Wednesday, 24 October 2018
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
Amendment No. 68 is a physical alternative to amendment No. 67, amendment No. 71 is a physical alternative to amendment No. 70, amendment No. 70 is consequential on amendment No. 90. Amendments Nos. 66 to 71, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
The purpose of section 27 on confidential information is to provide for the non-disclosure of such information by a member of the commission or the procedures committee or any other committee, by a director, a staff member, a consultant or adviser or any other person who might be engaged under contract by the commission.I want to strengthen this. I am of the view that there may have been something of a lacuna in the original construction of this and an offence of breach of the requirements is merited. In that regard, amendment No. 69 provides for a summary offence in the standard form.
The amendment also provides for disclosure in circumstances where consent in writing of the commission or the director is at issue or disclosure may be required by law or in circumstances provided for in subsection (3). The circumstances are where disclosure of information is required to a member of the Garda Síochána or any other person, whether within the State or otherwise, charged with the detection or investigation of an offence.
On amendment No. 71, the section provides for the confidentiality of certain proceedings and other matters in respect of the business of the commission and the committees attached thereto in respect of the removal of a member of the commission. That applies to a similar category of persons as under section 27. Similar to my amendment to section 27, amendment No. 71 seeks to clarify where exclusions to the disclosure prohibition might apply in respect of proceedings, etc. As with the previous amendment, this will provide for an offence for contravention of the disclosure prohibition on summary conviction. As before, I do not see a requirement to apply an indictable offence, which would attract a class A fine or imprisonment for a term not exceeding 12 months.
I ask Senators to support the four linked amendments. I acknowledge the earlier contribution of Senator McDowell on this issue. I was interested to follow up on issues raised by the Senator on Second Stage because they were important. I hope the amendments receive the support of the House at this stage.
It was genuine breathlessness. I will list the amendments in the group again. Amendments Nos. 66 to 71, inclusive, are related and are being discussed together. Amendment No. 68 is considered to be a physical alternative to amendment No. 67. Amendment No. 71 is a physical alternative to amendment No. 70 and amendment No. 70 is consequential on amendment No. 90.
This group of amendments is of central importance to this legislation. Unless it is resolved in a manner which I consider to be satisfactory and constitutional, I will have the gravest of problems with the Bill.
In general principle, there will have to be some degree of confidentiality attaching to any process, be it the current Judicial Appointments Advisory Board process or a judicial appointments commission process. I am not blind to that requirement of commonsense. I am concerned, however, about a matter which I raised with the Minister previously. Is it his understanding of the legislation, in its current form and as proposed to be amended by him, that the Cabinet, when considering a list of persons recommended by the judicial appointments advisory commission, will not be informed as to who were the also-rans in the process? That is of great significance here.
While we have not yet come to this point in our consideration of this legislation, if we are to have a situation in which a list of three names comes before the Cabinet and the Cabinet, having considered, say, three appointments to the Court of Appeal, remains wholly in the dark that a very senior judge has applied on three occasions and the commission has not chosen to put that person's name on the list, it seems that would absolutely subvert the role of Government in making a choice. What worries me most about the whole idea of this legislation and the claims that have been made for it by the Minister for Transport, Tourism and Sport, Deputy Ross, is that somehow the Cabinet will be not merely required, as this legislation puts it, to "first consider" the names on a recommended list, but it will be kept in the dark as to who else was not merely eligible but seeking the job. More important than that, a Government might, after making a series of judicial appointments, be entirely ignorant of the fact that there was another person who was applying to be, say, a judge of the Court of Appeal, and has been consistently, for some reason, left off the list by this independent commission. That seems utterly wrong in principle and in commonsense. Supposing the President of the Court of Appeal was not shortlisted for appointment to the Supreme Court three times, could it possibly be right that the Government would be kept in the dark about that matter?
Since it is the case, as the Minister has consistently agreed, that the Government is free in the final analysis to ignore completely such a shortlist and to choose somebody else if it so desires, surely the Government of the day is entitled to have some idea as to the quality of the work that the commission is doing. For instance, if the commission, in interpreting its mandate under this legislation in respect of diversity and all the rest of it, is nominating persons for a shortlist who, if the Government knew the full facts, are inferior appointees in the Government's view to others who might or might not be seeking that appointment but whose identity or interest in the position cannot be disclosed to the Government under this legislation, this is a very serious interference with the Government's constitutional function and entitlement to make an informed choice about the decision.It seems that this is the real question. I have no problem with shortlists of recommended persons coming to the Government. That is in the Judicial Appointments Advisory Board legislation, with the exception of existing judges, to whom I will return. However, I have a major problem with the Government, for the first time, being kept in the dark about eligible persons who have not been recommended. I am talking about circumstances in which persons whom the Government might consider to be more suitable are not included in the shortlist, even though they might have indicated an interest in the appointment in question. If we accept that the Government or the Executive of the day has the constitutional function, right, entitlement and discretion to decide between two eligible persons for appointment - I believe this to be the constitutional position - but contrive a statutory situation that will result in the Government being blindsided in how the shortlist that will appear before it was composed, particularly in terms of who will not be on it, we have an unconstitutional invasion of the Government's function.
Senators might be interested to know that under the current Judicial Appointments Advisory Board system, the Government is entitled to know who all of the applicants were when considering the board's recommendations. According to my reading of the legislation, the purpose of this Bill which has been carefully disguised in statutory provisions about confidentiality and non-disclosure is to keep the Government in the dark on the identities of all suitable applicants. Why should a Government be kept in the dark on who is applying for judicial appointment? What possible rule, or common-sense objective, can be served by a statutory mechanism that makes it impossible for the Government to know what is really going on, who is really seeking judicial appointment and who is consistently being non-shortlisted for appointment by it? The effect of the provision, coupled with the provisions which prohibit canvassing, is that it might be entirely improper for a senior judge of the Court of Appeal to contrive to tell the Taoiseach of the day that he or she has been non-shortlisted on five occasions. Is a person in such circumstances entitled to know whether there is something wrong with him or her? I do not know what the process is.
All of this raises the serious question of whether a judge would know that he or she had been non-shortlisted. Is a senior judge of the Court of Appeal who sees others being put before the Cabinet time after time for appointment to a position in which he or she is interested entitled to know under this legislation that he or she has been unsuccessful? Is that a secret? Will it be an offence to disclose to a would-be appointee that he or she has been unsuccessful? The answer to that question must be "Yes" or "No". Will the commission be entitled to write to a particular person to inform him or her that, regretfully, he or she has not made the shortlist to be sent to the Cabinet? If it is the case that it will not be possible to reveal this information to a disappointed applicant, will the members of the Government be kept in ignorance of that fact also? In other words, will it be open to the commission to tell a judge of the Court of Appeal that he or she has been unsuccessful in the sense that he or she has not been shortlisted for consideration by the Government? Will it be possible for the Government, when it comes to make the appointment, to know that someone was an applicant in the first place? I have always had the greatest of respect for the Office of the Parliamentary Counsel here and probably have even more respect for it now because it seems that this is not simply a lacuna in the legislation. I suggest it is deliberately being fudged. I am reasonably versed in legislation, but is not clear to me what the answers to my questions are. If it is not clear to me now, as I am being asked to approve or disapprove of it as a Member of the Oireachtas, why is that so? I suggest it is because the question of what the Government of the day is entitled to know has deliberately been left obscure.
I have a second question which I mentioned briefly. If every judge of the superior courts will have to submit an application de novoto the judicial appointments commission for consideration for every promotional appointment - for example, to the presidency of his or her court; the Court of Appeal or its presidency, or both; to the Supreme Court or the position of Chief Justice, or both - I ask everybody here to consider what the implications of the new requirement will be. No judge is required to do so under the existing Judicial Appointments Advisory Board regime, which is entirely commonsensical. By practice, any judge who is interested is entitled to inform the secretary to the Government of such an interest. That is considered kosher. I would like to look at the implications of asking every superior court judge who wants to be considered for a judicial promotion to apply to this supposedly independent commission, with its so-called lay majority. In my judgment, it is entirely misconceived and wrongheaded as a proposition. Why should two thirds of the Judiciary, if they are interested in promotion, routinely have to submit to procedures involving an evaluation of the diversity implications and all of the other so-called criteria which are set out in this statute every time there is a promotional opportunity? If one is in the superior courts, how does it possibly matter what one's social origins are or whatever else? If one is suitable to be a High Court judge, could it ever possibly be the case that one is less suitable to be made a judge of the Court of Appeal by reference to some concept of diversity? If we are going to-----
Yes. If one of the criteria in devising the shortlist is to secure diversity which is one of the aims of the commission and somebody is knocked off the list five times in a row because he or she is not sufficiently "diverse" - whatever that means - is it possibly right for an independent body to require each judge to submit to an examination of his or her suitability on the grounds of diversity every time there is a vacancy?I say it is not. Apart from the logistical and administrative headache of having members of the Judiciary routinely apply for every appointment upwards, it worries me that it will turn into a beauty parade whereby judges will become less inclined to make unpopular decisions because they know that every time their name comes up, a lay-dominated group will vet them in line with these criteria, including diversity and such, and will look at their suitability every time. I asked the Minister and he indicated at one stage that he was open to excluding appointments of existing superior court judges from the scope of the appointments commission. We are now getting to crunch point in this debate.
I accept the Chair's ruling, obviously, but I am not. I have asked the Minister to be explicit on this. If these things are kept secret, the Government will not know who is being knocked off the list and who is being ignored consistently and that is the reason I slightly digress. It is most important to existing judicial appointees seeking promotion. It is most important that the Government is not kept in the dark. At this point, rather than prolong my contribution, which will not be the last on this group of amendments, I ask the Minister to make something clear to me. With the presence of the Attorney General on the judicial appointments commission, provided for in the Dáil by amendment against the wishes of the Government - though I am not sure, will it be permissible for the Attorney General to inform the Cabinet, when it is considering an appointment, who the other eligible applicants were? We need a simple answer to that question.
I do not think pleading the flu injection is satisfactory with regard to what the Senator may or may not say. It seems to me that it is an abdication of responsibility if he is citing the flu injection for some rambling he has already indicated he may be minded to pursue.
We were told we could discuss it with regard to amendments Nos. 66 to 71. Subsection 2 states:
Where any of the judicial offices to which this section applies stands vacant or where the Minister reasonably apprehends that any of those offices will stand vacant, the Minister shall request the Senior Judicial Appointments Committee (in this section referred to as “the Committee”) of the Government.
What will the Minister request it to do? It does not say. It is daft. It just states the Minister shall "request", and leaves it hanging there. I think there is a mistake or misprint there. Perhaps Senator McDowell could elucidate when it comes to that.
Turning to amendments Nos. 66 to 71, No. 66 reads:
In page 20, line 34, after “not” to insert the following:“, without the consent in writing of the Commission or (save where the intending discloser is the Director) the Director or except as required by law or in the circumstances provided for in subsection (3),”.
This is the Minister meeting some of the arguments of the Seanad. Up until this, apparently, it would be an offence even to communicate in the gardaí in a situation where somebody who was on the judicial appointments commission knew that some malpractice or criminal activity had taken place. The Minister is closing this loophole by saying that they can make such a disclosure if it is as required by law.
Amendment No. 67 deletes lines 38 to 40. The way it is done is not necessary. One could just delete the second two and a half lines that read:
In page 20, to delete lines 38 to 40 and substitute the following:“(b) the Director or a member of staff of the Office,”.
By and large, I agree strongly with the amendments Senator McDowell has tabled but it seems to me that if he does that - and in section 27(1)(b) there is just the director or member of staff of the office - he is effectively removing "consultant, advisor or other person who is or was engaged under contract" but I do not really understand why.
I see. I think there is a danger if Senator McDowell's or the Minister's amendment was not accepted and this one was accepted that we would then be exempting hired hacks, which I do not think would be intended at all. I am very grateful to Senator McDowell for that explanation, which clears things up a bit.
I will forget amendment No. 68. Subsection 3 of amendment No. 69, a Government amendment, reads:
Nothing in subsection (1) shall prevent the disclosure of information, in accordance with law, to a member of the Garda Síochána or any other person, whether within the State or otherwise, charged with the detection or investigation of an offence.
The gardaí are notoriously leaky. What on earth is to stop them? The gardaí have leaked information about cases on many occasions. This is a regular feature of life. We know that. I think in some cases they are paid for it. It states it will be all right for them to disclose "to a member of the Garda Síochána or any other person, whether within the State or otherwise". That seems very broad to me. One could be letting the CIA know about these matters. It also concerns me that this qualification is not contained in the Government's amendment No. 71, where it states in subsection 4:
Nothing in subsection (2) shall prevent the disclosure of information, in accordance with law, to a member of the Garda Síochána or any other person, whether within the State or otherwise
I did not notice that bit. It follows the first amendment fully.
With regard to both Senator McDowell's and the Government's amendments, it strikes me that a term of imprisonment not exceeding five years is a pretty hefty sanction.I speak as somebody who is against the use of prisons for these sorts of offences because they are a waste of money. Why should I, as a taxpayer, pay to have somebody incarcerated for leaking information about a judicial appointment? I do not want to, it is nonsense and it does not do any good. When somebody is stuffed into a prison for five years, he or she is not likely to come out as a good citizen and he or she will cost the taxpayer a hell of an amount of money. I will leave it to Senator McDowell.
I indicate that the reason our amendment to section 28(2)(b) was an indictment for a term of imprisonment not exceeding five years or a fine or both was simply that if such a power is not there and it is not a serious offence to do this, the Garda has no right to arrest anybody who it suspects of having committed the offence, no right to investigate or seize various-----
No, it is not mandatory, but I will explain it to Senator Norris, through the Chair. When the Official Secrets Act 1963 applied to all members of An Garda Síochána, a habit had broken out among some members of disclosing harmful information to the media, and the Attorney General of the day was informed by the Commissioner of An Garda Síochána that unless he had a power of arrest, he had no capacity to investigate anybody, either a journalist or a garda, who had published such information because all they had to do was politely decline to co-operate with the Garda's inquiries and every such inquiry immediately went into the sand. It was as a result of that issue that the harmful information provision was put into the Garda Síochána Act 2005 because the then Commissioner, Mr. Pat Byrne, had informed the Attorney General at the time that he was more or less powerless to carry out any investigation of these leaks unless he had statutory powers on the commission of a serious offence.
A number of points have been raised by Senators arising out of Senator McDowell's contribution. In particular, the issue was raised some moments ago of persons who are not shortlisted being aware of their position. The Bill makes no provision for informing the applicants of their position in respect of shortlisting. It does not prohibit the commission from doing this either but I refer to Part 8 of the Bill later on under section 53(5)(h) where the Bill specifically refers to "the need for good standards of communications 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 here-----
No. I am open to giving due consideration to any amendment the Senators wish to table, but for the purposes of this debate we are dealing with amendments that have already been tabled. The points that have been raised that were flagged earlier in the debate are now the subject matter of amendments.
I refer specifically to the role of the Attorney General in communicating with Cabinet on the recommendation process. Senators will be aware that it was an amendment in my name on behalf of the Government that has restored the position of the Attorney General to the-----
-----commission process. Senator McDowell's point on confidentiality is about whether those requirements imply that the Attorney General cannot divulge to the Cabinet the names of persons who have not been recommended by the commission. If the Attorney General is free to give such information to the Cabinet, it is suggested that the Bill should be amended to make that clear. Specific reference was made to a situation where the Cabinet might be of the view that it would not appoint a recommended person and then the Attorney General could be asked about another applicant or the status of that applicant. If we look at the current job process, for example, where all of the relevant names are brought to the attention of the Minister at some stage, we are now being queried on whether it would be permissible for the Attorney General, as legal adviser to the Government, to advise the Government against the recommendations of the commission in the context of there being other people or, as the Senator has said, better people who it is presumed have made an application.
I want to be clear on sections 27 and 28 on the definition of confidential information. It includes "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 "proposals of a commercial nature or tenders submitted to the Commission by contractors, consultants or any other person" Section 28 makes it clear that a member of the commission, except for the purposes of the Act, in relation to persons applying for judicial office, shall not disclose to persons applying for judicial office, among other things, the proceedings of the commission. The import of this is clear. We have amended the Bill here. The Attorney General is a member of the commission and he or she will be bound by the same statutory obligations as other commission members. As a member of the commission, that must be the case and the Bill is clear as to these obligations. The precise information that is brought to the attention of Government does not include the provision of the names of persons who are recommended, nor does it include the provision of the names of persons who are not recommended. It is also clear about the decision-making process and the procedure for recommendation by the commission.
This is important and there are strong arguments that we have made time and again in this House, and indeed in the Lower House, on the need for confidentiality in these matters. I invite Senators to accept that. The policy is that only in limited circumstances will names other than those recommended be forwarded by the commission. That is where the commission is unable to recommend three names and that is not what the Bill currently provides. My amendment No. 88 will address this matter later. The Attorney General, as a member of the commission, will be bound by the provision on the disclosure of information.
I am grateful to the Minister for making very clear what I had always feared to be the devastating hole and error at the heart of this legislation. The Minister has just made it clear now that the policy is that the Government would be kept in the dark and expected to look to the shortlist except where it falls short of the maximum number available in the shortlist and that it will be cast in stone that the Government will be kept in the dark on such a matter.I believe in my heart that this is a fundamental assault on our constitutional framework, especially in the case of appointments to the Supreme Court. I know from my experience as Attorney General, as Minister for Justice and Equality, and as Tánaiste that the Government, when considering appointments to the Supreme Court, not merely has the right but has the duty to make appointments to the Supreme Court which reflect values which it holds. These are not values that seven people chosen by the Public Appointments Commission hold but values the Government has.
That is what the Constitution requires. It is entirely unconstitutional to attempt to invade the Government's function in this matter, which is a democratically accountable function. It is a non-delegable function of the Government, given by the Constitution, to decide who should and who should not be on the Supreme Court.
There could be two equally capable lawyers but the Government might decide, on grounds of gender, that one should be on the Supreme Court. There could be two equally capable and honourable lawyers where one is a drastic social conservative and the other a drastic social liberal, and the Government could say it did not want one of them on the Supreme Court. It is not merely proper but is mandatory on the Government to exercise its own discretion in these circumstances. It is not an avoidable function and one cannot say people in an office block on the far side of town can come up with three people for the court. We cannot do that constitutionally. The people who devised this legislation would have had the backing of some members of the Judiciary but, while I do not want to be critical of the Judiciary, it sometimes talks about its own interests. The members of the Judiciary in question do not, however, have the last word on this.
The Minister has told us that it is the intention of this statute that members of the Government should be kept in the dark as to those who were willing to seek appointment to the Supreme Court but were not shortlisted by the process. He said the Attorney General, sitting at the Cabinet table beside the Taoiseach, should be prohibited by criminal law from disclosing that information to members of the Cabinet. To use a Trumpism, how bad and how sad a proposal is this? It will be a crime for the Attorney General to say he or she has a shortlist of three people but that Mr. Justice Norris is ten times better.
It will be a crime for the Attorney General to say that while a certain person has not been shortlisted three times, he is entirely suitable for the position and that the Attorney General just wanted the Cabinet to know this before, collectively, they made up their minds about any or all of the people on the shortlist. That, however, is what the Minister is asking us to do. He is asking the Government to play blind man's buff in the context of a commission which is not merely wholly independent of Government but is also composed, in the majority, of people who are not legal practitioners or legally qualified.
The Judicial Appointments Advisory Board, as it works at the moment, is ideal in one respect, namely, that the majority of its members are people who know how the legal system works and what makes for a good or a bad judge. Government can be aware of the shortcomings of the JAAB process by simply looking at the list of people who applied and who were not recommended. I find it alarming that, if a position on the Supreme Court comes up and three names are put on a list, the Government must be kept in the dark as to the identity of all the other people who applied for that position from the High Court, the Court of Appeal or the Supreme Court itself. How can that not be a gross invasion of the Government's function under the Constitution? How can it be that, if Ms Justice A or Mr. Justice B indicated a willingness to be promoted to the Supreme Court, it must be kept secret from the Government as a matter of criminal law? That is a shocking idea. I am amazed it has not occurred to the Department of Justice and Equality to understand how shocking the idea is for the Cabinet to be kept in the dark, on pain of somebody committing a criminal offence, about the willingness of somebody to serve in the Supreme Court who has not been recommended by the process.
The Minister has fairly and rightly conceded to me that the Bill cannot go the full hog and exclude the Government's capacity to make a non-recommended appointment, as it is provided for in the legislation. He is saying, however, that Government has the right to appoint somebody who is not recommended or shortlisted but that it is a criminal offence for anybody to tell the Government that a person was willing to serve and has not been selected. How crazy is that as a legal provision? It is very difficult to understand how anybody could seriously defend the proposition.
We have now heard it stated, for the first time and in the clearest possible terms, that secrecy has been imposed even on the Attorney General, who sits in Cabinet as the legal adviser to Government but, while not a member of Cabinet, is bound by Cabinet confidentiality. It is grotesque and a fundamental attack on our constitutional values for him or her to be committing a criminal offence if he or she says Ms Justice A was an applicant but had been overlooked. It is a fundamentally misconceived attempt to circumscribe the constitutional function of the Government.
The Bill claims to admit that the Government has the right to ignore the recommendations of the judicial appointments commission and to appoint somebody whom it wishes to appoint but, at the same time, it purports to say the Government must be kept ignorant of these facts. The Attorney General, sitting at Cabinet and under the rubric of confidentiality, cannot inform the Government of the people who were willing and who, in the Attorney General's opinion, were better candidates but were turned down, nor can he or she tell the Cabinet that four people had been turned down, any one of whom would have been better than the three who were shortlisted.Why must this be done? I will tell the House why. It must be done because of a misconceived desire to satisfy the desire of one member of this Government to reduce the Government's discretion in this matter to zero while paying lip service to the fact it has a totally different right to ignore the whole process completely, if it so wishes. That is why it is being done. It is being done to create the illusion that, in future, the Government will be effectively confined to the three-person shortlist and that it will be almost impossible for the Government to escape the three-person shortlist because it would be a criminal offence to tell it if there was somebody outside the three-person shortlist or a number of people whom it would prefer to nominate.
I find this remarkable. When it comes to the Supreme Court in particular, I find it shocking that this suggestion is made, and that it be a criminal offence for the Attorney General to tell the Government, "The following four judges have been excluded from the shortlist and are willing to serve, and on the advice of the Attorney General, they would be at least as suitable, if not more suitable, than the three people recommended." I cannot see any justification for such a provision. What is more, given the explanation that the Minister has candidly made of both the policy, which is to that effect, and the law, which he considers will be to that effect if this is legislated for, I believe it is plainly unconstitutional. While other people might have different views, I believe very definitely this is an unconstitutional provision. I believed, when I saw the Attorney General added, that it was possible the Government would hold out the possibility that the Attorney General, as a member of the commission, could advise the Government in confidence about what did or did not happen at the commission, and who was or was not successful, or whether he or she, having seen the last three on the shortlist, believed they were knocking out superior candidates almost as a matter of policy and making the shortlist correspond to ideas of their own, which might or might not be shared by the Government. I believed it was possible that the presence of the Attorney General might be the bridge whereby this patent unconstitutionality might be avoided. I am grateful to the Minister for admitting that, in his view of the Bill as he is presenting it to this House and as he expects it to be passed, not merely would the Attorney General be bound as a member of the commission in civil law not to disclose such matters to the Government but would commit a criminal offence if he or she did so. I think that is really wrong.
In this context, I draw to the attention of the House to another provision of this legislation which compounds the problems about which we are talking. I ask the House to consider section 62 of the Bill as passed by Dáil Éireann. Section 62 states:
(1) In this section-(a) "applicant" means an applicant under section 39 or a person who has expressed the interest referred to in section 44(1) and "application", in relation to the second-mentioned person, means the steps under section 44 to deal with that expression of interest...(2) An applicant shall not attempt, and shall not procure or counsel another to attempt, in either case whether directly or indirectly, to-(a) canvass, from any person involved in the process-----
Not merely is it a criminal offence for the Attorney General to tell the Government that, say, Mr. Justice McDowell wants to be promoted, it now becomes unlawful and presumably misconduct for Mr. Justice McDowell to seek by the back door to inform the Government that he wishes to be appointed, with a view to being appointed.
This is a central provision of the legislation. If I am right, and if the Minister's concession is taken at face value, and I take it at face value that this is his interpretation of the legislation, we are now faced with a situation where it is unlawful for somebody who wants to be appointed to inform the Government of that fact with a view to securing appointment, it is unlawful for the Attorney General to tell the Government that that person has not been short-listed and it is criminal for the Attorney General or for anybody else to tell that to the chairman of the Bar Council, or whoever is on this commission. It is criminal to tell the Government, "I am unhappy with this shortlist. There were far better people. I am really unhappy. I am bound not merely by a duty of confidence but bound by the criminal law itself not to reveal that to any member of Government." We have an horrific situation on hand if that is to be the law. It can be explained only by a desire to make this judicial appointments commission a subcommittee of the Government when making these appointments, so that their word goes, nobody can really circumvent it and it is wholly impossible to do it.
I then ask the following question. The Minister is aware that it is provided in this legislation that nothing in the Act prevents the Government from making an appointment entirely separately. How does that happen in the future? How can it happen if the person who wants the appointment cannot canvass for it and the people who are aware of the disappointed candidate's identity cannot say that? How can the members of the Government, sitting over in Government Buildings, one day say, "Whatever happened to Mr. Justice Bloggs or Ms Justice Bloggs?" They are then left in the dark because the Attorney General cannot even tell them because somebody will arrest him if he does so and charge him in the District Court. He cannot even tell them that the person was an unsuccessful applicant, and Mr. or Ms Justice Bloggs cannot even lift a phone and tell anybody they have not been short-listed, if they know it, which is a second question. Third, nobody on the commission, not even the Chief Justice, the President of the High Court or any other judge can inform the Government, "By the way, we had a really good raft of four judges, all of whom were overlooked by the commission in arriving at its shortlist." Then, the Minister says there is, notwithstanding this legislation, a constitutional right to make an appointment wholly outside the scheme of this Act on foot of the constitutional right of the Government to do so. It is reduced to meaninglessness if this culture of silence is imposed on the whole process and if nobody can intimate that problem exists.
The Minister referred to the provision in the Act, if I can find it-----
Is the Minister saying that it would be mandatory for the commission to inform disappointed applicants of their status or is he saying that it would not be mandatory, but it would be good practice to do it? Surely in all fairness to a Supreme Court, High Court or Court of Appeal judge who has served the country for 15 years it should be clearly the case that they should know whether they were shortlisted. What other system would operate on that basis?
When I was Minister for Justice and Equality at least the people who were shortlisted for promotion in the Department knew who they were and the others who were not shortlisted were informed that they had not been. Some were gravely disappointed at various grades of appointment. In fairness to the applicants for a process where they are interviewed and, as this procedure will involve, where they submit their whole life to a minute examination to see are they good people to appoint to the court, surely they are entitled to know whether they are shortlisted. If the unsuccessful person is entitled to know that they have not been shortlisted, how can it be right that they should be informed but that the Cabinet should not be informed? How can that possibly make sense? It does not make sense.
To attempt to keep the Cabinet in a state of ignorance as to the process but to ask this House to assume that somehow under subsection (h) the commission may, or will, or must, depending on what the Minister's remarks were supposed to mean, inform unsuccessful applicants of what happened to their application seems to be utterly contradictory. In case the Minister thinks I am being wholly negative I am not. I am suggesting that in the context at the very least of sitting judges, this whole procedure should not apply at all. A judge of the High Court, the Court of Appeal or the Supreme Court, if a promotional opportunity comes up, is entitled under a protocol to inform the Secretary General to the Government of his or her willingness to be promoted and let the Government be informed of that fact. The Minister is trying to end that. I regret to say that is a deliberate subversion of the Constitution. It cannot be defended in either logic or law.
If the Minister told me that he intended to bring forward a Report Stage amendment to allow the identity of unsuccessful applicants be made known to the Cabinet, which would leave it in the position of asking the Attorney General about Ms Justice so-and-so and why should it not appoint her under its constitutional power, I would be happy, but the Minister is not going to do that. If he told me that the Attorney General could inform the Government where she or he thought it proper that three or four so-called better applications, in the view of the Attorney General, had been turned down by the commission in favour of the three that had come forward, I would be happy. If the Minister told me that this did not apply in particular to the sitting Judiciary, that they did not have to go through this process, that they were all considered potential appointees and that the Government was at large, as it is under the Constitution, to appoint any of them, then I would be happy, but none of those things has been offered to this House to excuse what I consider to be an inexcusable proposal to subvert the Cabinet's function in this matter, and I strongly oppose all of these measures.
I think we are now in a rather serious situation because Senator McDowell, who, as I know to my benefit, is a very professional, very highly regarded member of the Irish Bar, practising at the moment, a former Attorney General, former Minister for Justice and Equality, and former Tánaiste, is telling this House that this section is unconstitutional and he is clearly demonstrating the reasons. That should make the Minister pause and consider these matters.
I do not have too much to say about this but what happened to those well-known phrases that used to be trotted out some years ago about politics: openness, transparency and accountability? There is not very much openness, transparency and accountability about this Bill. It seems quite extraordinary that information germane to the decision-making process should be withheld from Government. Can anybody explain that to me? Surely to God the greater harvest of information it has about making a decision, the better. We are now hiving off this process to this commission, which will have no legal people on it. It will have this, that and the other, all kinds of operatives, doodahs, who-dahs, whatnots, consultants, hairpins and God alone knows what-----
I should think it is perfectly obvious that the Government needs greater amounts of information to make a good decision. It is extraordinary that the Government is confined apparently to a shortlist. What happens if an excellent candidate has been omitted, as Senator McDowell said, or several excellent candidates? The Government, in making its decision, knows nothing about them.
The Minister might consider tabling an amendment or maybe I will table one on Report Stage to this effect: why do they not submit the shortlist-----
-----but also the full list so that the Government knows the three or four people who are supposed to be the best candidates, according to this group that is made up of this, that and the other and a collection of hairpins and whatever else we said. It should also have the longlist so that it knows who has been held out of the list. That would enable the Government to make a proper decision. I simply cannot understand this situation. It is laughable. It is ludicrous to think that for giving information that is germane to the decision-making process, the Attorney General could go to jail. It is Gilbert and Sullivan. I hope the Minister will think again about this matter.
I look forward to hearing Senator McDowell continue to elaborate his views on this process. When somebody of his substantial reputation and standing says that a section of the Bill is unconstitutional, this House is bound to pay attention.
I will not speak for long and I have been listening to the debate with great interest. I echo Senator Norris's words and it is of concern if Senator McDowell is expressing his doubts about the constitutionality of these provisions. The more one reads into the sections we are discussing and the related sections, we can see there are criminal offences created around failures to observe the detailed process. I am looking in particular at section 62(3), which indicates that a person who contravenes subsection (2) shall be guilty of an offence and so on. There are a number of criminal offences and we need clarity in the law around the process. We must be clear about how and what information can be transmitted legally in the course of the process.
There are flaws in which the shortlisting and longlisting is to be prescribed in the Bill. Labour has put in very important amendments that we have not yet reached and they relate to section 46. They are amendments Nos. 92 and 96, which require that the list would be in the order of the commission's preference. It is a very important principle to be observed in any reform of judicial appointments, and which has been recommended for many years by many different critics of the current process. Listening to the debate, I was a bit confused to hear the Minister referring to the Judicial Appointments Advisory Board, JAAB, and then Senator Norris referring to flu jabs. It is unfortunate that the term we all use colloquially to describe the current body recommending appointments to the Government is known as JAAB. I do not know how it would appear in the transcript but there is an extra "A" in the JAAB compared with the flu jab.
I am a little concerned as this is such an important debate and constitutional matters are being discussed but there is a very thin attendance. There is not a single person on the Government benches. There is nobody from the Government. I wonder if there is a method of rectifying that.
-----of Senator McDowell has alerted the House to the fact that provisions of this section of the Bill are clearly unconstitutional. He has put on the record arguments that clearly demonstrate this fact. It is a really serious matter and the House would be well advised to recognise it.
I will come back again to the point of what is perfectly logical or reasonable when making a decision. One element that makes a decision good is the collection of all the required information. This section seeks to exclude the Government. We are not talking about the public or putting the information on the Internet, the "twiddly-diddly" or whatever devices people have these days. We are talking about the process within Government, which is bound by Cabinet confidentiality. Why in the name of God can the Minister not accept Cabinet confidentiality? We are already served by Cabinet confidentiality and it is regarded as beyond the Pale for a member of the Government at a Cabinet meeting to reveal information about what goes on there.The Minister has often referred to that fact. I have heard him in interviews on the wireless in which he says he is terribly sorry but that he cannot give this information because it is covered by Cabinet confidentiality. With what, in the name of God, is the Minister not satisfied? Why should the people who are making the decision be prevented and precluded from having information, particularly when they are covered by Cabinet confidentiality? I simply cannot understand it. Will the Minister indicate if he is prepared to introduce an amendment along these lines to present to the Government a list with the first three names underlined, being the recommended ones, and all of the other possible candidates? I do not see anything whatever wrong with this.
A number of issues have been raised since I last spoke. The most important point in all of this discussion on the amendments to the section is that the constitutional position of the Government in the appointment of members of the Judiciary is not being changed in any way, nor could it be. It has not been expressed by anybody that a constitutional amendment to change it would be either desirable or should be contemplated.
To my knowledge, he has not raised this issue.
I return to the very serious point raised by Senator McDowell. Of course, I acknowledge both his experience and expertise in this regard. However, it is not the first time I have heard him raise constitutional issues about Bills and something did not turn out to be the case.
-----make the same point numerous times in the same way. Whether he is correct, why was he allowed by the Chair to keep repeating himself and waste our valuable time and perhaps money? He then asks if things can be proceeded with, please.
I do not believe my integrity has been called into question . However, I hope the Minister is not doing so, as I believe it may have been said, before I was back in the Chair. There are rules that allow Members to repeat points on Committee Stage.
The important point to come back to is the one made by Senator McDowell, that the membership of the Attorney General on the commission is important. It has been the source of great controversy. I am pleased that Senators have acknowledged the important role the Attorney General plays in this process. Ultimately, when the Bill if finally enacted and signed, the position of the Attorney General will so acknowledged.
When Senator McDowell speaks about the proposed new regime in the commission, he contrasts it rather unfavourably with the current position on the Judicial Appointments Advisory Board, JAAB. He knows that when he speaks about the expertise, the experience and knowledge that form the views of the JAAB, they come, by and large, from members of the Judiciary, as well as legal practitioners. He and other Senators neglect to acknowledge that following an amendment made in the Lower House, all of the courts will be represented on the commission and that the expertise and experience of members of the Judiciary will follow through to the commission in the same way that I assume they do in the current JAAB process. I am not privy to the minutes of JAAB meetings. I do not receive first-hand reports on the proceedings of the Judicial Appointments Board in the same way as I will not receive them from the commission. I believe that is desirable. It is not up to us, as public representatives, to second-guess the process within the JAAB. If judicial experience is important in the context of the JAAB, as I expect it is, that same experience can be drawn on within the new commission, even more so thanks to the amendment I secured on an earlier Stage. That expertise will be drawn from the same people, namely, the presidents of the courts, and continue in the new body.
On the matter of constitutionality, I acknowledge the expertise of Senator McDowell in these issues. On policy formulation in the context of the Bill, we have to remind ourselves that it concerns the reduction in the number being recommended to three persons; the order of preference; no other names being brought forward; and the provision on confidentiality, all of which have been approved by the Government. How have they been approved by the Government? They have been approved based on the stated advice and expertise of none other than the Attorney General and his office.
The Senator's point and that of Senator McDowell is that keeping Government in the dark and the non-disclosure of information to it is in some way an assault on the constitutional framework of the State. Senator Norris makes an interesting observation on the issue of Cabinet confidentiality which should be obvious to each and every one of us. I will not get into the issue of what is and is not said at a Cabinet meeting, but I am satisfied with the outworkings of the doctrine of Cabinet confidentiality. However, I will not be drawn into a debate on the matter here. However, I acknowledge the importance of Cabinet confidentiality and the manner in which our public affairs are ordered and the accompanying or consequential doctrine of collective Cabinet responsibility. As referenced by Senator McDowell, The Attorney General sits at the Cabinet table.
The Attorney General has advised on the constitutionality of this section. The expertise of the appointments board will be drawn on. Issues of Cabinet confidentiality and collective Cabinet responsibility will not be altered, changed or interfered with in any way as a result of this legislation or any part thereof. I want to make a final point, if Senator Norris does not have an issue.
-----or otherwise. I remind him that Part 8 represents good practice. Of course there will be an acknowledgement of the process of application. If somebody makes an application, that will be acknowledged in due course. The person in question will be updated and duly informed-----
-----of the process. The final point I would like to make relates to the process of public consultation. This arises from Senator McDowell's assertions that serving judges will be excluded from the need to continue to notify the Government. There was a process of consultation prior to the introduction of this Bill. It was long before my time in this portfolio. It happened under the stewardship of the former Minister, Alan Shatter. The overwhelming view of those who contributed to the public consultation process, including senior members of the Judiciary, was that all appointments should be treated in the same manner. This would mean that judicial promotions would be subjected to the new process, and that is provided for in this Bill. I reiterate that this Bill was drafted against the background of an unprecedented process of consultation. To my recollection, it did not take place in the context of the establishment or setting up of the original Judicial Appointments Advisory Board. I repeat that there are no circumstances in which the constitutional position of the Government vis-à-vis the appointment of judges is being interfered with here.
Everyone knows that. When I became Minister for Justice, Equality and Law Reform, the Cabinet handbook provided that when the justice Minister intended to propose someone to the Cabinet for appointment as a judge, he or she had to consult the Attorney General prior to doing do. I presume the Cabinet handbook still contains that provision. I think the rule is probably still in place.
I want the reason for this requirement to be clearly understood. It was considered that the Minister should not suddenly propose to the Cabinet a name that he had not discussed in advance with the Attorney General. It became a procedural requirement that there should be consultation with the Attorney General of the day.
That situation existed at the time because the legal adviser to the Government - the Attorney General - was expected to be in a position to advise the justice Minister about his proposal, while also advising the Cabinet about the suitability of the person in question. The Judicial Appointments Advisory Board was in existence at the time. Maybe this has gone out of the Cabinet handbook since then - I do not know - but it was in the handbook when I was in the Cabinet. That is the procedure which applies.
The Minister has said it was decided on foot of the public consultation process that all appointments should be made in the same manner. If that is the case, why did he propose a special committee for senior appointments in the original form of this Bill? That proposal somehow evaporated off - it was changed and emasculated - when amendments were made during the Dáil process. The fundamental point is that the Minister is contending that nothing in this Bill, if enacted, will curtail in any way the Government's capacity to make an appointment at its own discretion in accordance with the Constitution. That is a statement of fact because the Constitution is superior to this legislation, which means the Government cannot have this right taken away from it. I ask Senators to examine section 40(3), which acknowledges this fact in an elliptical manner. The subsection in question provides that: "Nothing in subsection (2)shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge." It is clear to me that this provision was included by the draftsman to acknowledge the constitutional realities. One can have 1,000 judicial appointments boards or commissions, but in the last analysis it is the prerogative of the Government under the Constitution to make its own decision quite independent of any advice that may come to it, however it is dressed up. Regardless of the millions of euro that are spent on the establishment of a different system, it remains the Government's constitutional prerogative, function and duty, if it considers it appropriate, to make its own decision in accordance with its own wishes on the matter.
Section 40(3) will not save this Bill from a challenge to its constitutionality if the other provisions of this Bill have the effect of causing the Government to make a decision entirely in the dark, except by reference to a shortlist it has received. It cannot be said that the Government still has the right to make an appointment of anybody it wants while simultaneously saying that it may not know who wants the position, who applied for the position or who has consistently been disregarded on the shortlist. This little subsection, which provides that "Nothing in subsection (2) [or, presumably, in the Act] shall be construed as limiting the advice the Government may give to the President", will not save this Bill from a challenge to its constitutionality.If the entire rest of the Bill does de factolimit the Government in giving advice to the President, then the Bill itself is unconstitutional. As to what Senator Norris said about me expressing my views, I am what I am. I do not claim to be infallible. The Minister is right; I have in the past been wrong about things being unconstitutional. The Minister is well aware that Attorneys General are not infallible. Much to one's surprise, the odd piece of legislation gets invalidated by the courts even though it was constitutional in one's judgment at the time of advising the Government. These things happen in the strangest ways. One might think that a prohibition on asylum seekers applying for employment was a constitutional provision, but the Supreme Court ruled that after a certain period of time it becomes excessive and disproportionate.
Nobody is infallible in this area, and I do not claim infallibility here. However, I do believe that we must be in the realm of common sense.
It is very clear to me that what we are proposing here is a legislative scheme to keep the members of the Government ignorant of the choices that are open to them. That is what it is about. Section 40, which states that nothing limits the advice of the Government, is a replication of a provision from the existing Judicial Appointments Advisory Board, JAAB, legislation. It is not a dead piece of legislation or something which is entirely exceptional. When the Government decides to appoint someone to the Judiciary without reference to JAAB, as it has done on occasion, it is obliged to differentiate between its appointment and a JAAB-recommended appointment by the terms of the notice published in Iris Oifigiúil. This must state that the appointment either is or is not on foot of a recommendation of JAAB. That is the present situation, and it is proposed to continue that with this legislation. The Government would have to 'fess up, so to speak, if it decided to go outside the process and appoint somebody directly. As I have said, that is not a dead letter. It is well known that the current Chief Justice was appointed directly by the Government without any JAAB process. I instance that to say that those were decisions made by the then Government which had nothing to do with JAAB, even though JAAB was there.
Exactly. I am obviously not suggesting there was anything wrong with it. I am saying quite the reverse. The Government was working within its capacity to do that. However, this legislation would oblige the Minister to start the JAAB process, which will now be the judicial appointments commission, JAC, process, for any vacancy. The Cabinet would not be allowed to know the identity of anybody else who might be willing to be appointed insofar as they might signal as much to the judicial appointments commission by application. Moreover, the Attorney General would be prohibited from telling the Cabinet that a person they might appoint was in fact an unsuccessful applicant. I do not want to repeat myself, but as I have said earlier that defies common sense.
I will give a simple example. Let us suppose a vacancy arises on the Supreme Court. At the moment, the people eligible for a vacancy on the Supreme Court are all the existing members of the High Court and all the existing members of the Court of Appeal, which is a group of around 40 to 50 people. I have not counted the exact number. None of them has to indicate an interest in the position under the JAAB process. I understand, and perhaps the Minister will confirm, that an arrangement was made whereby they could inform the secretary of the Government of their willingness to be appointed to a position so it would be easier for the Government to see who is interested and who is not and then make the choice. Qualified barristers and solicitors of 12 or ten years' standing are also eligible. They normally went through the JAAB process, but not mandatorily so.
The Minister is now telling us that he wants the Cabinet not to know who is willing to be appointed. He is doing that in two ways. First, he is bringing forward the provisions of section 62 to stop applicants from signalling their wish to be appointed to the Government. Further to this, he is bringing in the particular amendments to section 27 we are now dealing with, to say that nobody, including the Attorney General, should be entitled to tell the Government about this on pain of criminal offence. I just cannot see why this should be the case.
This is the slightly odd feature. Let us suppose the Government decided that Ms Justice Bloggs, or Mr. So-and-so, senior counsel, is the person it wants to put on the Supreme Court. Rather than press the button and have the judicial appointments commission start conducting interviews and engaging in the elaborate process that is provided for here, the Government could in fact ask the Attorney General to visit the judge in her chambers or the barrister in the Law Library and ask if they would be willing to take an appointment to the Supreme Court. There would be nothing wrong with that. If that process was followed, only part of the public would know that it was not a JAC appointment. I think the Minister has probably told us there is one such person, the person who is watching the debate here and has texted the Minister. In his spare time, when he is not watching the proceedings in this House, this person probably goes through Iris Oifigiúiland studies the judicial appointments notices. That is the only way this will be signalled. If that judge or barrister is appointed to the Supreme Court, the only way the public will have firm statutory confirmation that the JAAB or JAC process has not led to that particular appointment will be by studying the notice in Iris Oifigiúil.
I wish to ask the Minister a simple question. I want to be clear about this. Is he saying unequivocally that the provisions of section 53(5)(h), which are the commission-----
This is an obligation imposed on the procedures committee by subsection 5. Under paragraph (h), it shall 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".A very simple question arises. They have to acknowledge it. It would be remarkable if they did not even say they acknowledged receipt of someone's application, but I am asking a simple, unequivocal question, to which there is a "Yes" or a "No" answer. Will they be told, yea or nay, that they were or were not shortlisted, or will it be kept secret from them? Let us imagine that I am a member of the Supreme Court and applying for appointment as Chief Justice. Will I be told "Yes" or "No" in answer to the question as to whether I was shortlisted for the job? If, during my entire career as a judge, I apply for promotion three or four times, will I be told "Yes" or "No" as part of the process on each occasion, that I have or have not been successful? The relevance is simply that if the unsuccessful candidate can be told that he or she has failed to make the short list, it seems to be grotesque that the Government, the constitutional duty of which it is to make the appointment, should not be given the information. Why am I entitled to know whether I am or I am not on the short list as an applicant but the Government which makes the appointment is not entitled to know whether I was an applicant in the first place? To me, that is the major shortcoming of this provision.
There may be somebody in the Attorney General's office or the Minister's Department who believes section 40(3) immunises the Bill from all challenges on the basis that the Bill acknowledges that the Government is free to act entirely outside the procedures laid out in the legislation. That would be sound advice if it were not also a feature of the legislation that it will become a criminal offence to tell the Government that somebody has applied for the job and not been shortlisted. I refer to whether it will become a criminal offence to impart that information to the Government in either of two ways. What will happen if the unsuccessful applicant who is horrified that he or she has not been shortlisted and has been so informed - the Minister has not given us a clear answer to the question as to whether he or she will be informed - rings the Attorney General to say, "This is the third time I have been turned down for promotion. Would you mind telling the Taoiseach that I have been turned down on three occasions?" Will the Attorney General be free to do so? Alternatively, will the Attorney General be free to say to the Cabinet that he believes the short list is grossly deficient and that there were four better candidates than the three on the short list before it? That is the crux of the issue we face and we have to have a clear and unequivocal statement from the Minister on it. We have had his clear view that he will make it a criminal offence for the Attorney General to impart the information to the Cabinet. That is one thing. However, we have not had his clear exposition as to whether the commission will be entitled or obliged to inform unsuccessful candidates of their failure to be shortlisted.
The last point I want to make before we adjourn-----
Before I cede the floor to Senator Norris, the mere fact that there is Cabinet confidentiality cannot be used as a hood and wink basis for the Attorney General to impart, behind the secrecy of the Cabinet room, information which it would be a crime for him to divulge. In other words, we cannot say Cabinet confidentiality allows the Attorney General of the day to commit a criminal offence. I report progress.
In reporting of progress I note that Senators do not intend to sit next week. In the interests of efficiency and moving matters on, I will be available all day on any day next week to progress them. I suggest the Seanad sit on Wednesday. We could start at 10 a.m. and sit until midnight to assist Senators.