Gerry Horkan (Fianna Fail)
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I welcome the Minister for Justice and Equality to resume our consideration of the Bill. I was in the chair when we adjourned the previous day, and progress had been reported on amendment No. 66. We are dealing with amendments Nos. 66 to 71, inclusive, which are related and may be discussed together. Senator McDowell had concluded his contribution on the report of progress, but he may have further comments to make. Other Senators had contributed. If no other Senators are offering, I will call the Minister to respond.

Michael McDowell (Independent)
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Senator Norris referred to amendment No. 90 in my name, as it arose in discussion. The Senator referred to missing words in subsection (2) of the amendment. I do not know how they are missing; it is probably my fault and I do not blame the Bills Office. I ask that the amendment of the text-----

Gerry Horkan (Fianna Fail)
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May I suggest that this be done on Report Stage?

Michael McDowell (Independent)
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No, because we are discussing it now and I do not want to propose nonsense. I believe there is a slip rule for minor matters.

Gerry Horkan (Fianna Fail)
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With notice, the Senator could have proposed an amendment to the amendment, and there could still be time to do that by Thursday.

Michael McDowell (Independent)
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Perhaps when we get to that amendment. That is fair enough.

Gerry Horkan (Fianna Fail)
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Do any Senators wish to speak to this group of amendments?

Michael McDowell (Independent)
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I would just like to make a few points. In the intervening period I have considered what the Minister frankly admitted to be his understanding of the proposed impact of the legislation, including his amendments to sections 27 and 28, and the inclusion of the Attorney General as a member of the commission. I have spoken to persons high and low about the suggestion that it should be a criminal offence for the Attorney General to disclose to the Cabinet the names of judges who applied for promotion and who have been unsuccessful.There was a sense of general astonishment that the Minister could be contemplating a provision that would put the Attorney General in such an invidious position. Like the Minister, I strongly support the inclusion of the Attorney General on the commission, if there must be a commission at all. The Attorney General should be there with absolute regard to his or her function as the legal adviser to the Government.

I do not want to repeat a point I made at great length on the previous occasion, but this legislation purports to acknowledge that it is the right of the Government to promote any eligible judge to the Court of Appeal or the Supreme Court, regardless of whether he or she is recommended. The escape hatch from complete unconstitutionality is that the legislation expressly recognises that the Government can decide not to have any regard to the views of the commission and can make its own decisions in the context of promoting eligible judges to the Court of Appeal or the Supreme Court, or to the presidency of either. It is a really extraordinary proposal to state to the Attorney General, who is supposed to advise the Cabinet on the options open to it, in statute that he or she would commit a criminal offence if he or she told it that a certain judge had expressed an interest in a particular appointment and had not been short-listed but was available. It is extraordinary to inform the Attorney General that he or she cannot tell the Cabinet that Ms Justice Bloggs wants a position, would be a good appointee and has applied three for promotion to the Supreme Court on three occasions but has been denied inclusion on the list. The proposition that a criminal offence would be committed in those circumstances is staggering. The Attorney General should not be so circumscribed in what he or she can tell the Cabinet.

This matter should be reconsidered at a fundamental level. The current Attorney General would probably be in a slightly invidious position in advising as to his function in respect of this issue. It is improbable that the Attorney General should consider it correct that he would commit a criminal offence if he imparted this information to his Cabinet colleagues. It calls into question his membership of the commission if he is to be circumscribed in this way. In order that there is no misunderstanding, I must point out that it has been the practice in this country since time immemorial that successive Attorneys General considered themselves not merely free, but duty-bound - particularly when asked by the Government, the head of Government or the Minister for Justice and Equality - to approach individual members of the Bench and ask them if they would consider promotion, and also to approach senior solicitors and barristers and ask them the same question. What I really fear about this provision, taken in conjunction with the presence of the Attorney General as a member of the commission, is that we will have the worst of all worlds. The Attorney General will effectively be silenced or sidetracked by a provision which imposes a criminal liability on him or her should he or she inform the Cabinet of the true position regarding what is happening at the commission.

Why should the Government not know what is happening at the commission? The Government is bound by Cabinet confidentiality, so why should it not know that eight senior judges are constantly being turned down by the judicial appointments commission in favour of other nominees? What common-sense or practical purpose is served by putting the Government in the position of having to play blind man's buff regarding who is available for judicial appointment and who is anxious to be appointed? The Government will be put in the position of not being able to be informed of the true situation, on pain of the imposition of the true situation. As stated previously, the effect of the ban on canvassing, the presence of the Attorney General on the commission and the prohibition on him or her - under pain of criminal sanction - not to disclose the identities of unsuccessful candidates to the Government, would be to drag the Bill across the line into the realm of unconstitutionality. I repeat those points and re-emphasise my view that this is a remarkable new excursion in Irish constitutional politics, a remarkable inhibition on the role of the Attorney General and, above all, a remarkable circumscription of the real function of Government - which cannot be taken away from it - to make appointments in the full knowledge of who is available for judicial appointment and who is not and who wants to be appointed and who does not.

As I understand it, in order to prevent unseemly correspondence between judges and Ministers for Justice and Equality, a convention was recently entered into whereby members of the Bench who wished to be appointed to more senior positions under the current system were invited to notify the secretary to the Government of their desire in this regard. I see no reason that should not be preserved. If possible, I would like the Minister to outline his understanding of the ban on canvassing and certain other statutory provisions this Bill would enact and whether members of the Judiciary will be in a position to inform the secretary to the Government that they wish to be appointed. By way of a footnote, one of the most extraordinary features of what is proposed is that we do not yet have clarity as to whether a judge or a candidate who is not successful in being short-listed in his or her application will be informed of that fact.It must be a very strange provision indeed in statute law that a judge who applied on numerous occasions to be shortlisted would not be informed that his or her application to be shortlisted was turned down on every single occasion by the commission, a majority of the members of which are lay people.

Charles Flanagan (Laois, Fine Gael)
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We have already had considerable discussions on this section and on these amendments. I assure Senator McDowell that there is no unseemly correspondence from the current Minister for Justice and Equality to the Judiciary or vice versa.

Michael McDowell (Independent)
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I was talking about the past. I was not suggesting there is such correspondence now.

Charles Flanagan (Laois, Fine Gael)
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I do not expect that there will be such correspondence. I cannot comment on the situation under previous Administrations. I want to acknowledge what the Senator has said about the Bill's confidentiality requirements. He has queried whether those requirements imply that the Attorney General cannot disclose to the Cabinet the names of people who have not been recommended by the commission. He has referred tonight and previously to circumstances in which the Cabinet is minded not to appoint a recommended person and the Attorney General is asked about another applicant. In that context, the Senator has referred to the Judicial Appointments Advisory Board provisions, which allow all the names to be brought to the attention of the Minister. He has asked whether it will be permissible for the Attorney General, as the legal adviser to the Government, to advise the Government against the commission's recommendations in circumstances in which other people would be better suited to the position. Of course there are difficulties here because the fundamental requirement of confidentiality, as envisaged under sections 27 and 28, is important. That requirement is clearly set out in section 28, which makes it clear that a member of the commission, "except for the purposes of this Act" shall not "in relation to persons applying for [...] judicial office" disclose inter aliathe "proceedings of the Commission". That is not dissimilar to the situation we have at present, whereby the proceedings of the Judicial Appointments Advisory Board are not disclosed or discussed at any level, for important reasons.

I consider it important for the Attorney General to be a member of the commission. I acknowledge that Senator McDowell has said he believes the Attorney General's membership of the commission is important. We are in agreement on that. In fact, the House is in agreement on that because it has considered amendments in that regard.

Having acknowledged the Attorney General's membership of the commission, I believe it follows that the Attorney General as a member of the commission should be bound by the same statutory obligations as other members of the commission. I am not sure the Attorney General should be treated differently from other members of the commission. The Attorney General of the day brings specific credentials, expertise and experience with him or her. I do not think it would be fair to introduce a hierarchy of membership, whereby some members of the commission have greater powers or certain exemptions that are not enjoyed by others. I think it is fair and reasonable for the Attorney General, as a member of the commission, to be bound by the same obligations of a statutory nature that are made clear in the Bill. The Bill is clear on the precise information that is to be brought to the attention of the Government. This does not include the provision of the names of people who may not be recommended, who have not been recommended, or who might be out there and may be appropriate and suitable but, in the circumstances, are not in the equation.

It is clear that the decision-making process is in accordance with the procedure laid down in the Bill. Of course there are policy issues here. The existence of the commission is such to facilitate the appointment of the best applicants. In these circumstances, three names will be recommended. If we were to give the Attorney General special status or exemptions under the law, the effect of that would be to facilitate second-guessing on the part of the Attorney General, who would then be in a position to undermine the entire process. I do not believe it is the role of the Attorney General and the commission to second-guess a decision that has been made by the commission following due consideration. It seems clear to me, having regard to the status of the Attorney General - I acknowledge the role played by Senator McDowell as Attorney General over a decade ago - that the Attorney General will be in a position to discuss the recommended names with his or her Cabinet colleagues when these matters are being considered by the Cabinet. Of course this will be subject to the accepted confidentiality norms or requirements that apply to the Government. I want to make it clear that as I see it, the position of the Attorney General, like other members of the commission, is such that he or she will be statutorily bound by the terms of the Bill. The role of the Attorney General as a member of the commission will also apply, or will also have effect, when the Government is considering the names that have been recommended.

I listened to what Senator McDowell had to say at length the last time we discussed this matter. Following that debate, I took the opportunity to seek further advice on it. It is clear from that advice that the Attorney General would not be at liberty to say that a candidate who was not the subject matter of a recommendation and whose name did not appear was, in effect, more suitable then any of the three people who were recommended. If that is the point that Senator McDowell is making, I differ from him on it on the basis of the Attorney General's membership of the commission. I see this commission as being similar to other committees on which the Attorney General may be requested to sit, or other situations in which he or she may be requested to get involved. When the Attorney General signs up to a report, it would be unlikely - in fact, it would be unacceptable - for him or her to say something completely different at a Cabinet meeting, or to do the opposite in practice.

Senator McDowell adverted to what he described as a rather invidious situation in which I might seek the advice of the Attorney General and put him or her in something of an invidious position.I do not see it that way. I see the Attorney General needing to be objective about the role and function of that office under the Bill. I do not see that as having any implications, adverse or otherwise, for the exercise of the function of the Government under the Constitution advising the President on the appointments because at Cabinet, the Attorney General will still have the advisory role under the Constitution. I do not see the type of inconsistency about which Senator McDowell speaks. Under the Constitution, the Government can decide whether or not to go with the recommendation of the commission. If it chooses not to go with a recommendation, it is simply rejecting a commission decision but it is rejecting a decision to which the Attorney General was a party. I cannot envisage a situation where we depart from what is the policy issue on the matter of the recommendation of the three names because facilitating something different in effect undermines the policy platform of the Bill. I welcome the fact that the Attorney General will be a member of the commission. I acknowledge the constitutional role of the Attorney General in the Government and, of course, the consequent or overarching power and authority of the Government to reject in their entirety the three recommended names that might come forward. I do not believe it is desirable to have a hierarchy of membership that would allow the Attorney General to have a completely different and enhanced role over and above other members of the commission. That is the essence of Senator McDowell's argument.

Michael McDowell (Independent)
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I have heard what the Minister has said. What he intends this legislation to achieve is now clear. He intends that the Attorney General should be prohibited on pain of committing a criminal offence from imparting to the Cabinet the identity of unsuccessful candidates in the commission. The Minister says that this is appropriate because to excuse the Attorney General from any such obligation would somehow allow him or her to subvert the decision of the commission, assist the Cabinet in doing so or have a status different from the other members of the commission.

Looking to the Constitution for starters, the Attorney General is not just some officer of State. He or she is a constitutional officer of State whose function is to be the legal adviser to the Government. That is the function. The Attorney General is not like the chairman of the Revenue Commissioners or somebody who has just been appointed ex officioto this commission. He or she only holds the position of Attorney General because he or she is the legal adviser to the Government. Therefore, if we say that the legal adviser to the Government is to be ex officioa member of this commission, we must take the Attorney General as we find him or her under the Constitution, which is that he or she is the legal adviser to the Government and comes in that capacity and no other. The Attorney General is not like the chairman of the Revenue Commissioners, the Ombudsman or somebody else who is not a constitutional officer. He or she is being selected directly because he or she is the legal adviser to the Government.

The Minister has spoken about the undesirability of the Attorney General being in a position to, in effect, subvert a decision to which he or she was party but let us get the Constitution right on this. If the Attorney General was adamantly opposed to Michael McDowell, S.C., being on a shortlist and was outvoted by a lay majority, as is possible under this statutory scheme, to say that he or she is party to the decision is stretching things a long way. It involves saying that it is a decision to which the Attorney General is effectively handcuffed whether or not he or she likes it, opposes it or thinks it unsuitable. To say in that context, as the Minister now seems to be implying, that because the Attorney General will be on this commission, he or she effectively has a duty of loyalty to the decision of the commission even where the Attorney General has been outvoted and must not advise the Government to take a different course is to subordinate him or her completely and ignore his or her role as legal adviser to the Government.

Therefore, I do not accept the proposition now advanced by the Minister that this would create a two-tier membership. We are bringing a man or woman on to this commission ex officioto perform a function. By making the Attorney General an ex officiomember of the commission, the only person we are bringing on is the legal adviser to the Government itself. That is a constitutional status. The Attorney General has a constitutional duty to advise the Government on all matters relating to law. It has always been the case that the Attorney General of the day contributes to the debate on the suitability of a judge. I think the Minister candidly admits that there would be no problem with the Attorney General looking at the shortlist and saying it should be "A" rather than "C". In my view, there is no problem with that. That is a function the Attorney General has.

As I said on the last occasion, it may have changed in the meantime but it was certainly the case when I was Minister for justice that the Attorney General had to be consulted under the Cabinet procedures before the Minister for justice made a proposal. Why would that be among the Cabinet procedures if it was not the case that the Attorney General could advise the Government as to the merits of the Minister's proposal? I believe that to function properly as Attorney General, the individual in question should be free at a Cabinet meeting to express his or her views not merely as between the shortlisted people, particularly when it is quite possible that he or she will not have agreed with the composition of the shortlist in the first place, but to indicate to the Government that there are other people who are interested in the job, have not been shortlisted and in his or her view, are more suitable for appointment. I believe this function derives from the constitutional relationship of the Attorney General as legal adviser to the Government with the members of the Government itself and cannot be interfered with by statute. If the Attorney General is to be deprived of freedom to disclose to the Government what he or she knows to be the true situation regarding the shortlist, who was and was not on it and who was and was not available, that seriously impairs the right of the Government to know whether it is making the best appointment.

The Minister says there will be a two-tier membership if the Attorney General was to be excused regarding this obligation. First of all, it is a current obligation on the Attorney General that naturally flows from the fact that Cabinet procedures require the Attorney General to be notified of any proposal by the Minister in advance of and to consult with him or her on the appointment of any person to be a judge.It naturally flows from the constitutional function of the Attorney General that the occupier of that office should be free to give the Government his or her frank evaluation of the shortlist and of the Government's other options including persons who are willing to be appointed but who have not been shortlisted.

Section 40(3), which is about the obligation to consult the commission about a judicial vacancy, states, "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." That clearly is intended to recognise the fact that the Government is at large among eligible people to appoint them to judicial office, that the Government's right to appoint persons it considers suitable is a constitutional right, and that the Government's function in tendering advice to the President is a constitutional right and duty which the Government cannot delegate to anyone else. In the end the Government must be free to make its own decision on this matter.

The Minister then says that the Attorney General would be in a kind of a special category among the members of the judicial appointments commission if he or she was excused from the right to inform the Government of the true situation regarding applications from promotional positions and appointments in the Judiciary. The Attorney General, however, is in a special category by definition because the function of the Attorney General is to advise the Government on the suitability of persons to be appointed as judges. He or she is a special case and the Minister is putting a person in as a special case. It raises the question, if that is not the function of the Attorney General, if that is not his or her status under the Constitution, or if that status is irrelevant to membership of the commission itself, why include him or her? I strongly support the Attorney General's presence, but I know why. It is because the Attorney General should be in a position to tell the Government that certain people are not the best and that, in his or her view, there is somebody better. The Government should be entitled to say that it agrees or disagrees with the Attorney General as the case may be.

It does raise the question of why the Minister sought in the Dáil to have the Attorney General included. If the Attorney General is going to disagree with the commission and to be outvoted and then not be in a position to say that he or she was outvoted, he or she would be in a very compromised position in the Cabinet discussion on the matter. Some Ministers might say that they do not like the look of the shortlist while others might say that the Cabinet has to pay attention to it. They may ask the Attorney General what he or she makes of it and he or she will have to say that he or she cannot tell Cabinet who the unsuccessful applicants were because to do so would be a criminal offence and would break the clear terms of the statute. I cannot see what the function of the Attorney General is at all if he or she is put in that invidious position.

I suggest that there is a problem here. The first thing one should do is not to look at the terms of one's own Bill and say that this will be the law and that will solve the matter. One should look at the Constitution first and ask what the power of the Government is. The Bill itself acknowledges that the commission's recommendations cannot be binding on the Government and that, under the Constitution, the Government is free to make its own decision, including a different decision if it so wishes.

That is the first constitutional proposition. The second is that the Attorney General is the legal adviser to the Government at the time it makes its decision on that very point. The third constitutional issue is that the Government is entitled to have the advice of the Attorney General frankly and honestly given to it by reference not merely to the shortlist before it, but to its options outside the shortlist. It is entitled to be informed of the fact that persons whom some members of the Government might consider more suitable, and who the Attorney General might agree are more suitable, have consistently been excluded from shortlists submitted to the Government.

One cannot wriggle away from the Constitution and just say that this will be in the Bill. Nor can one say that, by the way, the Judiciary recommended something like this. The Judiciary did not recommend that the Attorney General should be prevented from frankly advising the members of the Cabinet about the other unsuccessful people. If members of the Judiciary did so recommend, they would have to put on their thinking caps because if the underlying truth is that the Government is free to go outside the terms of a commission report it must be the case that the Government is entitled to legal advice from the legal adviser to the Government about whether, in his or her view, the shortlist is appropriate or not. I do not see why we cannot just acknowledge that simple constitutional fact. I do not see what the problem would be in so doing.

The point is that one of the problems with legislation is that when it comes before the courts there is this double construction rule. If legislation is open to two constructions, one constitutional and one unconstitutional, and if it is challenged, the courts look at it and seek to give it a constitutional interpretation. That is clear. It is an established part of our constitutional jurisprudence. Here, however, we have a situation where the Minister is telling this House that he intends to put these restrictions on the Attorney General in respect of the advice that he or she can give to Cabinet and that he intends to do it through penal provisions in a statute. He intends the Attorney General to be no different from any other member of the commission in respect of the obligation of confidentiality.

It is utterly and completely wrong to force the Government into a situation where the Minister for Justice and Equality is at Cabinet making the proposal and says that he or she does not know who else was interested, where the Attorney General is sitting beside the Taoiseach at the Cabinet table and does know who else was interested, where the Cabinet is sitting around the table wondering whether the shortlist is the best that can be done, and where it is to be a criminal offence for the Attorney General to tell the Government that in fact there were five other people whom he or she considered to be better but that he or she was outvoted at the commission. I said on the last occasion that it seems to me to be unconstitutional and I believe it to be so.

Some people may think that this will become law and doubt that anyone will have locus standito challenge it thereafter, but I believe that any citizen, and particularly any lawyer who is an applicant for judicial appointment or who wishes or is eligible to be appointed, would have locus standi to challenge the constitutionality of this provision.The President would be well advised to put any Bill which contains these provisions before the Supreme Court for its adjudication on whether what the Minister says he intends the legislation to achieve is compatible with the Constitution. The law is as it is declared to be by the Supreme Court and I do not claim infallibility on these matters but these provisions, taken together are intended to spancel, compromise and diminish the constitutional role of Government and make it more difficult for it to avail of discretions which it is entitled to exercise under the Constitution and which cannot be taken away from it.

Charles Flanagan (Laois, Fine Gael)
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The real difficulty here is that Senator McDowell approaches this matter in a most adversarial way. He sees a shoot-out in the commission and controversy, differences of opinion, rows and votes at every remove. He sees the Attorney General being outvoted and a showdown happening, with the Attorney General being led in handcuffs from a Cabinet meeting. We have been treated to this type of hyperbole for the past number of weeks but I do not think it has a basis in reality.

I would have thought the commission would reach consensus on the appointment of judges and the names to be put forward to the Government to advise the President. I would also have thought that three names could be reached for the shortlist after due consideration. Senator McDowell, however, talks about a vote and a divide, with the Attorney General being outvoted and having to come back to Government to overturn a poor decision made by the commission. I am not sure the extent to which the Judicial Appointments Advisory Board votes on the number of candidates put forward but I would be surprised if there were handbags at dawn every other day at its meetings.

From the very beginning of this debate, Senator McDowell's disposition has been one of adversarial conflict in respect of all amendments but I do not see the situation in the same way. I see the commission as being in a position to advise the Government and to assist and offer guidance in the process of reaching a consensus on the matter of judicial appointments. I see the Attorney General as bringing expertise and experience to Government and using that expertise and experience to advise the Government on the matter of the shortlist. The Attorney General will be in a position to make a positive contribution to Government on the matter of the names that might be before Government but it would not be desirable if, as in Senator McDowell's scenario, the Attorney General was to be outvoted at every remove. It would not be advisable for an Attorney General to seek the power to tell fellow committee members that, while he or she may be in a minority, he or she will get back at them through Government and get the name of his or her person put forward to the President. The Attorney General is in a unique position to bring expertise to the Cabinet table and to participate in the process.

Senator McDowell is right to say Attorneys General are consulted on all appointments, which is right given their unique experience and expertise. I do not believe it is appropriate for the Attorney General to have a veto over all other members but that is, in effect, what Senator McDowell is arguing for. The Attorney General would be in a position to upstage all other members and undermine the commission at every remove but I am not sure that is in the best interests of the commission. It is important that the Attorney General has the same obligations, the same authority and the same requirements under the legislation as other members of the commission. I do not see the Attorney General being compromised or unfairly treated, nor do I see his or her role, function and powers under the Constitution being interfered with by the legislation.

Senator McDowell asked who would inform an unsuccessful candidate who might, ultimately, have been one of the three whose names went forward to Government. Section 43(5)(h) contains a requirement on the part of the commission to ensure standards are applicable and that they conform to good practice.Of course the commission would be informing the unsuccessful candidates, having regard to the obligation to ensure the good and proper standards of the commission in meeting its obligations under the Bill. I do not believe that in the normal course of events, the kind of conflict described by Senator McDowell will be front and centre in every aspect of the commission's deliberations. I do not envisage that there will be the type of adversarial voting that he sees as being endemic in the context of the commission. The manner in which the Judicial Appointments Advisory Board has arranged its statutory obligations and functions in the past will ensure there will be a level of consensus between the lay members of the commission and the lay chair of the commission. This process will be enhanced by ensuring the presidents of the Judiciary will be on the commission. This will ensure a consensus can be forged. I believe that will happen before the Government reaches its conclusions on the matter of the policy decision regarding the three people to be recommended by the commission for further consideration by the Government, including the Attorney General who has a role and function as a member of the Government.

Gerard Craughwell (Independent)
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I want to interject briefly. My colleague, Senator McDowell, is acutely aware of human nature and the way in which people interact with one another. He has made his professional career out of that awareness. While I understand the Minister's point that he does not believe we would finish up with an adversarial position in which the Attorney General is totally at odds with the remainder of the judicial appointments commission, I suggest that not believing it and it not being possible are two different things. It is highly possible that this will happen. Anybody who has ever sat on a committee of any sort in Ireland, or anywhere else, knows that this is possible. Given that we are talking about the most senior law officer in the land, it is also possible that he or she could be at odds with the other members of the commission and could refuse to accept their deliberations. The legislation we are putting in place here will probably last 25 or 30 years. With all due respect to the Minister, we cannot go on his gut feelings on how it will operate. We have to look for the worst-case scenario, which is exactly the scenario that my colleague, Senator McDowell, has just outlined. In such a scenario, who or what will rule? Will the constitutional position of the Attorney General and the constitutional prerogative of the Government rule, or will the legislation rule? I will leave it to Senator McDowell to make any other comments he might wish to make. I am a little concerned that we sometimes proceed on the basis of a Minister's views or opinions which may not be reflected in a subsequent court case.

Kevin Humphreys (Labour)
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I am speaking on the basis of my experience as someone who entered politics in my 40s, which is quite late in life.

Gerry Horkan (Fianna Fail)
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It is not that late.

Kevin Humphreys (Labour)
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It is when one considers that many people come into politics straight from school with very little life experience.

Niall Ó Donnghaile (Sinn Fein)
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There is nothing wrong with that

Kevin Humphreys (Labour)
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I would like to come back to the Minister's remarks. After I became a member of a local authority, I became a member of several committees. Whenever I fundamentally disagreed with the consensus view within a committee, it used to be explained to me that the committee had always worked on the basis of consensus. I used to be told that the members of the committee did not want to vote on matters that had never before been voted on in the history of the committee. They did not want me to cause division. I have seen new people being pressurised in that way. They have to listen to the old hands who have been around for a long time saying that they want consensus rather than division and that they want to agree on any names that are going forward. I worry when I hear people saying they want to reach consensus because reaching consensus is sometimes the wrong thing to do. It is sometimes better to have a voice saying "I do not agree". At certain times, people should be asked to put their names to what they are supporting in a vote. Votes can be a good way of making sure people are clear in their own minds about the decisions they are making. I refer, for example, to requiring people to put their names to a vote on a particular recommendation. I have seen many decisions change when they were challenged in that way. The potential for conflict is there. I am not an expert in this area, but I am somewhat nervous as I listen to the debate about tying the Attorney General's hands behind his or her back after he or she has sat in on meetings and listened to what was said. If a member of the Cabinet who is not particularly happy with any of the three names put before the Cabinet decides to ask the Attorney General whether anybody else made an application, he or she will have to say that such information cannot be divulged on the basis that it would be a breach of the law to advise the Cabinet that names of good and substantial candidates were considered and voted down. It seems that the Attorney General will not be allowed to express that view at a Cabinet meeting. I am a little concerned about the language. If I am misinterpreting what the Minister is saying, I apologise. My remarks are based on the vibe I got from the answers the Minister gave to Senator McDowell.

Michael McDowell (Independent)
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I want to put it on the record that the Minister has informed the House that he believes unsuccessful candidates will be notified of that fact. If that is the case, it will have to be made very clear on Report Stage. We cannot treat this as something that the Minister hopes for, but the commission can decide not to do. Is it the case that those who will be shortlisted will be notified of the fact of their having been shortlisted? The commission will not be making the final decision, as it will be a matter for the Government. If a particular judge is told that the commission accepted that he or she was one of the top three, but he or she is not appointed to the Supreme Court, he or she will have to draw the inference that this was a decision made by the Government. As we live in a small world, he or she will know who is on the shortlist. If we notify people that they were on the shortlist but did not make the grade at Government level, that will have certain implications as well. I want to put it on the record that if the Minister blithely says he imagines that best practice will involve telling unsuccessful candidates that they were not successful in being shortlisted, consideration must be given to whether those who were shortlisted should be told that they were shortlisted, only for the fine members of the Cabinet to decide to go somewhere else in the last analysis.I would like to know exactly what the legislation is supposed to be achieving in that context.

The Minister indicated that I am being unduly adversarial in my approach. Let me remind him of a few basic facts. The Bill makes detailed provision in respect of how votes should be carried out, who has the casting vote and who is always in the majority. It states that a lawyer, be he or she a judge or a practitioner, can never be the person with the casting vote on any issue. I did not imagine this, I did not put it into the legislation. This was put in by those who drafted it. I do not have to tell the Minister that, besides himself, one of the great proponents of the legislation, his Cabinet colleague, the Minister for Transport, Tourism and Sport, Deputy Ross, has repeatedly indicated that the purpose of what is proposed is to end cronyism in the appointment of judges. In stating this, the Minister for Transport, Tourism and Sport has implicated the Judiciary, as well as successive Governments, in acts of cronyism.

I am not bringing some new proposal before the House as to how judges should be appointed. As far as I know, it is not the case that the existing arrangements require casting votes on the part of the Chief Justice. I have never come across that. The Minister asked a question that I am certainly glad to answer. In my experience as Attorney General and as a member of the Judicial Appointments Advisory Board, JAAB, there were no votes, just discussions. There were sometimes disagreements but they were amicably resolved one way or the other. Nonetheless, there was never a situation of raising one's hand for one person rather than another because the system did not require it. JAAB indicated whether a person was wholly unsuitable or whether he or she could be recommended to Government. If there was a serious group of people, even a minority, which thought that Mr. Kevin Humphreys was suitable, and the other members indicated that there was something iffy about him, his name would still go forward unless there was somebody stating that he was wholly unsuitable. It was left to the Government to decide. The Attorney General would have been at both meetings and would have been in a position to steer the Government on the issue. There was nothing wrong with that. It did not pollute the JAAB process at any point that the Attorney General was in a position to state that there was strong opposition to a candidate from some quarters but that the Attorney General felt he or she was a good person or a bad person, as the case may have been.

I do not accept the proposition that I am being unduly adversarial. I would hope that the commission, like JAAB, would operate by consensus. If then good people are seeking appointment to the High Court, it is much easier for a consensus to emerge and to say that here are ten good people and that it is now for the Government to decide. It is bound to be the case that if we say that we cannot send forward more than three candidates, people will ask precisely why candidate A is better than candidate D and will state that they believe strongly in candidate D and that they do not believe candidate A is better. There is going to be much more personal assessment by the members of this commission of the people they are putting on vis-à-vis the people they are not putting on. The comparative merits of two people on a short list will be of great importance. That is inevitable. It is not an adversarial thing. The entire process will require that if those in the room agree on six people who have substantial support on the commission to be appointed to the Supreme Court, they will have to, by some process, knock out three and put the other three on the short list.

The Minister says that I am conjuring up a situation whereby the Attorney General is all on his or her own in opposition to somebody. I am not doing so. I am saying that it could well be the case that the Attorney General could be one of five or six people on the commission who had a strong objection to one person or a strong preference for another and who id not agree with what was done. Let us remember that the system the Minister is putting place gives a majority of this commission the right to decide on each person. It is not a proportional representation election. One can have three votes. It will be a matter of candidate A, candidate B and candidate C, and the majority of the commission being entitled to state that candidate D will not be on the list. That process is done by a vote in the event of a disagreement. If there is equality on any occasion, the lay chairperson is given a further vote. He or she is given one vote to bring it to equality and a further vote to bring it over the line.

I am not conjuring up an adversarial scenario. Having 15 members on the commission and giving them the function of winnowing out all the suitable and unsuitable people to the point at which only three names will go to the Cabinet, a situation is bound to arise from time to time whereby the Attorney General will be in a minority. That is bound to happen unless the commission operates on the basis of complete consensus in respect of everything, which is not what is envisaged. If there were to be complete consensus on everything, there would be no need for a lay majority, for a casting vote for the lay chairperson or for every committee and sub-committee of the commission to be chaired by a layperson. That would not be required if it was all to operate by some kind of cosy consensus. It is not designed to do that. That is its qualifying characteristic.

Government Amendment No. 69 states that it will be a criminal offence for a person to contravene section 27(1). If the amendment is accepted, it will be a criminal offence for the Attorney General to disclose confidential information. The definition of "confidential information" in section 27(2) refers to "information that is expressed by the Commission to be confidential". A majority of the commission will decide what is confidential and the Minister has admitted here that he certainly envisages that the identity of unsuccessful applicants will remain confidential, even to the commission and to the particular individuals involved if they are informed of their lack of success by a letter issued to them. There is a series of things here which I find strange. An unsuccessful applicant will get a letter and will be informed that he or she has been unsuccessful in being short-listed, but the Attorney General, on pain of committing a criminal offence, will not be able to tell the Cabinet that such a letter issued in respect of any individual. I cannot square that as a reasonable approach to all of this.

I am not seeking special privileged status for the Attorney General; I am just asking that his or her constitutional status be recognised and that it be stated in section 27 that nothing will inhibit him or her from giving a free and frank account to the Cabinet of the process of selection, including information on who was successful and who was not. That would not allow the Attorney General to subvert the process in its entirety, but it would allow him or her to do what he or she is charged with doing by virtue of his or her constitutional position, which is to give proper legal advice to the Government on the suitability of candidates.

I am glad the Minister indicated that it is still the case that the Attorney General must, under Cabinet procedure, be consulted. I had wondered whether that had disappeared.