josephine Bloggs for appointment but the members of Cabinet may not have heard of that person and they can ask him the names of the other people who applied for the job. If we are talking about existing members of the Judiciary who are being rejected by the lay majority of this commission for further promotion - this is a particularly important point to which we will return at a later stage of the debate - surely we must be in a position whereby the Government should know that the commission is making that type of decision. That is why I find it worrying that we have never had a clear statement, and it is not clearly provided for in this legislation. Is the Government entitled to ask of the commission the names of all those who asked for the job, either eligible lawyers, eligible legal academics or existing members of the Judiciary? Before the Cabinet makes an appointment, can its members ask the Minister to tell them who was in the running and, before they accept his recommendation, can they ask for some inkling as to the identity of people whom the Minister has rejected year after year and about whose applications he has kept them in the dark? That issue lies at the heart of this commission. Is it to be kept secret from the Government that a person has applied to the commission and has not featured in the list of the three recommended?

We could well have a situation where five people applied for one particular judicial appointment. I cannot see any reason the Government, if it is being asked to exercise a constitutional discretion in a particular way by the commission saying these are three it recommends, should be kept in the dark as to the identity of the other two people. They may be members of the Judiciary whose candidacy, for one reason or another, a majority of this commission, which is organised to be lay people, has knocked on the head and who have been excluded by the commission from the shortlist for Government. Who will ever know about this? Members of the Judiciary who participate in the process will know about it but, if one takes the view that this is confidential information and should never be disclosed to anyone, they may not impart it to anyone. The same applies to the barrister and the solicitor appointee. If they say that this commission is crazy because it keeps ignoring Ms Justice so-and-so, who is accepted widely as one of the leading jurists in Ireland, and they do not know precisely why she is being rejected and three other people are being proposed for the job rather than her, and if that remains an absolute secret and it is in a black box that no one can penetrate and ask what is going on at that commission, who is being considered and who is not, then there is something fundamentally wrong and it is a huge mistake. When I was Minister with responsibility for justice, the Cabinet was perfectly entitled to ask of me the names and runners when I came to it with a recommendation, having spoken to the leaders of the coalition parties and the Attorney General beforehand.

There is another leg to this that I am deeply concerned about and that is that the Attorney General, who is the legal adviser to the Government, is sitting on this commission. He or she will know the names of the unsuccessful people. I want a clear answer now, before we enact this legislation, which is grossly inadequate, if the Attorney General is free to tell the Cabinet that the commission has rejected three Supreme Court judges who applied to be Chief Justice and has come up with two or three other people? Is the Attorney General free to tell his or her Cabinet colleagues that, yes or no? We cannot have any more evasion on this. I am not accusing the Minister of being deliberately evasive. We must have absolute clarity. Is the Attorney General free to tell the Cabinet all the names and runners arising from a shortlisting by the commission? The answer to that is either yes or no. If it is to be the case that the Attorney General is free to tell the Cabinet that he or she was a bit taken aback that the majority of lay people excluded the two sitting Supreme Court judges for recommendation to be Chief Justice or two Court of Appeal judges or High Court judges for recommendation to be President of the Court of Appeal or an ordinary member of the Court of Appeal, and if it is the case that the Attorney General cannot tell them that information under the terms of this legislation, it is rotten legislation. On the other hand, if he is free to do it, let us have that said here and now in this House that this is the view of the Government, and let us have an amendment to make it clear that the Cabinet is entitled to that kind of information.

If we look at the Constitution with respect to the ultimate choice as to who becomes a judge, even if it is from a shortlist of three recommended or if the Cabinet decides that it does not like the look of the shortlist at all and it wants to go outside that group, surely the very first question the Cabinet would ask the Attorney General is whether Ms Justice Bloggs was rejected for this position. Surely, the members of Cabinet are entitled to ask that question. If they all said she is the person they want to be on the Supreme Court because she is conservative, liberal, an eminent jurist or whatever particular criterion they want to apply to the appointment, are they entitled to know that she has been rejected on three or four occasions by this commission on an application? There is no evading that issue, and the language of this Bill is deliberately opaque on that central issue. It is changing an existing situation, which is that the Cabinet is entitled to that information, to a situation where one is not clear and one is not told, but there is provision whereby some of this information is confidential, and there is no sanction for a breach of the confidentiality, which is another matter completely.I am always wary of a rule of confidentiality that can be observed with malice by some and broken with impunity by others and there is no remedy one way or the other.

I know that "general administration of the commission" probably does not cover the policies the commission is applying to its decisions. On the face of it, it probably does not cover decisions made successively that a particular judge is not worthy of promotion for some reason held in the hearts or heads of the lay majority, but it is absolutely essential that there be transparency on the issue. The Bill seems to leave it uncertain because, on my reading of the legislation, I am at a loss to know whether the Cabinet can be given that information. Does the Minister intend that the Cabinet will have access to that information and that the Attorney General who is the legal adviser to the Government will be able to inform it of these matters? When I was appointed Minister for Justice and Equality, the Cabinet procedures were specifically altered to require me to consult the Attorney General before I brought any name to the Cabinet. That is included in the Cabinet handbook. It is not a secret. If the Attorney General is to be party to the entire selection procedure and unhappy with it in any case, will he or she entitled to tell the Cabinet that the shortlist is for the birds; that there are five far better people; that, as legal adviser to the Government under the Constitution, he or she should bring to its attention that they are not the best three people available for appointment, and that it should look elsewhere? Will that be permissible?

There is no getting around this issue by saying it may or may not be permissible because if the Minister and his Cabinet colleagues - the Minister for Transport, Tourism and Sport, Deputy Shane Ross, in particular - intend that the Attorney General should be prohibited, by the terms of this legislation, from imparting the information that others far more meritorious were overlooked in the process of informing members of the Government and if the Minister for Justice and Equality of the day who, under Cabinet procedures, proposes one individual from either the shortlist or the generality of eligible persons to be made a judge, he or she will be acting unlawfully. It is fundamentally wrong and an attack on the constitutional role of the Government. The Government, not the commission in its entirety or its carefully cosseted lay majority, is responsible to the people for whom it appoints. There must be, on the part of the Government, an entitlement to know who is interested in being a judge who the commission is sifting out of this arrangement and to come to a conclusion, if it is the Cabinet's collective decision, that the commission is consistently getting it wrong, that it is putting up people who do not merit appointment ahead of others whom the Government should know wish to be considered by it for such appointment. Until we sort out the issue, all of this business of providing that the chairperson can be brought before an Oireachtas committee to be asked about the general administration of the commission but shall not at any stage be allowed to deal with its transactional aspects in carrying out its functions is an irrelevance.

Will the Minister answer some of these questions? My view of the section and remaining sections is coloured significantly by whether the Cabinet will be entitled to be informed by the Attorney General about the unsuccessful people who were not favoured by the commission but who the Attorney General might feel are far more worthy of appointment than some of the three appointees recommended by the commission where it is expressly provided that the majority be of lay people and where the Attorney General is effectively in a minority as law officer of the State because it is provided for in the statute that the majority be of people who are not lawyers.

Ivana Bacik (Independent)
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Senator Michael McDowell has raised some very significant issues. The first issue at stake involves section 22 and the accountability of the chairperson of the commision to Oireachtas committees. It struck me even before listening to Senator Michael McDowell that the section appeared to be overkill, in respect of the number of committees to which the chairperson might well be accountable. Why, for example, is the justice committee not simply specified? When I was a member of that committee, we held hearings on the judicial appointments process, at which we heard from experts and so forth. The matter was within our remit.

Section 22(8) sets out that the chairperson of the commission shall not question or express an opinion on the merits or objectives of policy. The Minister did respond to questions on a similar clause in section 21(3) related to the accountability of the director of the commission to the Committee of Public Accounts, but I did not follow why it was necessary to specify that the chairperson or director would not question or express an opinion on policy in these sections.

Turning to Senator Michael McDowell's other point on confidentiality and the information that may or may not be disclosed, it is of interest and value to hear from somebody who was involved in the process previously as Minister of Justice and Equality. The Senator's amendment, No. 70, and Government amendment No. 71 deal precisely with the issues of confidentiality and disclosure, but these are issues that are also relevant when one considers the accountability or potential accountability of the chairperson of the commission to Oireachtas committees, any number of which may require him or her to attend before them. I am interested in knowing why the Committee on Members' Interests of the Dáil and the Seanad are included. Having been a member of the Committee on Member's interests of the Seanad, I know the work it does, most of which is entirely confidential. I could not tell Members legally what goes on because I am no longer a member of it, nor am I capable of saying what is happening on it currently. Even when I was a member of it, we had to maintain utter confidentiality about its dealings. Confidentiality is relevant when we consider the accountability of the chairperson to these committees under section 22, some provisions of which require greater clarification and on which I would be grateful to hear from the Minister.