Wednesday, 21 November 2018
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
To clarify, amendments Nos. 72 to 77, inclusive, are related. Amendment No. 75 is a physical alternative to No. 74. Amendments Nos. 72 to 77, inclusive, are being discussed together and that has been agreed. Senator McDowell was in possession.
I welcome the Minister. I thank Senators Norris and McDowell for speaking on the Labour Party group of amendments and, in particular, Senator Norris for proposing the amendment. These amendments are somewhat self-explanatory and I will wait to hear the Minister's response. Essentially, they seek to adjust or tweak some of the provisions in section 33 of the Bill around eligibility and qualifications for office, specifically to deal with issues around District Court judges and promotion to the High Court, and whether the Supreme Court, the Court of Appeal and the High Court should be included in section 33(1)(b). Similarly, with regard to the appointment of legal academics to judicial office, they seek a certain tweaking of those provisions.
I propose to adjust these amendments somewhat for Report Stage so I may withdraw them from the House on Committee Stage today. I will also be bringing forward on Report Stage further amendments to section 33 relating to a separate issue. While I will speak on it further when we come to section 33 itself, the separate issue I want to deal with is around the eligibility of in-house counsel to judicial appointment, an issue that was raised with me but too late for me to get amendments in on Committee Stage. It is around the expression "practising barrister" and whether that is aligned with the understanding or definition of "practising barrister" in the Legal Services Regulation Act 2015. It is a serious issue and a particular issue in the context of gender balance and judicial appointments, given we in the Labour Party have put forward amendments later in the Bill on the need to ensure gender diversity or, more properly, gender balance in judicial appointments.
I am conscious, from research I and others have done, that many women gravitate towards in-house counsel roles where there are more protections in regard to maternity leave, greater entitlement to leave for childcare purposes and so on. Therefore, it is for traditional reasons and reasons around culture at the Bar and among self-employed persons. I can go into this in more detail when we come to discuss section 33, although it is perhaps not appropriate to speak about it on these amendments.
I will not speak at length on amendments Nos. 72 to 77, inclusive. They are self-explanatory and seek to adjust or make various tweaks to the arrangements currently set out in section 33. I will await the Minister's response.
I acknowledge what Senator Bacik has said. I would be interested in hearing from her on the matter in the discussion on the section or in the course of the amendments, whichever she deems most appropriate.
On the matter of amendment No. 72, which was moved last night in the absence of Senator Bacik and to which she made brief reference, the amendment seeks to delete part of the amendment to section 5 of the 1961 Act which is contained in section 33 of this Bill. I point out that the qualifications and eligibility framework laid down in the statute contain important safeguards to ensure that only appropriately-qualified persons compliant with the appropriate and relevant statutory provisions may be considered for appointment to the Bench and subsequently appointed.
The changes proposed under section 33 make two adjustments to what is the current and existing framework. First, it provides that a judge of the District Court with two years service can be eligible for appointment to the High Court. I emphasise "eligible for" because, listening to some of the debate last night, one would think it was mandatory. This is about eligibility and enabling.
Second, it provides that a legal academic of 12 years standing, with four years practice as a barrister or solicitor, will be eligible for appointment as a judge. Again, we are dealing here with enabling or eligibility factors, rather than the type of mandatory doomsday scenario to which we were feted last evening. While these are reasonably significant changes, I would not regard them as being particularly radical. Section 33 enables the commission to consider applications from persons in those categories and to make recommendations in respect of such persons as it deems appropriate and fit.
The amendment would remove from the Bill the new provision whereby a judge of the District Court who has served for not less than a period of two years will qualify for appointment as a judge of the High Court. I do not accept the amendment. I believe that to do so would be a regressive step and an unfortunate one on the basis that what we are doing is broadening the scope of eligibility rather than introducing any mandatory entitlement.
Section 33(1) amends the 1961 Act so as to address the anomalous situation whereby a judge of the District Court is precluded from being eligible for appointment to the High Court. Specifically, a new paragraph (d) to be inserted in section 5(2) of the 1961 Act will extend that eligibility for appointment to a judge of the District Court with a period of service of two years. As of now, to qualify for appointment to the High Court and, indeed, the Court of Appeal and the Supreme Court, practising barristers and solicitors of not less than 12 years standing may be eligible. Of course, Circuit Court judges of not less than two years standing are also eligible for appointment to the High Court. Practising solicitors and barristers must have practised for a continuous period of two years immediately prior to first-time appointment as a member of the Judiciary.Sitting District Court judges, however, no matter how long they have sat on the Bench, cannot even be considered as potential appointees to the High Court. Senator McDowell in many respects predicted the reasons for these amendments when he said he was not motivated by intellectual snobbery and that this was not a cause in defence of members of the Bar. We are merely adjusting what I and members of the Judiciary perceive to be an anomalous situation, that is, where sitting district justices, many of whom have long-standing service and expertise, cannot even be considered as potential appointees to the High Court.
I am reminded of a debate in the Oireachtas 20 years ago, about which I would hazard a guess Senator McDowell, then a Deputy, is on the record, if he was not then occasion engaged full time in the Four Courts. There was an active campaign by the Bar to ensure solicitors would not be eligible for membership of the High Court. That law changed many years ago and the prophets of doom were wrong. A number of former solicitors sit on the Bench of the High Court, and many of them are exemplary in the conduct of their work on the Bench.
Section 33 merely corrects an unfairness. It opens up eligibility arrangements for the appointment of district judges to the High Court. It is appropriate, even overdue, and I do not agree it should be undone by way of amendment.
If the Minister is trying to introduce an irrelevant and slightly offensive tone to this debate, he started off on the right foot. He informed the House that I was probably involved in the campaign to prevent solicitors from becoming judges of the High Court, or else that I was too busy in the Law Library to participate in the debate while I was a barrister. If he checks the record, however, he will find I supported the amendment to the law to make solicitors eligible to be members of the High Court. He will also find I was involved in the drafting of the legislation that made solicitors eligible to be members of the High Court, and that I was either Attorney General or Minister for Justice, Equality and Law Reform when the first solicitors were appointed members of the High Court. If he carefully checks the record, he will find I encouraged solicitors to become members of the High Court. Far be it from how he portrays or imagines it to be, it is the diametric opposite. I was always happy with the idea that solicitors would become members of the High Court.
Although the Minister's memory appears to be fading slightly in this respect, he may recall the only precondition that was set for solicitors to become members of the High Court was that they should have experience of the workings of that court. It might be a strange precondition to apply, but it would impossible for a barrister to practise for ten or 12 years yet never to have seen the inside of the High Court. He or she would be a very strange barrister.
In the case of the solicitors' profession, on the other hand, of which the Minister was then a member, it would be entirely possible, especially if operating in one of the larger firms in Dublin, to be an eminent solicitor yet never to have seen the inside of the High Court nor to have participated in any High Court litigation in one's life. I have been in the Four Courts in the company of solicitors who had never seen a jury sit in their lives. That is how closeted some solicitors are. I have seen solicitors who, while waiting for another case, attend a jury trial for the first time in their lives, even though they were ten or 20 years in practice.
The law was changed, I was there, I stood over it and I implemented it. I am proud of the people who were appointed on my watch and with my active encouragement to the High Court from the solicitors' profession. I am proud of them not merely because they were pioneers at the time, seeking appointment with the active encouragement of the Minister of the day, but also because they turned out to be exemplary members of the High Court and have served this country well. The implication of the Minister's barbed remarks that I was an opponent of solicitors becoming eligible to be a High Court judge is entirely incorrect. I played a significant role in making it possible and encouraging it to happen.
The Minister also said that based on my remarks yesterday he thought it was somehow mandatory for District Court judges to become High Court appointees. I said nothing of the kind and only wishful thinking could lead the Minister to think I somehow implied it would be mandatory for district judges to become High Court judges. I am capable of reading a section, and I know the distinction between eligibility and the fact that one might or might not be selected. I made it clear, and I reiterate, that I cannot imagine circumstances in which a District Court judge would seek appointment to the District Court Bench.
No, a lawyer. I cannot imagine that a lawyer would seek appointment to the District Court Bench and, within two years, say he or she is in the wrong court and should be in the High Court. A person so philosophically and professionally confused about where his or her forte in law lay would need a great deal of counselling.
If one applies to be a District Court judge, one is applying for a particular form of judicial office. It is an office in which one will exercise local and limited jurisdiction, largely of a summary kind although some complex cases in the family law sector, in particular, are heard and disposed of in the District Court nowadays. I do not accept for one minute, however, that the qualities that would make someone a good District Court judge would make him or her a good High Court judge. I am not saying one could not have those qualities, but if someone opts to be on the District Court, he or she is making an application to the Government for appointment which is based on the proposition that he or she is expressing a preference to be appointed as a judge of the District Court. As we know, a District Court judge is eligible to be promoted to be a Circuit Court judge, who in turn is eligible to be appointed to be a High Court judge.What this measure is supposed to do is provide for a leapfrog exercise from the District Court to the High Court and I cannot conceive in what circumstances that would be done. It is not a matter of snobbery or anything else; it is a matter of plain common sense. It is extremely unlikely and questionable whether it would be appropriate for such a person after two years in the District Court to say I have had enough of this I am going to apply to be appointed to the High Court. I cannot imagine a reasonable person pursuing that career path. However, I can well imagine a judge of the District Court saying he or she would like to be a member of the Circuit Court and serving some time as a member of that court, conducting trials on indictment, jury trials, and being successful in so doing, functioning on a different level from that of the District Court. Eventually he or she would be entitled to say he or she done several years on the Bench of the Circuit Court and has conducted complicated trials, and if there is to be an appointment to the High Court, particularly on the criminal side or whatever, his or her experience now makes him or her eligible and suitable for that position. That could very easily happen but I cannot see any circumstance in which a District Court judge would want to leapfrog directly from the District Court to the High Court because their years of experience in the District Court would not prepare them for practice in the High Court. They would be cut off from the kind of law which is practised in the High Court to a large extent and would be doing different duties as judges.
I should say also, and it is a prejudice of mine, that I do not believe in too much promotional movement of judges from one court to the other as a defined career path. I do not believe that the way to become Chief Justice is to start off as a District Court judge. That is not correct because it would seriously compromise the independence of the Judiciary if one was effectively to start in the District Court, be promoted to the Circuit Court, have the ambition of going to the High Court, the Court of Appeal and on to the Supreme Court. That is an unnatural progression and is not readily amenable to notions of judicial independence because people would accuse judges of looking over their shoulder on such a promotional career path in respect of the judgments they gave.
Will the Minister explain something that I cannot follow in the text of the Bill? A 'legal academic" suddenly appears in section 45A to be inserted by this amendment. It is defined in subsection (4) as:
a permanent member of the academic staff of an educational establishment who—(a) teaches one or more subjects in the field of law, or
(b) carries out, or supervises the carrying out, of research in one or more such subjects,whether or not in conjunction with the carrying on by him or her of administrative duties relevant to that teaching, research or supervision.
A person could, for instance, be teaching business law in a university as a member of permanent staff, or some other form of law, medical law, in the faculty of medicine or whatever, or else could be researching those topics. That is the definition of a legal academic, whether or not the person is also carrying on "administrative duties relevant to that teaching, research or supervision".
Subsection (5) states:
In the case of a person who—(a) is the head of a faculty immediately before the appointment referred to in subsection (1), the requirements of that subsection and subsection (2) shall be deemed to be satisfied if, within the period of 12 months before the person's becoming the head of that faculty, he or she was either a legal academic of not less than 12 years’ standing (2 of which years shall have been continuous) or the head of another faculty of not less than 4 years' standing (2 of which years shall have been continuous), or
(b) was the head of a faculty at a time other than immediately before the appointment referred to in subsection (1), any period served by him or her as the head of a faculty shall, for the purposes of that subsection and subsection (2), be deemed to be a period served by him or her as a legal academic.
The word "faculty" does not seem to be defined at all and I do not see where the phrase "head of faculty" is coming from or what exactly it means because, for instance, educational establishment is defined as a university to which the 1997 Act applies or the Honorable Society of King's Inns or the Law Society of Ireland. Are there faculties in the Law Society of Ireland and the King's Inns? I am not aware that there are. We are presumably talking about university faculties. I find it difficult to understand why a special provision is being made for somebody who used to be a lecturer or researcher but has gone on to greater things, to be the administrator of a faculty of other people who do that work but who does not do it him or herself. I have deep concerns about that. I do not know why precisely these special provisions are being made for the head of a faculty as distinct from a legal academic. Perhaps somebody would explain that to me. There are faculties in universities. In University College Dublin, UCD, where I am an adjunct professor, believe it or not, the law school is not a faculty. It is located in the faculty of arts. It has some other name now.
Humanities or something like that. Some other phrase is used now. The head of the law school is the dean but the dean is not the head of a faculty. In King's Inns, the dean is not the head of a faculty. I would have to check the rules. As far as I know in TCD, which is a major law school, it is a school.
There is no faculty involved at all. I am bit mystified as to why we are using these terms without definition and why we are making special provision for people who have done that. I can well imagine the head of the law school in Trinity going on if they have faculties in Trinity – I presume they do-----
There is a law school in TCD but I am not clear whether its head is called a dean, and the head of the law school in the college is not the head of the faculty as far as I am aware. Can I have an explanation for this elaborate provision for a job that does not exist in the Law Society of Ireland or in the King's Inns? One might be the head of the humanities faculty or whatever the old arts faculty in UCD is called but I do not know how that is relevant to this Bill. Likewise, I do not know what the position is regarding TCD. Can I have an explanation?
I will discuss it briefly and the Chair can advise me on the right time to move it. Amendment No. 74 relates to the requirement that a legal academic must have continuous practice of four years before being considered for appointment. While we all acknowledge it is important to ensure there is considerable legal experience involved, the requirement is too restrictive. Somebody might be qualified but he or she might not have practised for four continuous years. This raises a number of considerations for the future. Generally, we should be more open to considering the appointment of legal academics, in particular to some of the superior courts where issues might be of a more technical, abstract or academic nature. Experience in that realm could be of great benefit.
People with academic experience are considered for appointment in other jurisdictions and the evidence proves that it works well. Provided the person has qualified as a barrister or solicitor, that he or she qualifies in every other respect and that he or she is a fit and proper person with good experience and knowledge of the law to serve in such a position, it makes sense that he or she would be considered for appointment. I am also taking into account that the current provision might have implications for those who have left practice for a period such as female barristers who have taken a leave of absence at various points for personal reasons. That is the general approach in other jurisdictions and it makes sense. It could be taken into account as we move forward with this legislation. That is what amendment No. 74 seeks to do.
Following that brief excursion into the first national language, which carries supremacy when ruling on constitutional matters, I wish to comment on amendment No. 74. It states, "Subsection (1) shall only apply to a legal academic who has qualified as a barrister or solicitor..." and rules out the four consecutive years of practice. That does not go far enough. I do not see why they must have any experience as either barristers or solicitors. After all, these academics are teaching the barristers and solicitors so presumably they know more about it than the barristers and solicitors. Why not let them at it? There is no reason, other than the closed shop professional school nonsense one gets from both barristers and solicitors from time to time, that they should have to qualify as barristers or solicitors. I reiterate that they are teaching the barristers and solicitors. Is the teacher not as good as the pupil? Of course the teacher is. It is absolute nonsense.
I do not believe the Minister answered Senator McDowell's point regarding a high-flying academic. Why on earth would a high-flying academic want to go to the District Court and deal with people cycling on the pavement? It is an absurdity. I cannot envisage a situation where such an academic would demean himself or herself to seek appointment to the District Court.
Amendment No. 76 deals with section 33(4)(a) and (b) which states: "... (a) teaches one or more subjects in the field of law, or (b) carries out, or supervises the carrying out, of research in one or more such subjects, ...". One or more subjects means the person could teach one subject. That subject could be Roman law, which is not of great use in the courts of Ireland aside from an occasional casual reference. With regard to paragraph (b), "...carries out, or supervises the carrying out, of research in one or more such subjects, ...", supervising research is very different from carrying it out. The amendment differs by stating: "In page 24, to delete lines 15 to 17 and substitute the following: "(a) teaches one or more subjects in the field of law, and ...". The word "and" replaces the word "or". It has the two requirements, including "(b) carries out research, or supervises the carrying out of post-graduate research, ...". It requires a higher stage of academic development. It is a change from any kind of research to postgraduate research.
I support Senator Bacik's amendment, which proposes to delete "continuous" regarding the four years required and insert "cumulative". However, I would be much happier to get rid of the whole thing. What is wrong with teachers? Surely to God a professor of law is good enough to be a judge. A professor of law at a reputable academic institution is teaching people and is the instructor of the judges. Surely the instructors are as good as the "instructees".
I thank the Minister and my colleagues for elaborating on the amendments and raising so many points. I am grateful for the opportunity to have this debate and, as I said, I hope to adjust some of these amendments between now and Report Stage. Listening to the debate helped to clarify my mind on this. I accept the Minister's point about sitting District Court judges, to address amendment No. 72 first. His response was almost entirely directed to that amendment. The calibre of District Court judges has improved enormously, and those judges are currently being promoted to the Circuit Court and from there to the High Court. However, I am also conscious of the motivation for our amendment which is, as Senator McDowell said, that there is a concern about undue emphasis on promotional opportunities within the Judiciary and the compromising effect that can have on judicial independence. That is not to say it has that effect-----
I accept that, which is why I must re-examine the amendment. Perhaps it is too much to remove that provision, as we propose to do in amendment No. 72, but two years may be simply too short. It might be preferable to reformulate the amendment to state four years or the like. I will consider it. Senator McDowell has pointed to the leapfrog issue. Somebody could be a serving District Court judge for five years. I practised in the District Court for years as a junior barrister when I was in practice and some of the most difficult, tricky cases are tried in the District Court and they get little publicity.There are some quite technical issues, making it quite difficult to practice in the District Court in many ways. I would never underestimate that. If somebody-----
There is an excellent Trinity woman in the form of Chief Justice Susan Denham, I am glad to say.
It is worth reflecting on whether it is sufficient to refer to a five-year period spent as a District Court judge. One might have been President of the District Court, for example, and such an individual certainly should be eligible to go to the High Court. Therefore, I do not believe the leapfrog point is necessarily a good one in all cases. My original purpose in the amendment, to delete all the wording, was too much. We should leave open the possibility, as at present, and tweak it a little further. I am glad to have had the opportunity to debate amendment No. 72.
Amendment No. 73 concerns the eligibility of legal academics. As a legal academic, I have a certain interest in it. What we were really trying to do was tweak the provisions. In amendments Nos. 73 and 75 to 77, inclusive, our intention is to adjust somewhat the requirements on academics' eligibility for appointment to judicial office. I will withdraw the amendments and reconsider them for Report Stage.
Once we have considered them a little more, perhaps.
I wonder about eligibility for the appointment of academics to the District Court and Circuit Court. It seems to be a more appropriate route to the High Court, Court of Appeal and Supreme Court. I am not, however, wedded to the idea and that is why I am not going to push amendment No. 73 at this stage. I will withdraw it and I may resubmit it for Report Stage.
On amendment No. 75, on substituting "cumulative" for "continuous", the point is important but it could be made in respect of other passages in section 33 as well as line 10 on page 24. I am conscious that "continuous" also appears at line 3 and in subsection (5), at lines 26 and 28. I ask the Minister to consider whether "cumulative" would be preferable to "continuous" in all these cases. I press the point in amendment No. 75 but I am conscious I did not submit amendments in respect of all the references to "continuous" throughout section 33. Therefore, I will come back to this on Report Stage to remedy it if the Minister is not willing to accept the point.
With regard to the substantive point in amendment No. 75, we are suggesting that somebody who has practised as a legal academic for a cumulative period of four years should be eligible. It should not necessarily be a "continuous" period. I am conscious that there may be all sorts of reasons a period of practice might be interrupted — for example, for sabbatical leave spent teaching at an institution abroad, which is very routine and which can be very prestigious and greatly benefit academic research and teaching. It would also benefit the Judiciary. There may be an interruption for reasons associated with childcare and maternity leave, for example. Therefore, the reference to a "continuous" period might be problematic. It would be preferable where the word appears throughout the section to refer instead to "cumulative". That is the substantive point in amendment No. 75.
On amendment No. 76, we are just tightening up the requirement, as Senator Norris pointed out. The amendment seeks the insertion of, "teaches one or more subjects in the field of law", and, "carries out research, or supervises the carrying out of post-graduate research". We are pointing out that it should be postgraduate research. I do not necessarily believe this is the best formulation but we are just trying to put in a reference to postgraduate research.
Amendment No. 77 proposes to change the definition of "university" to which the phrase "educational establishment" applies. Again, I will consider this for Report Stage.
Let me refer to Senators' point on the head of faculty. Senator Ó Domhnaill addresses this in amendment No. 74. As others have said, the language in the legislation is somewhat problematic. In Trinity, for example, we have a law school and a faculty of arts, humanities and social sciences. The head of law is the head of law and not a dean of a faculty or anything like that. I am conscious that the proposed subsection (7) states any reference to the head of faculty shall be construed as a reference to the dean, etc. That deals with the point. I am not quite sure why section 33 refers so much to "head of faculty" in any case. That is the more substantive point. The reference seems quite specific. There are so few law schools in Ireland and so few heads of faculty that it almost sounds somewhat personalised. That is why there is a slight concern.
No, because the proposed subsection (7) implies that "head of faculty", where it appears in the section, shall be construed as a reference to the head of the law school in Trinity's case. In UCD, it is also the head of a school. It is just a global term used to cover all heads of schools. I am just not quite sure why there are so many references in the section. It seems a little clumsy to me. Overall the section could be tightened up and improved.
The Minister kindly said he might accept my points on in-house counsel at this point. I am happy to wait and address them when addressing section 33. The points are also relevant to section 35. Could I make these points because, as I said, I want to reserve the opportunity to submit amendments on Report Stage?
In the interest of time, I will. These are important points but they were raised with me subsequent to the Bill commencing Committee Stage. Therefore, I could not table amendments on the matter for Committee Stage.
The issue raised appears to involve a somewhat technical oversight, but with potentially serious consequences. It concerns the relationship between this Bill and the Legal Services Regulation Act 2015, which precedes this Bill. The serious consequence is that there may be discrimination against practising barristers currently employed as in-house lawyers because the legislation may treat them differently and put them at something of a disadvantage by comparison with solicitors doing exactly the same work in-house.
Let me explain why the issue arises. The expression "practising barrister" in the legislation that governs eligibility for judicial appointment — principally the Courts and Court Officers Act 1961, referred to in section 33, and also the Legal Services Regulation Act — is not defined and is not aligned with the new definition of "practising barrister" contained in the 2015 Act. As a result — the point has been made to me and I am still working through it — barristers employed as lawyers in an in-house capacity may not be regarded as being in practice for the purpose of eligibility for judicial appointment while solicitors working side by side with them may be eligible to apply provided they retain their certificates of practice.
I have canvassed a number of in-house lawyers on this. It is certainly a matter of real concern to many. It is a serious issue, particularly for many women who in order to achieve a work–life balance or for another reason left the Bar, in particular, because it is more precarious and involves more self-employment, to practice law in-house or in the State sector. The view that they should be eligible to apply for a judicial appointment is very much welcomed. That is one reform that is very welcome in the Bill.
Let me examine the technical point. Section 2 of the Legal Services Regulation Act has a broad definition of "practising barrister". I believe that section has been commenced, with the role of practising barrister now established under the Legal Services Regulation Act. This means barristers practising in-house will be legally recognised as practising their profession. That should deal with the point but it seems the section 2 definition is applicable only for the purposes of the 2015 Act.
I seek clarification on whether that definition can apply within this Bill given that it seems to be the Courts (Supplemental Provisions) Act 1961, as amended, that sets out the eligibility criteria for judicial appointment. The 1961 Act does not define "practising barrister" as an expression. In a 1981 case, Walshe v. Murphy, Irish Reports. Vol. 275, the Supreme Court held that a practising barrister is a person who has been called to the Bar and offers himself or herself at hazard to take work. It does not include a barrister employed in-house. That is clearly superseded by the 2015 Act. Unless, however, this Bill specifically adopts the new definition of "practising barrister"-----
I am told the section 2 definition from the 2015 Act has a broad definition of "practising barrister", to include employed barristers engaged in the provision of legal services. I understand the Act has now been commenced, but only very recently because the Legal Services Regulatory Authority has had to establish a roll of practising barristers. It is only as a result of this that the section 2 definition applies.
I understand barristers practising in-house will become legally recognised as practising their profession. Again, I apologise for not having all the detail. I can certainly check whether the provision has been commenced. The definition is the preferable one. The question is whether it applies specifically within sections 33 and 35 of this Bill.If we do not adopt the 2015 Act definition, it is arguable that only practising barristers within the meaning of the 1961 Act, as interpreted in the Walshe v. Murphy case would apply. The effect being that barristers working in-house would have less eligibility or would appear to be ineligible compared with solicitors doing exactly the same job in the same place. Clearly, that is not the intention of this Bill.
It may be dealt with elsewhere in the Bill but it has certainly been suggested to me that it is an oversight that could easily be fixed to ensure that the term "practising barrister" is simply defined consistently across the legislation. The issue raised with me by an individual certainly shows the difficulty with this Bill and this body of legislation, and the need to ensure consistency across them. Will the issue fix itself once the authority is fully operational and the role of practising barrister is up and running? Possibly but, in the interests of certainty, it would be preferable to have a clear consistency and a clear adoption of the 2015 Act definition.
In the interests of saving time, this point is also relevant when we will come to debate section 35. In particular, subsection (5), which is very much related to section 33, states: "the Commission shall have regard [...] to the nature and extent of the practice of the person concerned in so far as it relates to his or her personal conduct of proceedings in the Supreme Court, the Court of Appeal and the High Court whether as an advocate or as a solicitor instructing counsel in such proceedings or both". This section 35(5) provision appears firmly based on a traditional division of the professions. Again, the question is how does it affect in-house lawyers, whether originally barristers or solicitors, or either continuing with practising certificates as solicitors or continuing on the role of practising barristers. Again, we need to future-proof sections 33 and 35 to ensure that both provisions take account of in-house lawyers and to ensure there is not any disparity of treatment as between those in-house lawyers who are trained as barristers or who are trained as solicitors.
That is the specific issue that has been raised with me. I am conscious it has been a matter of concern for quite a number of people and that it may have an impact more particularly upon women. However, clearly it is a more general issue about in-house lawyers, both barristers and solicitors, the need to ensure that the legislation applies consistently to both and that there is consistency across this Bill, the 2015 Act and the earlier 1961 Act. I am grateful to the Minister for dealing with this point now. I will not have to repeat it when we come to deal with section 35 but, clearly, it is relevant to both sections.
I want to refer to the District Court on foot of some comments that were made. I concur with Senator Bacik regarding the work that is done in the District Court. I practised as a solicitor for many years in the District Court and far from being demeaning to high-flying academics, some of the most complex and difficult family law matters, of which I have had experience, are dealt with at District Court level. Many legal academics would like to practise in the District Court. The fact that complex family law matters are dealt with in the District Court is another issue and perhaps they could be dealt with in dedicated family law courts-----
-----but that is a completely separate issue. Currently, District Court practise can be very complex, and very valuable work is being done there. Therefore, I do not believe any high-flying legal academics would be demeaning themselves by applying to be a judge in the District Court. Some complex and very difficult issues such as guardianship, domestic violence and access are dealt with in the District Court. I just wanted to put that on the record.
I am conscious when I speak on this Bill that I am among some particularly eminent legal minds. I am genuinely appreciative and in listening mode when it comes to what those Members have said about my amendment.
I do not know about that but go raibh maith agat. I am listening and it is worthwhile hearing those Senators' views on it. I am not at a great divergence from Senator Norris's thinking on it. I heard what he said about amendment No. 74 and having four years experience in practice. I agree with everything he said about the wherewithal and ability of legal academics, and in this amendment I was seeking to bolster that with a degree of practical experience. That is all it seeks to do. It does not seek to take from anyone's ability.
I hope I did not come across as being facetious because I appreciate Senator Norris's intervention, as Gaeilge, in the mother tongue. I had a cheeky thought, which is something I am sure the Minister would dread, that if Senators Norris and McDowell had made all their contributions in both English and Irish at what point would we be at in dealing with the Bill.
I agree regarding academics and the important role they play. It is hard to get an absolute fix in that regard. I am sure Senator Norris would consider what he said was an oversight and that he would want to withdraw his comments regarding the work of the District Court being demeaning. Its work is extremely important. I am sure the President of the District Court would be very upset if he does not withdraw those comments.
In the first instance, I acknowledge and welcome what Senator McDowell said and his placing on the record his acknowledgement of the importance of the eligibility of solicitors for consideration to the High Court. I accept, without equivocation, what he said. Mind you, I was minded to commence my contribution today in view of the Senator's comments last night when he stated at length, and has continued to state today, his very strong view of the unsuitability of a judge of the District Court for eligibility for elevation to the High Court, having regard to the fact that most members of the District Court Bench have formerly practised as solicitors. I felt that Senator McDowell was being consistent but he was not. I am pleased now that he has placed on record his work of almost 20 years ago and I acknowledge it.
Senator McDowell spoke at length about section 33(5), the purpose of which is to consider the fact that a head of faculty may not at the time of appointment meet what would be the precise definition of a legal academic. Subsection (5) ensures that this person who may, in effect, be the most suitable person for appointment is not ruled out of consideration.
I note the Senator did not mention subsection (7). Senator Bacik was right in her remarks on that subsection, which seems to deal with Senator McDowell's query regarding the apparent different arrangements in different colleges, with having a faculty, being a department or a group of teachers or a group of academics in one college, a faculty being a department in another, and a reference to a head of faculty, director or dean, which was mentioned. These have been included in subsection (7), which I believe will meet the Senators' concern regarding eligibility. I thank Senator Bacik. I am very interested in the point she makes. The Senator indicated that she is prepared to look further at the wording she has put forward in her amendments, with a view to addressing further some issues on Report Stage. I would also be very happy in seeing if we could reach a meeting of minds. The Senator made a number of important points and, while this probably will not lead me to accept her amendments, having regard to what she stated, she probably would not expect me to do so. She made a number of points that I would certainly be prepared to consider further.
On amendment No. 73 and the proposed new section 45A to be inserted into the 1961 Act, this provides for an initial basis for qualification for appointment as a judge, opening up eligibility for appointment to a legal academic of not less than 12 years' standing who, immediately before such appointment, has been employed as a legal academic for a continuous period of at least two years. In addition, under the terms of the new section 48A, such a legal academic must be a barrister or solicitor at the time of being appointed as a judge and must have practised as a barrister or solicitor for a continuous period of not less than four years. Similar requirements with some modification to take account of the role apply in the case of a person who is deemed to be a head of faculty. Amendment No. 73 removes reference to both the Circuit Court and the District Court. The proposed new section 45A(1) would confine the scope of qualification by a legal academic for appointment only to the three superior courts. I am not sure if Senator Bacik meant that but it is what we have in front of us. I do not see an immediate reason, provided the academic reaches the level of competence or experience that the section contains, that a legal academic might not wish to be considered for appointment to either of the lower courts. That is why I disagree with Senator McDowell. He makes very strident expressions as to the disposition of legal academia. Perhaps he is right but what are doing here is merely broadening the eligibility. I am not sure Senator McDowell can speak for all academia in the manner in which he does.
There may well be legal academics who are especially suited to be appointed from time to time, particularly in the context of their experience or level or expertise. In any event, I would be prepared to come back to this issue with Senator Bacik.
I have an open mind on amendment No. 75. The proposed new section 45A, which deals with academics, relates to section 33(3) of the Bill, which provides for qualification in these cases only of a legal academic who at the time of appointment is a barrister or solicitor practising for a period of four years. Senator Bacik wishes to change the reference in the case of a barrister in practice from "continuous" to "cumulative". I think the Senator makes an important point. Let us see if we can reach agreement on Report Stage. It is an interesting point and I do not have an immediate disagreement with it. I do acknowledge what Senator Bacik has said to the effect that it may require further consideration. I would be happy to have people engage on that issue.
Senator Bacik has stated that amendment No. 76 may require tweaking on Report Stage. As it stands, the existing subsection provides that a legal academic means a permanent member of staff of an educational establishment, which is defined elsewhere, who teaches one or more subjects in the field of law or who carries out or supervises the carrying out of research in one or more such subjects. Senator Bacik wishes to replace "or" with "and" and add the term "postgraduate" so the reference is now to "postgraduate research". Having listened to the Senator, my feeling is that the overall effect here is probably to make it more difficult for a legal academic to get over the line. I am not really sure if that is what is intended by Senator Bacik but I would imagine not.
I am concerned that the tightening of the text might result in matters being somewhat more unduly restrictive and I am not sure that is the point the Senator makes. If that is the result, I would be concerned. If it is not the result, my inclination is to accept it but I would not wish there to be an unintended consequence of restriction.
In respect of amendment No. 77, Senator Bacik wishes to delete the reference to King's Inns and the Law Society from the meaning of "educational establishment", which would restrict the meaning to a university in the ordinary sense, if I may use the word "ordinary" in the presence of Senator Norris. In any event, I am not really certain that this is any advance at all. I have doubts about the necessity or desirability of limiting or restricting on the basis that I do not see a reason that membership of the academic staff of the King's Inns or the Law Society would not amount to a qualification of a person.
Provided, of course, that other conditions of application were met. I acknowledge what appears to be agreement on the part of Senator Norris. I am not inclined to accept the proposed change in this instance.
If I may return briefly to Senator Ó Donnghaile's amendment No. 74, it would have the effect of removing two important elements from the requirements for eligibility of legal academics. It would remove the requirement to be a solicitor or barrister at the time of appointment, and it would remove the requirement of a practical experience of the courts over a number of years, whether that be continuous or cumulative. The Bill stipulates a period of four years. I am not inclined to accept the amendment on the basis that I do acknowledge that the Bill has evolved somewhat from the general scheme published two years ago. In the general scheme, head 26(3) proposed to enable a legal academic of not less than 12 years' standing who qualified as a barrister or solicitor to be considered for appointment regardless of whether that person had practised at all as a solicitor or a barrister. In the proposed new section 45A we are opening up eligibility to a legal academic of not less than 12 years' standing, provided that such a legal academic is a barrister or solicitor upon their being appointed and has practised as a barrister or solicitor for a continuous period of not less than four years.Similar requirements for the role apply in the case of a person who might be a head or dean of faculty. The reason for the departure from what was in the general scheme to what we have now was a feeling that it might have been more desirable to ensure legal academics appointed to the Bench had an appropriate level of experience of the practice and procedure of the court. Senator McDowell referred to this early in the debate in the context of the importance of having that practical experience and being knowledgeable of the procedure of the court. The practising qualifier is an important additional element with which I am not disposed to dispense. I do not see a wholly convincing argument for the amendment but I appreciate the intention behind it. I invite Senators McDowell and Bacik, both of whom have considerable practical experience, to go as far as to agree with me on the point I make in that regard.
We can return to that.
On the amendments, I welcome the widening of eligibility for appointments to judicial office to include legal academics, which is an important and positive reform. In putting amendments forward, Senator Ó Donnghaile and I are trying to ensure the section works, that it is not too cumbersome and so on. Specific criteria for eligibility generally are also welcome, and I note what Senator McDowell said about the appointment of solicitors and so forth.
On amendment No. 72, I am grateful to the Minister for indicating he is willing to re-examine this, as am I. I indicated I will withdraw that amendment and resubmit it on Report Stage to see whether a better approach can be taken. It is too hasty to delete the provision as I had suggested in the amendment and, therefore, I will withdraw it.
On amendment No. 73, I take Senator Clifford-Lee's point, which is similar to my point about District Court practice. She is quite right about family court practice. I did a good deal of childcare work in the District Courts, in what used to be known as the health board or HSE courts, where complex legal issues are raised routinely. I also did much criminal work in the District Courts, where significant decisions are made daily about locking people up and detaining them in custody for some time. On reflection, I was wrong to limit academic appointments and to rule out the Circuit and District Courts. I do not intend, therefore, to move the amendment.
On amendment No. 75, I am again grateful to the Minister for stating his open mind to the question of continuous versus cumulative practice. This issue is more relevant to practising solicitors as it is easier to take time out without losing practice if one is employed by a solicitors' firm. Where one is working on a self-employed basis as a barrister, it is clear that a continuous period may be necessary to build up a practice. It depends on the nature of the practice, however, and someone could be abroad on sabbatical for a year and still pick up practice on his or her return. I stand by my point, therefore, that continuous practice might be too cumbersome and cumulative might be preferable, but I will not move that amendment on the basis that the Minister indicated he will consider the matter. I will also have to reconsider it because we should have tabled amendments, which refer to all the places in the text of section 33 where the word "continuous" is used rather than only one.
I do not intend to move amendment No. 76, which would make the requirement unduly restrictive. Nonetheless, it might be worth tabling a different amendment on Report Stage with a reference to postgraduate research, which might be significant. I will not move it in its current format because the intention is not to make it unduly restrictive for legal academics to seek judicial appointment.
I also do not intend to move amendment No. 77. I was wrong to remove a reference to King's Inns and the Law Society, and I am grateful to the Minister for making that point.
It is clear this legislation must be read alongside the 2015 Act and the changes to legal education envisaged in that. We must be mindful of that, and by "we", I mean those of us in opposition who are tabling amendments as well as those engaged in formulating the legislation. I have indicated what I will do with the amendments but I am conscious we have not come to each of them and that I will have to deal with them formally. I reserve my right on Report Stage to return to them, and I await the Minister's response to the point about in-house lawyers, which is a separate point to these amendments but which arises out of sections 33 and 35.
I assume she has no intention of reintroducing it on Report Stage. It would be complete nonsense to exclude the Honorable Society of King's Inns and the Law Society, which are the two premier educational establishments for the legal profession. I was going to say I doubt the Senator read the amendment before she submitted it but I am sure she had. It is possible she did not realise the repercussions of it. It would be a nonsense and I am glad she will not move it.
Subsection (4) of the new section 45A, which will be inserted in the 1961 Act by section 33(4), on the definition of "legal academic", states:
Without prejudice to subsection (5), in this section ‘legal academic’ means a permanent member of the academic staff of an educational establishment who—
(a) teaches one or more subjects in the field of law, or
(b) carries out, or supervises the carrying out, of research in one or more such subjects,
whether or not in conjunction with the carrying on by him or her of administrative duties relevant to that teaching, research or supervision.
The lines (a) and (b) are separated by the word "or", which implies there is a natural division. It also implies one could carry out or supervise the carrying-out of research in one or more subjects without teaching. I have never come across this, and I taught in the University of Dublin, Trinity College, for 30 years. I never came across a situation where a permanent member of the academic staff simply carried out or supervised research. I put it to the Minister that the criteria are clearly separated, which suggests an academic could do nothing other than supervise research, but that is simply not the practical situation. I ask him, therefore, to reconsider that provision.
It also seems the final two lines are redundant because they state, "whether or not in conjunction with the carrying on by him or her of administrative duties relevant to that teaching, research or supervision". Who raised this? Why should it be there at all? Nobody is talking about it, and I do not see why the carrying-on of administrative duties should be referred to at all. It can just be left out. If it states "whether or not", that means we will ignore it and have nothing to do with this administrative stuff. Why then is it inserted at all? I do not see the reason for it.
As he is not disposed to withdrawing that phrase, I must express my disagreement with it because the position of district judge is an important constitutional office in our judicial system. The District Courts and the Circuit Courts may be courts of local and limited jurisdiction, but nobody demeans oneself by becoming a judge in any of those courts. When the Senator used the phrase "high-flying academic", he had probably had professors in mind who are unlikely to say at some stage of their career that they would give up being a professor and turn instead to being a judge in the District Court. It sounds unlikely but, as the Minister emphasised, it is purely a matter of eligibility. If someone was eligible to be a High Court judge, it seems remarkable he or she would be ineligible to be a District Court judge, but I accept the Minister's point.I am not quite clear why someone would want to do that.
In early 2002, when I occupied the position of Attorney General, and John O’Donoghue was Minister for Justice, Equality and Law Reform, legislation was passed to provide for solicitors to become judges of the High Court. At that time, the legislature specifically provided in the Act, in section 8, that "in the case of an appointment to the office of ordinary judge of the Supreme Court or of ordinary judge of the High Court, has an appropriate knowledge of the decisions, and an appropriate knowledge and appropriate experience of the practice and procedure, of the Supreme Court and the High Court". That is still the law of the land and will stand to be repealed by this statute because the JAAB provisions will be swept away. That provision was designed to ensure that while someone could be a practising barrister or solicitor, it might be the case that they might never have darkened the door of either the High Court or Supreme Court at all. In 2002, the Legislature said that if a person wished to be appointed to either of those courts, that the JAAB would have to be of the opinion that the person being recommended had an appropriate knowledge of the decisions and an appropriate experience of the practice and procedure of the Supreme Court and High Court.
We have not reached the idea of an in-house solicitor or barrister, to which Senator Bacik referred. There is no doubt that it is complicated but it would be possible for someone to be the in-house solicitor of a building society and to have never seen the Four Courts in his or her life. Under the current JAAB legislation, the board was precluded from recommending people, be they barristers or solicitors, for appointment to the High Court or the Supreme Court, as then was – the Court of Criminal Appeal did not exist then – unless they had what was provided for in law. They had to have “an appropriate knowledge of the decisions," and, therefore, they had to be learned in the case law of those courts and, second, they had to have "an appropriate knowledge and appropriate experience of the practice and procedure, of the Supreme Court and the High Court". Senators Boyhan and Craughwell and I seek to maintain this requirement in section 35, so that it would not be possible to come into those courts as a neophyte who knows little or nothing about their practice, procedure or case law. This is very important.
Senator Norris, in making a different point, laid the ground for the point that I make now. He said that a professor of law teaches law students, ergo, he should be able to do what they do. I did not study law in university but I did study King's Inns subjects in UCD which was then possible. For my arts degree in UCD, I took economics, politics, Roman law and jurisprudence. I did so as the alternative was statistics, and my mind would go blank at the sight of a square root sign. I was never happy at the sight of square root signs, cubes, sigmas and all the rest that one had to master to become proficient in the science of statistics. I, therefore, decided to take the other option, which was what remained of legal and political science that later became group 9A in the arts faculty. I was lectured in Roman law and jurisprudence, happily by the late John Maurice Kelly, who was a wonderful lecturer. At the time, another person lectured in Roman law. As Senator Norris noted, someone might teach Roman law and qualify for appointment. It does not follow that teaching Roman law as a historical subject would be an eligibility criterion for being a member of the High Court or Supreme Court.
I understand that the Minister cannot be prescriptive and say that someone must lecture in the basic core subjects, but the mere fact that someone happens to be a professor or a lecturer in a law faculty, or a commerce faculty – in UCD this became the School of Business but I do not know its name now – and lecture in some aspect of law in a university does not mean that a person is likely to be a good candidate for a promotion to the Judiciary, and currently, the JAAB cannot recommend this, for the reasons outlined in section 8 of the 2002 Act.
This brings me to what Senator Bacik said about in-house lawyers. There are many in-house lawyers, in semi-State bodies and the like, for whom I have the greatest of time, who almost act as attorneys general for the semi-State bodies. I can see it of those people. However, I can imagine the case where someone is described as an in-house lawyer who might be a lawyer to a large supermarket chain. In the case of those type of people, one must ask oneself whether a person employed in private enterprise and having no day-to-day involvement in the practice of law in the courts sense, qualifies to be a judge in the Court of Appeal or the Supreme Court.I am deeply worried about the Minister repealing the 1996 Act, insofar as it relates to the Judicial Appointments Advisory Board, and the amendments made to it in 2002 which said that one could be an in-house barrister or solicitor but must demonstrate practical experience of the superior courts before being appointed to them. That will be swept away. The requirement for practical experience will be got rid of. That is why the requirement that one has practised as a barrister or solicitor before becoming a legal academic or in conjunction with being a legal academic is important. That used to often be the case, although Senator Bacik may correct me as to whether it is as fashionable now to do a bit of both; I know that some of our most eminent judges practised and lectured at the same time.
Senator Bacik herself is an example of that. I have no problem with that. I think that is great. I am quite happy with the idea that if somebody had practised for six years as a solicitor and then sought a post at Trinity College, that after accumulating the relevant years of experience as a legal academic there, that person would be eligible for appointment to the Judiciary. I have a problem with us sweeping away, as one of the criteria for recommendation to the Government, the requirement which now exists and has existed since 2002 that a person should have practical experience of the operation of the courts. In other words, somebody who has literally never seen the inside of a court could be eligible to be made a judge. That is a bad idea.
-----with these little mots justes. I do not know what point he is making. Our Judiciary is excellent. It is not the case that somebody who has just seen the inside of a court is as good as a candidate from the Judiciary.
I ask the Minister to indicate why the amendments made in the Act of 2002 to the Judicial Appointments Advisory Board provisions in the 1995 Act are to be done away with and the requirement for appropriate experience of the practice and procedure of the Supreme Court and the High Court to now be dispensed with as a criterion for eligibility. Why would we do that at this stage, with this having been part of our law for 16 years? This anticipates our amendment to section 35. Listening to the discussion here about legal academics and such, it is slightly worrying that insufficient emphasis has been put on the fact that one should know what one is doing, how courts function and that one should understand what makes a good judge and a bad judge. One of the best ways is to watch judges in practice. It is very hard for somebody who has never seen a judge adjudicate in any case to have a clear understanding of what makes a good judge or a bad judge. That applies to the lay majority aspect of the Bill.
Senator Bacik has a number of amendments. She is keeping her powder dry with them, which is an option she has and so be it. I am not satisfied that the Bill in its present form is sensible. I do not believe that two years of experience in the District Court should render one eligible to go to the High Court. It is not a good idea.
I attract Senator McDowell's attention to section 35(3) which seems to me to meet most of the grievances he has put forward relating to the change from the 1996 Act and the 2002 Act to the current Bill. The Senator will be aware, with the quotation from the Courts and Court Officers Act 2002, that the text has been evolving to cater for the fact that solicitors bring a different type or range of experience to the courts. I remind the Senator of the 1999 working group on qualifications which made specific reference to appropriate knowledge and experience. That, in many respects, forms the change of wording. In section 35(3), with regard to the appointment for office in the Supreme Court, Court of Appeal or High Court, it is clear that the commission will be unable to recommend a name of a person unless, in the opinion of that commission, the person has appropriate knowledge of the practice and procedure, which is the point that Senator McDowell has made, with appropriate knowledge of the decisions and knowledge and experience of the practice and procedure of the court, whether the Court of Appeal, the High Court or the Supreme Court. I feel that meets the point, albeit in a different text. Nevertheless, it adequately covers the point that Senator McDowell has made.
I agree with Senator Bacik that the widening of eligibility for appointments should not be cumbersome. It is a point that I referred to in a reply earlier. It is something that I can work on and that I can usefully draw from the points that Senator Bacik made. Lest my silence be misinterpreted, I agree fully with Senator Clifford-Lee on the points she makes regarding the importance of the District Court.I am pleased that Senator McDowell added considerably to the points he made earlier in respect of that cohort. I regret what Senator Norris has said and I certainly do not agree with the point he raised.
If I did not make it clear early on to Senator Bacik, I want to acknowledge the importance of her point, which I believe is most correct, on the section 2 definition of "practising barrister" in the 2015 Act. That, of course, is detached from the Courts Acts insofar as the matter of eligibility is concerned. The point she makes regarding the in-house lawyer is reasonable and is one I will be happy to look at in the context of the earlier debate.
I move amendment No. 73:
In page 23, lines 32 and 33, to delete "Supreme Court, the Court of Appeal, the High Court, the Circuit Court, or the District Court" and substitute "Supreme Court, Court of Appeal or High Court".
I move amendment No. 74:
In page 23, to delete line 37, and in page 24, to delete lines 1 to 11 and substitute the following:
“(3) Subsection (1) shall only apply to a legal academic who has qualified as a barrister or solicitor and subsequent subsections of this section, in so far as they relate to a person who is referred to in them as a ‘head of a faculty’ or ‘head of another faculty’, shall not be construed as enabling such a person to be the subject of such an appointment unless the person has qualified as a barrister or solicitor.”.
Ivana Bacik, Victor Boyhan, Lorraine Clifford Lee, Rose Conway Walsh, Gerard Craughwell, Mark Daly, Aidan Davitt, Maire Devine, Robbie Gallagher, Paul Gavan, Kevin Humphreys, Billy Lawless, Terry Leyden, Pádraig MacLochlainn, Michael McDowell, Gerald Nash, David Norris, Ned O'Sullivan, Niall Ó Donnghaile, Aodhán Ó Ríordáin, Fintan Warfield, Diarmuid Wilson.
Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Paul Coghlan, Frank Feighan, Maura Hopkins, Anthony Lawlor, Tim Lombard, Gabrielle McFadden, Kieran O'Donnell, John O'Mahony, James Reilly, Neale Richmond.
I move amendment No. 76:
In page 24, to delete lines 15 to 17 and substitute the following:
“(a) teaches one or more subjects in the field of law, and
(b) carries out research, or supervises the carrying out of post-graduate research, in one or more such subjects,”.
When the Chair asked that, he did not look in my direction. In any event, the point I am making is that this is an important amendment. Even though, in one respect it is only the word "and" or "or", it has significance. In a second respect, the postgraduate research is also an important issue. Everybody carries out non-postgraduate research. As Senator Norris said, this idea that-----
I am going to speak. The Senator should resume his seat. I want order. This is Senator Bacik's amendment. It has been discussed. It is her right to have it withdrawn and she indicated that is what she wanted to do. I understood that was agreed and I am reluctant to proceed along these lines, with respect, because it is her amendment and her entitlement, and she withdrew it.
We withdrew it on the basis that the Minister and I had an exchange on it and I am grateful to the Minister for indicating a willingness to consider the issue and an inclination to accept at least the spirit of it. I just want to check the wording of it. I fully intend resubmitting a similar amendment on Report Stage. I said all this earlier.
The Minister should be aware that somebody cannot just put an amendment down and withdraw it and have the House assume that it is about to decide something of importance and then say it is not deciding it because I am withdrawing it. Once an amendment is tabled it cannot just be withdrawn unilaterally. The Member has to get the agreement of the House.
I move amendment No. 77:
In page 24, to delete lines 34 to 41 and substitute the following:
“(6) In this section ‘educational establishment’ means a university to which the Universities Act 1997 applies, and in computing, for the purposes of this section, any period that a person must have served as a legal academic, successive employment of the person by 2 or more of any of the foregoing educational establishments shall suffice.”.
With some trepidation I am applying for leave to withdraw it again on the basis of the earlier debate that we have had and the very strong reasons offered as to why it should not be accepted and on reflection I think I was wrong to put it in. I have said that and I am seeking to withdraw this amendment.
There was no amendment down to remove the first few lines of this section which is about the eligibility of a District Court judge after two years' service to be "qualified for appointment as a judge of the High Court". I am against that proposition for the reasons I have already explained and I am not going to repeat them now. I do not want to delay the House unnecessarily. I am against that provision.
I note Senator Bacik has rightly been persuaded that her amendment would have been unduly restrictive to subsection (6) but in subsection (6) we are dealing with a university to which the Universities Act 1997 applies. Can the Minister tell the House one way or the other whether the technological universities which, as I understand it, are about to come into existence will be covered? Are they universities to which the 1997 Act applies or are they under a separate statute?
I will check that point on the basis that the Senator says he understands this is something that may happen at some stage in the future. At that stage we will consider it. My understanding is that these colleges are not covered under the Universities Act. They may well be at some stage in the future. As of now my understanding is otherwise.
It has been passed. The Dublin Institute of Technology and the institutes of technology at Blanchardstown and Tallaght are rapidly moving towards their new campus in Grangegorman. Technological universities and the institutes of technology have delivered some fine legal courses down through the years and have some fine legal academics working in them. We need to amend this legislation before it goes forward.
It had occurred to me before Senator McDowell raised this issue that the technological universities might be covered. Certainly there are excellent law faculties and departments in very many of them, so that is an important point. It relates to a point I made earlier in respect of the in-house lawyers and the relationship between this Bill and the other legislation such as the Legal Services Regulation Act 2015 and the Courts and Court Officers (Amendment) Act 2007. It is important that the legislation is future-proofed to take account of changes such as the change in university status for the institutes of technology and the other institutions. We just need to check that to ensure that this legislation is properly mindful of other changes that are happening in parallel.
We can certainly do it in the context of further discussion on the amendments as put forward and withdrawn by Senator Bacik but with a view to coming back on Report Stage. My understanding is that the Bill has been enacted.
It was signed into law by the President on 19 March of this year. Unless there is a deeming provision that the provisions of the Universities Act also apply to the technological universities it would be necessary to make provision for it in this Act.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paul Coghlan, Rose Conway Walsh, Martin Conway, Maire Devine, Frank Feighan, Paul Gavan, Maura Hopkins, Billy Lawless, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Kieran O'Donnell, John O'Mahony, Niall Ó Donnghaile, James Reilly, Neale Richmond, Fintan Warfield.
Ivana Bacik, Victor Boyhan, Lorraine Clifford Lee, Gerard Craughwell, Mark Daly, Paul Daly, Aidan Davitt, Robbie Gallagher, Kevin Humphreys, Terry Leyden, Michael McDowell, Gerald Nash, David Norris, Ned O'Sullivan, Aodhán Ó Ríordáin, Diarmuid Wilson.
This is the first section in Chapter 2 of Part 6 of the Bill. We are now getting to a crucial portion of this proposed legislation. Chapter 2 is concerned with eligibility and preconditions for appointment to the relevant judicial offices. What I have a major problem with is that section 34(1) states: "Nothing in this Chapter shall be construed as being applicable to a judicial office to which section 44applies."This is, in other words, part of a legislative scheme which includes section 44. Section 44, as the Bill currently stands, is an entirely separate chapter of the legislation on appointments to the position of Chief Justice, President of the Court of Appeal and President of the High Court. The exclusion in section 34(1) is to say that the divisions of this chapter will not be applicable to appointments as Chief Justice, President of the Court of Appeal and President of the High Court but will be applicable to all other judicial appointments. That is where, among other places, for the purposes of this discussion, I part company with the legislation.
This chapter provides that: "In addition to the requirement ofsections 7and 36and subsection (2)and (where it applies) subsection (3), the Commission shall not recommend the name of a person to the Minister unless it is satisfied that the requirements of the relevant provisions are complied with in relation to the person." It then states: "In the taking of steps that result in a recommendation of a person's name to the Minister, the Commission shall ensure that the requirements in the published statement are complied with."
We will come back to that in a moment when we can deal with that in more detail on section 35. Section 35(3) states:
In the case of an appointment to the office of—
(a) ordinary judge of the Supreme Court,
(b) ordinary judge of the Court of Appeal, or
(c) ordinary judge of the High Court,
the Commission shall not recommend the name of a person to the Minister unless, in the opinion of the Commission, the person has—
(i) an appropriate knowledge of the decisions, and
(ii) an appropriate knowledge and appropriate experience of the practice and procedure,
of the Supreme Court, the Court of Appeal and the High Court.
The problem with all of this is that if ordinary judges of the High Court and the Court of Appeal, those two categories of people, are to be appointed or considered for a recommendation by the commission, the commission is going to have to ask itself about the candidates appropriate knowledge of the decision and appropriate experience of the practice and procedure of the Supreme Court, the Court of Appeal and the High Court.
To take an example, let us go back to what we were discussing earlier, namely, a District Court judge. A District Court judge, on the Minister's version of section 33, is to be eligible. We are now going to have a situation where the commission is going to have to carry out an inquiry as to whether the District Court judge has appropriate experience of the practice and procedure of the Supreme Court, the Court of Appeal and the High Court. That is an extraordinary thing to do.
It is even more extraordinary that an existing Circuit Court or High Court judge would have to go through that test, that is an existing High Court judge be effectively required to prove his or her experience of the Supreme Court in order to be appointed to the Supreme Court. Once one is a judge of the superior courts, namely, the High Court, the Court of Appeal or the Supreme Court, one should be eligible,ipso facto, to be appointed and one is, in statute, eligible to any more senior position in those three courts. Asking existing members of those courts to apply to the commission for its approval and their shortlisting for a position is entirely unjustifiable. I will come back to that at a later stage and will not elaborate now because I do not want to be repetitive.
I utterly disagree with the procedure laid down in section 44 and therefore I cannot agree with the provisions of section 34-----
That is my point, a Leas-Chathaoirligh, I was just going to point that out. I therefore cannot agree with what is provided in section 34(1), which refers to that. I am opposed completely to the procedure set out in section 44. When this Bill started off, there was to be a fast-track for those positions which did not involve a visit to the judicial appointments commission. It was amended I believe in Dáil Éireann so as to abolish the fast-track and require everybody who wanted to be appointed to the Supreme Court or whatever, to make an application to the judicial appointments commission, and to be either on or off a shortlist as the case may be. I am utterly opposed to that in principle. It is wrong. Sitting judges in the superior courts should never have to go before the judicial appointments commission to see whether they are suitable for appointment to the Court of Appeal or to the Supreme Court.
I will elaborate later on this but my strong view is that when the Government comes to decide what person it should or should not appoint to the Supreme Court, it operates on the basis of its own criteria as to what kind of Supreme Court it wants to establish - what kind of philosophical balance, balance of legal outlook, what kind of balance in terms of liberalism and conservatism, being pro-European less pro-European or whatever. These are issues which only the Government is entitled to decide upon and which the Constitution gives to the Government as its own function to make its own mind up on.
Asking judges in the High Court to submit their names to the judicial appointments commission with a view to determining as to whether they should be on a shortlist to be considered by the Government is in my view not merely invidious, but it strikes at the heart of what the Government's prerogative, function and duty is, namely, to make up its own mind on this issue. It can of course take advice from whoever it likes. It can set up an institution which can tender advice. In this case we are making it an offence for anybody to canvass for his or her appointment to the Supreme Court and we are also, as I have pointed out on another occasion, making it an offence for the Attorney General to tell the Government who the unsuccessful applicants for promotion, who were not shortlisted, actually were.
A combination of all these factors makes this an unconstitutional provision. I also believe that it seriously infringes the independence of the Judiciary that they should undergo an evaluation process the same as somebody who is not a judge just because they want to be seriously considered by the Government for promotion from the Court of Appeal to an ordinary member of the Supreme Court. That is not right and is wrong in principle.
I would be reassured if the Minister would tell me that he has been reconsidering the provision that the Attorney General should commit a criminal offence if he or she discloses to the Government who the unsuccessful applicants for promotion were. If the Minister was to even tell me that he was reconsidering the stance he has taken on that in the course of this legislation I would feel some sense of reassurance. In the absence of that I cannot agree to the section 44 procedure existing at all.
Chapter 2 of Part 6 states: "In this Chapter 'legal academic' means a legal academic within the meaning of section 45A" and so on. We have quite a lengthy section in section 33 dealing with the definition of a legal academic and so on. I am not sure why it is necessary to rehearse it at this point because it seems to me a legal academic has already been satisfactorily defined in the legislation. One assumes the provisions and terms of the Bill would apply in all cases to legal academic as so defined in the Bill. I am wondering why this subsection is included.
I would like to deal with it now if I could. There has been some suggestion that we are deliberately filibustering this Bill. Our job is to scrutinise the Bill and put it through its paces. I am a layman. That is all I am. I am not a legal expert but at this stage I cannot for the life of me see why we are still talking about this Bill and why it has not been withdrawn altogether. It is seriously flawed. We are talking about setting up a commission that we do not-----
When we are talking about learned judges having to go through some sort of a test in order to find themselves short-listed, I cannot, for the life of me, understand or believe any judge would subject himself or herself to that sort of treatment. If this Bill goes through and if it were to be enacted in the morning, members of the Judiciary or Bar would be out of their minds to consider going forward for a position. Why would they want to do that? Why would they want to have people with no legal knowledge assessing their legal knowledge? Why would they do that? For the life of me, I cannot understand it and it needs to be put on the record at every section.
Yes. All the points Senator McDowell raised are valid but they are issues that are more particular to the later sections rather than section 34. For ease of debate, it might be desirable that we proceed in accordance with the accepted practice of going through the Bill on a line-by-line basis. The points raised by Senator McDowell, although they are all valid, are more appropriate to a later discussion, with particular reference to an amendment Senator McDowell has submitted.
Dealing with Chapter 2 of Part 6, what we have here in section 34 is a technical amendment cross-referencing what is being inserted into section 33 by the Seanad. It is merely an appropriate, desirable and, dare I say, necessary drafting provision. I do not have anything further to say on the section but I acknowledge the importance of what Senator McDowell has said. He stated he is parting company with the Bill. I have been here for 42 hours. I did not see him in company with the Bill at any stage but under Chapter 2 he now indicates he is parting company with the Bill. I invite him to wait until we have an opportunity to discuss the substance of his amendments. I think I might be in a position to engage in interesting discourse on some of the points that Senator McDowell will make. I do not think they will be made today.
I will not be provoked into a response to Senator Craughwell. I do not think I could respond to him and remain within the rules of the Standing Orders of the House.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paul Coghlan, Rose Conway Walsh, Martin Conway, Maire Devine, Frank Feighan, Paul Gavan, Maura Hopkins, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Gabrielle McFadden, Kieran O'Donnell, John O'Mahony, Niall Ó Donnghaile, James Reilly, Neale Richmond, Fintan Warfield.
I move amendment No. 78:
In page 25, to delete lines 25 to 34 and substitute the following:"(3) In the case of an appointment to the office of ordinary member of the High Court, the Commission shall not recommend the name of a person to the Minister unless in the opinion of the Commission the person has—(a) an appropriate knowledge of the decisions, and
(b) an appropriate knowledge and appropriate experience of the practice and procedure, of the High Court.".
The amendment provides for the-----
The purpose of the amendment is to underline our opposition to the idea that sitting members of the superior courts should be under any obligation to submit to legal experience and qualification evaluation by the commission at all. We are opposed to the idea that sitting judges should be asked to submit their names to the commission for appointment to the Court of Appeal and the Supreme Court. This may appear to some people to be a matter of less importance than I feel it is. The reason I say this is that at present, when the judges of the High Court, Court of Appeal and ordinary members of the Supreme Court carry out their duties, they are required to be impartial and hard-working in upholding their constitutional declaration and they are required to discharge the functions of a High Court, Court of Appeal or Supreme Court judge as the case may be, which involves the evaluation of cases purely as matters of law and not by reference to other criteria. To uphold the Constitution and the laws in their decisions impartially requires them to function clearly independently from public opinion going one way or the other on issues. It is about standing up for the rights of an individual citizen at law and under the Constitution, however popular or unpopular the position of that individual citizen may be.
Under the JAAB procedure at present, no member of the High Court, the Court of Appeal or the Supreme Court is required to, enabled to or in any sense eligible to submit an application to that body for its determination as to his or her suitability. A judge of the High Court cannot apply to be evaluated or declared suitable by the board for promotion to the Supreme Court. There are very good reasons for this. It is not the business of the current members of the board to start ferreting around among the existing High Court Judiciary and saying so-and-so is suitable and so-and-so is not suitable to be on the Court of Appeal. It is a matter for the Government to make this decision, and it is a matter for the Government to take the advice of the Attorney General and, usually, the advice of the Minister for Justice and Equality and make up its mind as to who among the existing Judiciary in the superior courts should be promoted to the Court of Appeal or the Supreme Court.
Currently, of course, the Attorney General or the Minister for Justice and Equality might well confer with the president of either of those courts if it were for a position as an ordinary member of either of those courts for his or her view as to whether there was anybody whom he or she thought would be particularly useful or appropriate to be included in a court to supply a vacancy in that court. The Government does not ask all members of the Judiciary to engage in a beauty parade before an institution that is independent of them for evaluation or shortlisting.
I am interested to know whether any common law jurisdiction requires existing members of its court of appeal to be vetted by a lay commission as to whether they should be made members of the supreme court of that jurisdiction. I do not claim to be an expert but I would be surprised if it were the case that the members of the court of appeal in London would have to submit to a full-scale evaluation by a majority group of lay people to make a recommendation as to whether they should be appointed to the English supreme court. I very much doubt this is the case. Even if the English were so minded to do it, they are not living in the world of a written constitution. The written Constitution we have states such an appointment is a matter for the Government.
I indicated earlier the outline of my view on this matter but in this context I have to reiterate it because we are now getting to the point where it is directly an issue in the amendments, section 35 and succeeding sections. The decision as to whether a High Court judge or a Court of Appeal judge is appointed to the Supreme Court is a matter exclusively for determination by the Government. The Government is free to take advice, soundings or whatever it likes in any quarter on this matter by whatever means it chooses but it is not constitutionally competent for the Oireachtas to tell it that it must operate in a state of legislatively imposed ignorance as to who wants to be appointed and who is available to be appointed to the Supreme Court, and certainly not in a context where the Attorney General of the day, who sits at the table when the Government is making its deliberations and traditionally has always been available to express his or her views as to the desirability of one nominee rather than another, should be committing a criminal offence if he or she discloses to the Government at a meeting to consider the matter that one particular person has shown an interest and has applied once or on a number of occasions to the commission but has not been shortlisted.The desire to keep the Government in ignorance as to who are the unsuccessful would-be appointees - by unsuccessful I mean the people who have failed to make the shortlist to be sent forward by the judicial appointments commission - is, in my submission, absolutely indefensible. There is no possible reason a Government in a situation where eight members of the High Court and two members of the Court of Appeal have expressed a wish to be appointed to a vacancy in the Supreme Court, should be told it cannot find out who of those ten people had expressed an interest in the appointment and may only be informed, on pain of the commission of a criminal offence, of the identity of the three people the commission has shortlisted. That proposition, and the desire to have that situation in place, runs counter to the function of the Government under the Constitution.
As I said earlier, if the Minister was to tell me he had been listening to the debate in this House - I know he is listening, I am not suggesting he is not, and he has very little choice in the matter-----
-----and has reconsidered the notion of making it a criminal offence for the Attorney General to inform the Cabinet as to who the applicants - the non-shortlisted applicants - were and is now open to amending the statute to allow for such information to be given to the Cabinet by the Attorney General, who ex officiois to be a member of this commission, at least part of my worries would be addressed here. The Minister should signal now, one way or the other, whether I am wasting my time here, not that it will deter me from continuing to make the point, I hasten to add-----
I would like know whether I am wasting my time and playing handball against a ministerial and governmental haystack in respect of the obligation this Bill proposes to put on all existing members of the superior courts to effectively engage in a competitive process to be shortlisted to be among the three names to be sent forward for consideration by the Cabinet. If I was told the Minister is now reconsidering that position I would be greatly relieved and feel we were making some progress in this debate. However, if I am told that is not the intention of the Government and that it will not yield on that issue, then I am equally obdurately opposed to the passage of this legislation and equally convinced that it is constitutionally infirm.
Section 35(1) states: "In addition to the requirement of sections 7and 36and subsection (2)[of section 35] and (where it applies ) subsection (3), the Commission shall not recommend the name of a person to the Minister unless it is satisfied that the requirements of the relevant provisions are complied with in relation to that person."The relevant provisions are set out in subsection (6) of the section.
Section (7) is referenced in subsection (1) and, as have already debated it, I will not go into it great length. Section (7) states, "A decision to recommend" and a fortioria decision to include somebody on a shortlist of three "shall be based on merit". It further states: "Subject to subsection (1), where the function, under this Act, of selecting and recommending persons for appointment to a judicial office falls to be performed, regard shall be had to ... the objective that the membership of the judiciary should comprise equal numbers of men and women." That is the first proposal, that there should be numerical equality between men and women as far as possible. Second, the section also states "the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole". Third, it states. "the objective that, consistent with the written statement most recently provided under section 53(7) to the Procedures Committee concerning the needs of the users of the courts in that regard, the membership of the judiciary should include persons with a proficiency in the Irish language".
This shortlisting process has statutory criteria which are blended in a strange way with the idea of merit. When we read section 7(1) and 7(2) it is not clear whether it is based purely on these being the three best people full stop, or that these are the three best people having regard to the need for the numerical equality of men and women in the Supreme Court. It makes one wonder. Supposing it were the case that the judicial appointments commission was confronted with a Supreme Court which had of nine members, seven male and two female members, in comprising its shortlist is it to attempt to ensure that the position is secured by a woman? If it is to do that, how is it to do it? Is it to ensure that the majority of the shortlist of three should be women or that all three of them should be women and leave the Government with a choice of the top three women, bearing in mind the existing imbalance in the Supreme Court?
These are the kinds of matters the commission will be driven to considering in its procedures, whereas what happens at Government is something totally different. What happens at Government is a consideration as to whether Mr. Justice Michael McDowell is a person who is a liberal or a conservative on social issues. That is an issue curiously which the commission is not allowed to take into account. Those are not the criteria that it is allowed to take into account. It is strange that the Government is obliged to take into account criteria in respect of which the commission is supposed to compose a short list for the Government that the commission is excluded, by the terms of this Act, from considering.
That emphasises the fundamental error of applying the terms of this statute to promotional appointments within the Judiciary. If the Government of the day wants to make the Supreme Court more liberal or more conservative, as it may well wish to do for perfectly good reasons, or, as I said earlier, more pro-European or less pro-European or more generous on the subject of personal compensation or less generous on that subject, and to make decisions along those lines, not merely it is perfectly entitled to do so, it is duty bound to do so, if it considers that is in the national interest. Yet the body that composes the shortlist for consideration by the Government is not entitled to look to those very questions. It is supposed to come up with a shortlist by reference to different criteria. That is what I find so incongruous about this legislation, that a group of outsiders are being asked to ask to make a shortlist decision by reference to criteria that the Government is not merely not concerned with but that it has a much bigger priority to make its own decision unencumbered by, say, for instance, the gender balance on any particular occasion.It may be far more important for the Government to select Mr. Justice David Norris for appointment to the Supreme Court.
-----diversity, or lack of diversity, or where he stands in the spectrum of social diversity in Ireland. Those things may not be of interest to them and yet those are the criteria which we are saying must be the basis of him being, or not being, on the shortlist.
I asked the Minister to inform me whether it is a central pillar of Government policy that existing members of the High Court must apply to the judicial appointments commission to be considered by the Cabinet for promotion to the Supreme Court, and whether that is a cornerstone of this legislation on which the Minister and Government will not budge.
I asked the Minister to indicate again whether he is open to reconsidering whether the Attorney General should be in a position to inform the Cabinet of those ready and willing to be appointed even though they have not been shortlisted - in other words, the people who have been applicants, have displayed an interest in appointment to a particular office and who have not been shortlisted for consideration by the Government. On those two points the constitutionality of this legislation depends. If the Government goes down the road of forcing existing judges to submit themselves to an evaluation by a group of people other than a government, one is not merely on the thinnest of ice but one is up to one's ears in constitutional water. Likewise, if one maintains the proposition that the Government cannot know who among the existing Judiciary is ready and willing to serve but has not been shortlisted, then one is, equally, up to one's ears in constitutional water. We are not allowed know the inner workings of the Cabinet and we are not allowed to know the inner workings of individual Ministers' minds on this issue. Unless there is some willingness to engage on those two issues, then this legislation is fundamentally flawed from a constitutional perspective.
The amendment states that the Minister shall request that the judicial appointments commission furnish a report "of the Government". I want to change the word "of" to "to" so that the amendment reads "to the Government."
Senator McDowell is right insofar as he suggests that we are now dealing with the heart of the Bill. I am not, a Chathaoirligh, going to go back over ground that has already been covered, with particular reference to the role or, indeed, the disposition of the Attorney General at any given point.
I have carefully listened to this debate in its entirety. I am not indicating that I am going to unravel any aspects of the Bill that have already been concluded on Committee Stage. Rather, I would now like to deal with the amendments before us which are amendments Nos. 78, 79, 90 and 91, all of which are important.
In the first instance, Senator McDowell suggested that this legislation is unique insofar as it deals with a form of assessment of candidates. He used the word "vetting".
-----is not appropriate. I understand that serving judges are assessed in other jurisdictions for promotion. I have already mentioned at an earlier Stage the situation in the neighbouring island, both in Wales and in Scotland. I would be happy to address the point by way of sending a note to Senator McDowell with a particular reference to the point that he makes, not about suggesting names for appointment but suggesting names for what we can describe as elevation or promotion from one rank of the Bench to another. I reject the term "vetting" which, in the circumstances, I do not believe to be appropriate.
Senator McDowell is right when he says that currently the Judicial Appointments Advisory Board does not vet the suitability of candidates for the High Court, Court of Appeal or, indeed, the Supreme Court.
This is precisely because the Courts and Court Officers Acts do not allow for such vetting, or even assessment.
To answer Senator McDowell question, yes, this is one of the fundamental pillars of this Bill. This is one of the changes in that the commission will assess the suitability of serving judges for such appointment. This is in response to the public consultation that was undertaken prior to this Bill having even been drafted.
Certainly, I am enlightened as to the direction of Senator McDowell in terms of his opposition to the Bill when he repeatedly used the word "outsiders". He said that outsiders are assessing, that outsiders are involved and that outsiders are a part of the process.
This is telling in the matter of the fundamentals of the commission, with particular reference to its status as having a non-legal majority and a non-legal chair, but that is not to describe the commission as comprising outsiders. Again, I was very careful in the context of the Bill, both in this House and the other House, to reassure people who felt that there was an imbalance here that there would be the active involvement, in the membership of the commission, of the Presidents of the Courts, all of whom I expect to be members of the commission because of their importance, expertise and experience. I invite Senator McDowell, in particular, to accept that point because I believe that they have a very important role to play in bringing a level of expertise and a high degree of experience and being in a position to strongly influence the names that ultimately go forward to Government for nomination to the President for appointment.Senator McDowell's amendment No. 78, as he freely admitted, would significantly narrow the scope of the section to relate only to:
(a) an appropriate knowledge of the decisions, and
(b) an appropriate knowledge and appropriate experience of the practice and procedure, of the High Court.
This would again serve to reflect the Senator's intentions with regard to amendment No. 90, which is an important amendment.
The scope of the section does not relate to appointments to the position of Chief Justice, President of the Court of Appeal or President of the High Court. I acknowledge that the Senator's amendment observes that clear distinction which is important.
Amendment No. 90 would introduce a senior judicial appointments committee to deal with not just those three positions of leadership, the Chief Justice, the President of the Court of Appeal and the President of the High Court, but all appointments to the Court of Appeal and the Supreme Court. I assume, therefore, that the Senator makes the section relevant only to those appointments that will remain within the ambit of the commission under this amendment.
As I indicated previously, I am giving further consideration to the amendment on the establishment of a senior judicial appointments commission. I am not sure if we can dispose of it in its entirety now, but I would be happy to continue to engage with Senators on the issue. On the conclusion of Committee Stage, I would be happy to reflect further.
Amendment No. 79 again narrows considerably reference to provisions under the section. It would require that the commission would accord with the Senator's intentions regarding the proposed committee under section 90. I am minded to acknowledge the importance of the senior appointments committee or group for the three appointments we mentioned. However, I am not sure about extending that further across the entire range of appointments the Senator wishes to encompass. This would reduce the import of the Bill in a way that is not reflective of Government policy.
I need to preserve the Government's policy in this regard, which is to construct a senior judicial appointments advisory committee but only for the top three positions as mentioned - Chief Justice, President of the Court of Appeal and President of the High Court. The Bill originally provided for that, but a Dáil committee did not favour this provision during its deliberations and it was replaced by an amendment, which, to all intents and purposes, moves the work required to recommend persons for appointment to these posts to the commission itself. I am still not satisfied with that approach. An amendment to that effect which I moved on Report Stage in the Dáil was defeated. However, I am minded to revisit the concept of a senior committee for precisely the reasons the Senator has outlined.
I still have a number of issues with the amendment. There appears to be no lay involvement from the new commission in this arrangement. I accept that a TLAC representative is provided for. Under the Senator's view of the commission, there would be no lay chair at that point. The question, therefore, of a lay chair being part of the new committee would not arise under this scheme. No lay involvement whatever from the commission is somewhat challenging and problematic.
The senior judicial appointments advisory committee contained in the Government Bill as published, which did not find favour with the Dáil, was to comprise the Chief Justice, the lay chair of the commission and the Attorney General. Perhaps the Senator might like to comment on that composition of a high-level senior appointments group. I acknowledge the success of such a group in the context of recent appointments to senior positions. I invite the Senator to explore possibilities of the Seanad further examining a high-level group with a view to reaching agreement, but acknowledging my disposition not to depart from what all Senators know - whatever about agreeing with - is Government policy.
While we can take the composition of the committee in the first instance, amendment No. 90 broadens considerably the posts to which the committee would make recommendations. I accept the importance and the differentiation of the three top judicial posts - Chief Justice, President of the Court of Appeal and President of the High Court - as distinct from ordinary members of the High Court or other judges, albeit that they are senior in office.
The Senator wishes to broaden the scope of these recommendations to cover all appointments to the Court of Appeal and Supreme Court.Having regard to the importance of these positions, they would be relatively few as a proportion of total appointments, but they are important. On Second Stage I referred to the reduction to just three names in the number of recommendations the Minister receives and to the fact that the legislation will cover the matter of the elevation or movement of a serving judge to a higher court. These are important issues which we must not lose sight of and which might not necessarily be catered for fully in the Senator's amendment, if I was disposed to accept it. I am not indicating that I will accept it but that there are aspects of these amendments which I am minded to subject to further exploration. That is why I am pleased to have the opportunity to listen to the points the Senator has made.
Under his arrangement, much of the original Bill will be lost, as it was the intention of the Government that ordinary judicial appointments to the two most senior courts would be for the commission to recommend. That would not survive the Senator's amendment. Not all appointments to the Court of Appeal or to the Supreme Court are serving judges. Some have been appointed straight from practice and I am sure that will continue, for good reason. Ultimately, I am not convinced that we should scuttle the reforming aspects of this Bill by leaving important appointments to the Court of Appeal and the Supreme Court and the elevation of serving judges outside the remit of the new commission. I am prepared to give the matter further consideration and to take further advice on it. I would be happy to hear the views of other Senators on this.
Subsection (7) of the Senator's amendment provides that not just all members of the superior courts may be informed of a relevant vacancy but that this extends to other persons as well. Other provisions provide for a maximum of three recommendations but not in any order of preference, the stipulation being that the Government shall first consider for appointment what will be described as recommended persons. I will continue to listen to the Senators on that. I will come back on Report Stage with considered amendments that will seek to address the concerns about senior level judicial appointments. At the same time, however, I cannot have a situation where the import of the Bill is, in effect, emasculated.
Okay. We will deal with the other three amendments. Is it agreed that amendment No. 91 will be dealt with separately from amendments Nos. 78, 79 and 90? Agreed. It should not make any difference to the overall situation.
Yes, it does not make any difference. Amendment No. 91 is better dealt with along with amendments Nos. 86 and 87, both of which refer to gender balance in appointments. That appears to be the more appropriate grouping.
I will discuss amendment No. 91 when we reach amendments Nos. 86 and 87.
On amendment No. 90, the Minister has indicated a willingness to move on this given that there was provision for a similar senior level judicial appointments committee in the original version of the Bill. That is welcome. If Senator McDowell's amendment or some variation of it was accepted, our amendment No. 91 does not arise as it simply becomes a different type of procedure. I support Senator McDowell's amendment. Amendment No. 91 deals with a separate issue and can be discussed with amendments Nos. 86 and 87.
I support amendment No. 78. The objective is to narrow the focus and scope of the Bill at this point and, in the case of an appointment of an ordinary member of the High Court, to ensure the person has an appropriate knowledge of the decisions and "an appropriate knowledge and appropriate experience of the practice and procedure, of the High Court". Curiously, the Bill refers to an appropriate knowledge and so forth as I just said, but it refers to the Supreme Court first. It refers to the Supreme Court, the Court of Appeal and the High Court. The High Court, where this person will be officiating, is put last, almost as an addendum. Senator McDowell's refocusing of attention on the practice and experience of the High Court is appropriate.
I also support him regarding Attorney General being prohibited by law, under the sword of Damocles of committing a criminal offence, from informing the Government of the long list. That seems to be quite extraordinary. It would deprive the Government of critical information. The Government will be deprived of critical information about this appointment and will surrender its rights to a body where the majority of the members may not have any great knowledge or expertise in this area at all. I strongly support Senator McDowell on this.
There is another matter on which I support him. The Minister referred to seeking expressions of interest on the part of eligible persons who wish to be considered for appointment to that office. How do they know that they wish to be considered for this office? How can the commission tell from whom expressions of interest should be sought?Subsection (7) of Senator McDowell's proposed new section states:
The Committee shall, for the purposes of making a report under subsection (2)—
(a) inform all members of the Superior Courts of the vacancy and invite any such member to express an interest in being appointed to the judicial office mentioned in subsection (2),
(b) publish any circular or advertisement as it considers appropriate inviting any other person eligible for appointment to the judicial office mentioned in subsection (2) to notify the Committee expressing an interest in such an appointment.
That is the way to do it. First, all the members of the superior courts are informed. As an addendum, I used the word "demean". It was slightly mischievous but when one is talking about superior courts, one is talking about superiority, and if one is going down, one is demeaning oneself. It seems that if one is seeking to attract the interest of people, one should first inform the members of the superior courts. They are the individuals who are critically and principally involved. Second, one should "publish any circular or advertisement as it considers appropriate". That is the way to attract people, rather than using some vague means of contacting individuals who, as far as I can understand it, have a wish that has not yet been expressed.
The Minister referred to the reforming aspects of the Bill. He picked up quickly on Senator McDowell's word, "outsiders", and chose to put his own slant on it. The Senator had a different slant so language is clearly important.
If there is a vacancy and ten or 15 people apply, they have to be assessed to progress through the selection process. We have no idea how they will be assessed or who will assess them. Three recommendations are to be brought before the Cabinet, which is to make the appointment. The Cabinet does not have to accept any one of the three. If the Attorney General's hands are tied, as was the case in respect of section 27, he or she will have no input whatsoever into the appointment. If we untie the Attorney General's hands and the Cabinet says it is not happy with any of the three applicants and asks the Attorney General for an opinion and, on receiving it, makes an appointment, what in God's name is transparent about any of the process? The public will never know who applied. They will never know how the applicants were assessed and short-listed, that the three on the short-list were rejected by the Cabinet, or the reason for that. We will end up with the system we currently use to appoint judges. I cannot see anything reforming in this. The more we go through this Bill, the more I despair over it. Why are we pursuing it at all? It is deeply flawed. My colleague Senator McDowell, who is an expert in the area, says he believes it is unconstitutional. I said when discussing this with the Minister some weeks ago that if no one tests this in the Supreme Court if and when it is passed, I am mindful to test it myself. I do not believe the President will sign it anyway.
I appreciate that but I want to make one point very clear to the Cathaoirleach. Committee Stage is where this has to be thrashed out. When we get to Report Stage, it will be a speech for and a speech against, followed by a speech for and a speech against, and that will be it.
Whatever about my disposition as far as other amendments are concerned, I assure the Senator that I am keen to engage with him on these amendments. Given his experience and expertise, I am keen to listen on these amendments because they are of great importance in the context of the Bill. Whatever about anything I might have said on previous occasions about the length of the Bill or the length of the debate, I am keen to engage here. I am not in any way anxious to curtail or stymie debate on these amendments. It is not that I would be allowed to do so in any event.
I appreciate that the Minister has indicated a degree of openness of mind on this issue. It is clearly understandable in the context that he ended up leaving the Dáil with a provision in this respect with which he did not enter the Dáil.
Subsection (8) of our proposed section 44 refers to the committee constituted by the section for all senior promotional appointments within the superior courts:
The Committee shall as soon as practicable make a report to the Government when requested by the Minister in accordance with subsection (2), and shall include in its report—
(a) the names of such persons as have expressed an interest in appointment to the judicial office mentioned in subsection (2), and
(b) the names of any such person or persons (not exceeding three in any case) whom the Committee recommends for such appointment.
Subsection (9) of the proposed new section states: "In advising the President in relation to the appointment of a person to a judicial office to which this section applies, the Government shall first consider for appointment those persons whose names have been recommended to the Government by the Committee in a report furnished to the Government under the provisions of this section." This was, and is, an effort to create visibility for the Government regarding what it is doing in the context of a senior appointment. First, it re-enacts the JAAB procedure whereby the Government should first consider the recommended list. That is probably as close as one can sail to the constitutional wind in asking the Government to pay attention to the report of the body. What we have in mind is that the names of persons who have expressed an interest should be the subject of knowledge of the Cabinet.
Let me make a point that I do not believe is widely understood. On a good day, if everybody became enthusiastic, a large number of people - perhaps 30 to 60 - could express an interest in being appointed as an ordinary member of the High Court. My experience was that when vacancies in the Supreme Court were advertised, the number of practitioners who expressed an interest was tiny. They were countable on one hand, or none. Few people would waste their time filling out the forms unless they were serious contenders. Of course, a few nutcases put in applications from time to time but, ignoring them for the time being, only a handful of serious contenders would have asked the JAAB to be considered.