Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Senator McDowell was in possession when progress was reported on the last occasion.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I do not have much to add to what was said on the last occasion and do not intend to delay the discussion on this amendment any further.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

We are only discussing amendment No. 86a. Is that correct? If so, I will reserve my comments.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 86a and 86b are related and being discussed together.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I was wondering about that.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I was in the Chair when progress was reported on the last occasion and said as much at the time. I simply needed to remind the House.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I will address amendment No. 86b which is the most crucial amendment. It revolves around the issue of constitutionality, a question Senator McDowell has raised on several occasions, as have I, in the hope the President of Ireland will refer this legislation to the Supreme Court. The question of the presumption of constitutionality is an important one and crucial to our role in the Houses of the Oireachtas. It seems the legislation plainly goes against the Constitution that for those of us in Seanad Éireann to enact it would represent a derogation from our obligations and duties as Members of the Oireachtas. The presumption means that a court will presume the Oireachtas intended only a constitutional construction of any section of the laws that we, as legislators, enact. It seems to be a complete mockery that the Minister actually agrees with the intent of the amendments. He has said he agrees with the intent of the amendments tabled by Senators McDowell, Boyhan and Craughwell. Apparently, he agrees completely that the order of preference and ranking or recommendation given by the judicial commission in respect of appointment should be non-binding on the Government and will say as much on the record of the House, yet, despite the fact that he will actually say it in the House, he is apparently not prepared to legislate for it. That is an extraordinary lacuna. He says he agrees with the intent of the amendments and knows that they are correct, right and so on, yet he is not prepared to do anything about it.

The Minister has been at pains on a number of occasions to point out that 74 or 75 hours of debate have passed in considering the Judicial Appointments Commission Bill. That is absolutely true. It has been a marathon. That makes it even more extraordinary that during this marathon 74 or 75 hours of debate he has still to come up with amendments which he has told the House are necessary. I do not understand why he says he will introduce an amendment on Report Stage. What is so sacrosanct about Report Stage? Why can we not have it now?

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

We may never get to Report Stage.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

That is very hopeful.

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

We may never get to it.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Would that not be wonderful?

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Can we stay on the point?

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

The Minister is making a very interesting point. If we do not get to it, would it not be more sensible to table the amendment now, rather than in some hypothetical future Report Stage debate? If the Minister is to be taken at his word, that he is amenable to addressing two specific concerns which have been raised and which he highlighted during the debate, I will outline them. Reference was made to the constraints on what an Attorney General might say or do and concerns about what the Government might be told, or know, or might not be told in certain circumstances or what it might not know, given the various interactions of key provisions of the legislation. That is the first point. The second relates to serving senior judges being required in any way to enter what will be a selection process and having this expressed in the Bill. It is incumbent on the Minister to give us sight of the amendments that are, according to him, supposed to address these concerns. The amendments must be drafted at this point, given the 74 or 75 hours of debate we have had. Thus, I wish to ask the Minister a series and wonder if he would be kind enough to answer them specifically point by point.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Will the Senator, please, speak to the amendment? I want us to stay on point.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I am hardly going to talk about saucepans which are for another day entirely. These are the questions I want to put to the Minister about the amendments. Have they been drafted? If the Minister says "Yes" and that he intends to introduce them on Report Stage, at what stage are they now? I note that he is shaking his head; presumably, therefore, they have not been drafted. Perhaps he might confirm whether that is the case.

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

Why would I draft them while I am listening to the Senator eloquently make the case for the amendments?

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

The Minister has already agreed with Senator McDowell that they are necessary.

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I need to be convinced in order to agree with the Senator.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

The Minister agrees with everyone in the House.

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

It is a question of consensus politics.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I cannot allow conversations like this to take place in the House. I would be grateful if Senator Norris made the points he has to make. I will then let the Minister respond.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Certainly, absolutely. The second point concerns the progress of the amendments. Do they have to be placed before the Cabinet to be approved beforehand? That is simply a technical question which I am sure, without any prejudice to anything, the Minister can answer. Do they have to be placed before the Cabinet to be approved? If that is the case, when does the Minister expect it to happen? At what point in the debate does he expect it to happen? Will he undertake to provide an advance copy of the proposed text of the amendments? He has acknowledged that the rationale underpinning their introduction stems from this debate in the Seanad and the matters raised by Senators. I am, therefore, looking for an advance copy of the proposed text of the amendments.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

We are discussing the two amendments tabled, not future proposed amendments.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

It is all part of the context and could not be clearer.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I understand the point the Senator is making, but we need to discuss thes amendments tabled.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

That is exactly what I am discussing. What I have been saying is that if these issues had not been raised by Senators, there would have been talk of such amendments during the course of the 74 or 75 hours of debate. That is something the Minister condemns, as does his colleague. I am not sure how I should put it, but I think it is the most neutral word I can find.

Martin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source

It is not a laughing matter.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Why, then, is Senator Conway chortling away? It is audible on the microphone. The Minister, Deputy Ross, excoriated this and called it an extraordinary waste of parliamentary time. He said he would not now indicate his intent to introduce any amendments on Report Stage. The Minister should publish his amendments if he is truly genuine about addressing the very obvious concerns that this Bill, which apart from being wholly objectionable is without any basis in sound policy making, interferes with the constitutional position. It is not sustainable for the Minister to tacitly indicate on Committee Stage that the Bill has potential constitutional issues and ask these Houses to pass it on Committee Stage when the Minister acknowledges that subsequent amendments addressing constitutional matters shall be required.

This is not about the price of milk or bread but is about the impact of the Bill, as read. The Minister has firmly indicated that he accepts the concerns which have been raised and accepts that constitutional issues arise. How can he, as a sworn officer of the Government and a Member of Dáil Éireann who has a stellar legal background, ask this House to accept a Bill to be read on Committee Stage when he knows there are constitutional issues around it? The rules of Standing Orders when it comes to Private Members' Bills, both in the Seanad and Dáil, state that if a Bill as drafted contains, in whole or in part, any objective which is unconstitutional, it does not get off the ground. That should be the same with this Bill. The same principle must apply when, at a particular reading of the Bill, the Minister has obtained amended or updated advices from the Attorney General to indicate that some constitutionality concerns do, in fact, exist. That is what the Minister has indicated in the present case and current scenario. He has indicated he will address some of the concerns on Report Stage.

The Minister explicitly stated: "I have listened carefully, particularly in regard to the role, words and deeds of the Attorney General, and what the Attorney General may or may not say and can or cannot do." This is clearly in direct relation to the amendment. These are clearly constitutional issues and the Minister knows there are. If he was to propose Report Stage amendments, he would be addressing a constitutional issue concerning the Attorney General which he has acknowledged to this House is problematic. Our duty, as Members of these Houses of the Oireachtas, is first and foremost to ensure that all legislation and every section therein is constitutional. The Bill cannot be read on Committee Stage if we all know, as the Minister has acknowledged, that it contains sections which at the very least are unconstitutional with respect to the Attorney General. That is my inference of what the Minister said and I would be very glad if he would clarify this.

Does the Minister agree that on 22 January 2019, the last occasion on which this Bill was before the House, he stated that he had listened carefully, particularly in regard to the role, words and deeds of the Attorney General, and what the Attorney General may or may not say and can or cannot do? He said he would come back to this on Report Stage in a way that would allow us to progress the Bill. He is clearly indicating that the Bill cannot progress as currently drafted, at least insofar as it affects the Attorney General, as to do so would be to knowingly pass a Bill which was unconstitutional. If that is not what the Minister is indicating, can he speak plainly as to why he believes a Report Stage amendment to the Bill concerning the role of the Attorney General is necessary to the progression of the Bill?

Quite clearly, the deal with Sinn Féin ensures that Fine Gael has a majority in the Seanad to pass the Bill as it currently stands. Sinn Féin has evaporated. I am shocked by that. There are only three of us here so I feel a quorum coming on. It is dreadful to think that these pearls of wisdom are not being flung before artificial swine.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

The Minister said he would listen carefully to the points made, principally by Senator McDowell but supported by me, about the situation regarding the Attorney General. If that is not what the Minister is indicating, can he speak plainly as to why he believes a Report Stage amendment to the Bill concerning the role of the Attorney General is necessary, when it is quite clear that the Sinn Féin deal ensures Fine Gael has a majority in the Seanad? Can the Minister, or the Cathaoirleach, advise us as to our duties when reading a Bill on Committee Stage? How can it be that we could agree that a Bill is read on Committee Stage when we believe it is repugnant to the Constitution? When the question is put to the House that the Bill passes with or without amendment, how can we possibly pass it? If we believe strongly that the Bill is unconstitutional in various of its elements, how can we possibly pretend that it is not? I do not see how we can.I am looking for advice from the Acting Chairman and the Minister. I do not know how it is possible. I really do not.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

There is a presumption of constitutionality around legislation passed by the Oireachtas.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I understand that. I thank the Acting Chairman for her helpful advice.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

The Senator has the right to vote against any piece of legislation, as he knows.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

There is no presumption of constitutionality about any Bill before the Dáil.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

There are mechanisms for questioning legislation after it has been passed. As I said, there is a presumption of constitutionality unless found otherwise.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Both Senator McDowell and I have pointed out our grave concerns about the constitutionality of the Bill. I suppose it is just up to us to vote against it.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

The Senator is actively opposing it and voting against it.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Yes, absolutely.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

That is all that the Senator can actually do and he is entitled to do so.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I see. I thank the Acting Chairman very much.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Does the Minister wish to respond to amendments Nos. 86 and 86b?

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I merely wish to point out to Senator Norris and others that at no stage did I question the constitutionality of the Bill. At no stage did I agree with any of the Senators who raised constitutional issues. If Senator Norris asks me to speak plainly on that issue, I will. At no stage did I question the constitutionality of the Bill. What I have said, because I said it on a number of occasions, is I am committed to consider bringing forward Report Stage amendments. I am not going to bring them forward now; I am anxious to listen to Senators Norris, McDowell, Boyhan and others. I do not believe it appropriate on Committee Stage that I would bring in amendments prior to the debate having been concluded. I am in listening mode, and have been.

In response to other questions that were raised by Senator Norris, yes, I do intend seeking Cabinet approval. As regards circulating the text of proposed amendments, if any, before going to Cabinet, the answer to that is no, I will not do that. Should I receive appropriate Cabinet approval for amendments, I would be happy to circulate them in the appropriate way.

Let me repeat again that I am amenable to addressing some of the concerns that have been raised. If that is the objective of amendment No. 86b, and I understand it is, then I will return on Report Stage to see how best I can address some of the issues.

As regards general Report Stage amendments, if Senator Norris wishes to press me on that at this Stage, let me say that the type of amendments under consideration for bringing forward are in areas such as the senior appointments, section 44; the matter of inhouse practising barristers and their eligibility or otherwise; a general saver relating to the constitutional function along the lines of No. 86b that we are discussing; and there may be other drafting amendments of a minor nature. In the meantime, I am happy to listen to Senators but in listening I would urge Senator Norris not to misrepresent anything I may have said either tonight or on the last occasion. I think that is the least I might request.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I will do my best not to misrepresent the Minister. He is a little bit disingenuous when he denies all association with the constitutionality question and so on and so forth because it was specifically in response to these issues of constitutionality, raised by Senator McDowell and myself, that he said that he would come back on Report Stage in a way that will allow us to progress the Bill. He has just said now that he is certainly contemplating introducing something very similar to Senator McDowell's amendment No. 86b. So, the Minister is addressing the constitutional issue and that is fine. I do not see why he does not introduce his amendment now, particularly if Senator McDowell has done all of the work for him and has tabled the amendment. It is a simple matter for the Minister to simply table the amendment. There is a certain amount of fudging going on here but I am glad to see that the Government is moving at least.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

It is normal procedure when an issue arises on Committee Stage for it to be tabled on Report Stage, as the Senator probably knows better than I.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I do not know anything better than the Acting Chairman.

Catherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

The Senator knows about certain things.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

This is unusual in that we have had the Minister complaining about spending 74 or 75 hours debating this legislation but it gives him plenty of time to table his amendments any time he wants. He is welcome to do so.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

To wrap up the debate on amendments Nos. 86a and 86b, they are related. Amendment No. 86b proposes a new section 41, which is designed to clearly state what seems to be the actual consensus right across this House. Also, it seems now, I am happy to say and without exaggerating the situation, at least not to be frowned upon by the Minister as a proposition. To me, central to the question as to whether this Bill should progress any further is whether we are willing in this House to acknowledge that contrary to the suggestions made by the champion of this Bill, and I will not personalise it any further, this does not interfere with the traditional function, right and duty of the Government, under the Constitution, to make its own decisions. The commission, just like the board that exists at the moment is purely advisory. In those circumstances, I have nothing further to add except to welcome the fact that the Minister sees some potential merit in introducing some kind of an amendment on Report Stage to mirror the proposal contained in amendment No. 86b.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 86b:

In page 28, between lines 25 and 26, to insert the following:

“Government’s function under Article 35 of Constitution

41. No provision of this Act affects in any way the function and duty of the Government, in advising the President on appointment to judicial office under Article 35 of the Constitution, to advise in accordance with its own judgment and preference the appointment of any person who is eligible to be appointed to such judicial office.”.

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 86c, 86d and 86e are related and may be discussed together by agreement.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 86c:

In page 28, between lines 25 and 26, to insert the following:“Communication with person eligible for appointment to judicial office

41. No provision of this Act affects, limits or inhibits the right of the Government, or of the Minister or the Attorney General acting on the authority of the Government, to communicate with a person eligible for appointment to any judicial office with a view to establishing whether that person is willing to accept an appointment to such judicial office by the President acting on the advice of the Government.”.

This amendment seeks to insert a new section at this point in the Bill to state that no provision of the Bill when enacted affects, limits or inhibits the right of the Government, the Minister, or the Attorney General acting on behalf of the Government to communicate with a person eligible for appointment to any judicial office with a view to establishing whether that person is willing to accept an appointment to such judicial office by the President, acting on the advice of the Government. The purpose of this amendment is to make it clear that it frequently has been the case that the Government has asked the Minister or the Attorney General to communicate with a person eligible for appointment to any judicial office to establish whether that person was willing to accept an appointment to such office by the President on the advice of the Government. There is nothing wrong with that if there is some celebrated barrister or solicitor who is eminently suited.

What can happen and does happen, and from my experience it happened on more than one occasion, is that, anticipating a vacancy in a judicial office, the Government, through the agency of the Attorney General or the Minister for Justice and Equality, goes to an individual and asks that person whether he or she would be interested in appointment to the office. This is done with a view, first, to get the person to think about it; second, to indicate a willingness on the part of the Government to appoint that person in order that it would not be simply a suggestion that if the person was interested, he or she should put in an application and see how he or she got on; and third, to select somebody who was well suited or else somebody whom the Government thought might be shy about putting his or her name forward for appointment on the basis that it would require a good deal of effort to do it with no guarantee of success.

There is nothing wrong with such a procedure and in fact it has produced some of the most eminent judges on the Bench. Some of the most senior judges on the Bench have been approached in this way. What worries me is that this practice would be phased out or regarded as improper because it has been suggested in the Bill as constituted that all applicants should submit their application to the Judicial Appointments Commission and that canvassing disqualifies.

I presume the Minister does not have an objection in principle to acknowledging that this practice is perfectly legitimate and should not be excluded or prohibited in any sense by the passage of the Bill. If there is some principled objection to it, I would like to hear what it is, but as far as I am concerned, if the Government is thinking of making an appointment at this level, there is a certain reality to it all. Somebody has to think that he or she is likely to be appointed if he or she responds positively to this invitation. That is a good thing. An eminently qualified lawyer could be in a state of mind of wondering what to do with the rest of his or her career, whether to make an application to be a judge, and if he or she does so, what this Judicial Appointments Commission will make of the application, who else will be appointed with that lawyer, and whether he or she wants to go down that road. It is entirely different, however, if the Attorney General of the day indicates that, on the authority of the Government, he or she is inviting the judge to consider accepting an appointment by the Government.I want it to be clear in section 41. The Minister agrees with me that this practice is legitimate and will survive the enactment of this legislation as he intends it to finally appear, if it is enacted. If there is a problem with it, I would like to hear what the objection to it is in order that we can work out the underlying aims of the legislation. If it is designed to discourage such a thing from happening, I have a big problem with it. It is most inadvisable and will end up producing an inferior outcome to that which is possible if this practice is admitted to be legitimate and it is made clear that it will survive the passage of the legislation.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

On a point of order, are amendments Nos. 86c to 86h, inclusive, being discussed together?

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

No. I made it clear that amendments Nos. 86c to 86e, inclusive, were related and would be discussed together, by agreement. The Senator agreed to that proposal.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Thank you.

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I have already set out, in respect of previous amendments, the policy concerns I have about aspects of this process. I have underlined the Government’s approach to the question of the promotion of judges and requirements generally for the promotion of judges to be administered by the commission in the selection and recommendation of persons in that connection. We have passed section 39.

I want to make it clear that the provisions of section 62 will apply in cases as the no canvassing provisions. The exercising of influence and the matter of improper influence apply to an applicant under section 39 or a person who may have expressed an interest under section 44. My intention is to retain the requirements of section 39, whereby any person, including a judge, other than for the post of Chief Justice and the two most senior presidential posts, must apply to the commission when he or she wishes to be considered. I have already indicated that further work needs to be done ahead of Report Stage in respect of the top three positions. Amendments in this respect will centre on section 44.

Under the new system, I do not envisage the type of channel of influence or expectation to which Senator McDowell referred. I do not believe there is a need for one, even in respect of what the Senator described as a celebrated barrister or candidate.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

It could be a celebrated solicitor.

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I do not accept that there is a need for a back channel, or even a front channel, as evidenced. I do not believe there is a need for one where a person can make direct representations in furtherance of his or her application. Accordingly, I am not in favour of the approach adopted in amendment No. 86c.

Section 39 must be seen as key. It provides that a person, including a person who for the time being is a serving judge or a relevant officeholder, who wishes to be considered for appointment to judicial office, will make an application to the commission. That application will made be in writing or in such other format as may be specified. For all appointments, other than the three positions envisaged under section 44, it is clear that the only method for entering into the process will be by direct application to the commission. Accepting amendment No. 86c would impact seriously and adversely on the Government’s policy. It would cross in a real and significant manner the matter of the promotion of serving judges and how it is managed.

In spite of what Senator McDowell said, it is important that we move towards a much more transparent process, as described by Senators speaking in favour of the Bill. It is also something of a level playing field in the making of appointments, including appointments of people who might be serving judges either across the line or a what might be regarded as another lower court level. It is a fundamental tenet of the Bill that we are extending the remit enjoyed by the Judicial Appointments Advisory Board, JAAB, which has nothing to do with the elevation of serving judges as it is bypassed in the current system. I invite Senators McDowell and Norris who are dealing with this legislation on a line by line basis to agree with me that the current situation with the JAAB is less than satisfactory if a serving judge in any particular court wishes to be considered for promotion. "Promotion" is not a word that is entirely appropriate, but it is used in everyday language. It is about moving from one court to another. It can be called promotion or elevation. The fact that a process is lacking is in need of attention. However, it might easily be built-in by way of application. I remind Senators that we are moving towards a reformed regime where we will have a more comprehensive and transparent process of selection, recommendation and nomination as happens in other jurisdictions. I do not accept that there is a need for the type of channel mentioned in the course of the debate.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I think the Minister has slightly misinterpreted our point. He spoke about canvassing and exercising improper influence. One has to take into account the direction of the communication. The communication actually comes from the Government, the Minister or the Attorney General acting on the authority of the Government. They communicate with-----

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

Reverse canvassing.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I do not know as I have never heard of reverse canvassing. It seems odd to me. The Minister has said they must then apply to the commission. Even if the amendment were to be passed, a candidate would still have to apply to the commission, but that is not a real point.Has Senator McDowell any comments on the possible interpretation of his amendment as a form of establishment "you scratch my back" cronyism and so on? It could be held by commentators who object to the position taken by Senator McDowell and me that this is just the old boy network again or is just people who are in the Government promoting their friends.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

A number of points arise from what the Minister and Senator Norris have said on amendment No. 86c.

First, it is becoming apparent that the Minister believes the terms of section 39 will be the sole method with which any judge can effectively be engaged at all in respect of an appointment. I believe that is the purpose of this Bill. What the Minister says does not shock me in the slightest or surprise me. I believe he believes section 39 is to be the sole and exclusive method for communication between the Government and eligible people as to their appointment to the Bench. He raised the question of the prohibition on canvassing. I do not know whether the present regime in which one indicates to the Secretary of the Government that one is willing to serve in respect of an appointment amounts to canvassing. If the Minister thinks it does, that worries me even more.

I refer to a central aspect of the legislation if, as the Minister implies, section 39 effectively is an exclusive measure and that this and no other way is how one will become a judge, and one will apply to the commission in the ordinary way, and we will come to the consequences of that in later amendments. If it is the case that this is to be the sole means of becoming a judge, in the interest of what the Minister calls a level playing pitch among applicants, that has serious constitutional implications. I agree with him that the term "promotional" is an unfortunate piece of shorthand, especially in respect of appointments of High Court, Court of Appeal and Supreme Court judges to either the next senior court or to a more senior position in their own court. I believe this issue is of fundamental importance. This amendment has been tabled to tease out the issue completely and flush out what this Bill is all about. If it is saying that this will be the only way in future that a judge can actually be made a judge at a different level or that an applicant can be made a judge and that the kind of communication to which I have referred here and which has happened to the great benefit of the Judiciary and of the Irish State would be inconsistent with the Act and that it would be inconsistent for that channel ever to be used in future with the passage of this Act, then there is a very serious constitutional question.

This is the point that I made before. The Minister seems to think I am repeating myself ad nauseam. If he says, and keeps pretending, that nothing in this Act prevents the Government from advising the President to appoint anybody who is eligible to a judicial appointment and if he keeps on using that tattered fig leaf as his constitutional defence while also stating there can be no communication between the Government and any candidate and that the Government may not be aware of who has actually applied to the commission successfully or unsuccessfully, then he is narrowing down the scope of what the Government can do. He is really asking the Government to play blind man's bluff. If the Government sees three names in front of it and decides it does not like the look of them, then what is it to do? Is it to tell the commission it did not think much of the commission's shortlist?

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

That might be a good idea.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

Then what is it to do? Is it to state it will make its own appointment, as it did not think much of those three? How will it make that appointment? Will it tap somebody on the shoulder and tell that person it intends appointing him or her? Will it know whether an individual has already been appointed and rejected by the commission? We do not know because this is left deliberately vague but we will be teasing out whether it is the case.

The Minister is saying that his safety valve of constitutionality is that nothing in this proposed legislation interferes with the right of the Government to make appointments that are not recommended by the commission. That is almost meaningless because the Government will not know who is available, will not itself be able to explore who is available and will not be able to suggest to somebody who is not short-listed that it thinks he or she is the man or the woman for this job and it would like him or her, for instance, to be on the Supreme Court. If one keeps saying all of that to the Government, then what is left of its constitutional right to make a non-recommended appointment? If the Government cannot even know what cohort of people it is dealing with and if it cannot know whether the person in question has any interest in being a judge, then how is it going to exercise its right to make an appointment? That is the nonsense that lies at the heart of this legislation. It is based on one proposition, namely, there seems to be contempt for the proposition that the Executive in Ireland, under the Constitution, has rights and duties. One of the rights and duties the Executive has, and I use the terms "right" and "duty" jointly, is to make the best appointment it believes is possible and is open to it.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Hear, hear.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

That is the Executive's primary function. If it does not agree with the three names that come forward on some short-listed basis from a commission, it is not merely entitled to reject them. It also can decide it can do better than that. What if it takes advice from the Attorney General, the Minister for Justice and Equality or whoever and decides it could do better? What if it decides that Mrs. so and so is a highly qualified solicitor or barrister or that Ms Justice so and so is a very impressive member of the Bench and it would like her to be on the Supreme Court or the Court of Appeal in preference to the three names it got? How is it to make that executive decision, which is its constitutional entitlement, duty and prerogative, if we circumscribe it all with hedges and camouflage to make it impossible for the Executive to know what has actually happened at this commission? How is it to do it? How can it possibly guess that Ms Justice so and so was an unsuccessful candidate, was passed over or has been passed over for four successive appointments by this group, when it might ask why, in the name of God, is she not getting a recommendation? Maybe it is because she is not interested at all. The Executive would not be entitled to know any of those facts. It would not be entitled to know whether she is interested in the promotion. It is not entitled to know whether she has applied. It is not entitled to know how many times she has been rejected.

That is what this legislation is all about. If the people who are proposing this legislation can see no constitutional problem with that, then in my view they disrespect the function of Government. We have a Constitution. We have a Legislature, which has constitutional functions. We have a separation of powers between the Legislature, the Executive and the Judiciary. One of the things that is enshrined in the Constitution is that the Executive is the body of people who bear responsibility, not merely on paper or as a rubber stamp for some commission but as a solemn obligation by reason of being elected members of Government by Dáil Éireann and of being part of the Executive, to exercise their collective judgment on the issue of who is or is not the best person available. The function simply cannot be delegated. It cannot be a subject of deferment or saying, "we don't know, these people tell us this is the best person". That is not good enough.If a Cabinet believes that the three people put forward for consideration are not the kind of people it wants on the Supreme Court, it is not merely entitled but, rather, duty bound to consider others who it considers more suited for appointment to the role, such as a stellar man or woman on the Bench-----

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

The Cabinet is not allowed to know who those people are.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

How can it consider those persons if it is not allowed to know who is interested in the position? This amendment aims to tease out the unconstitutionality of the intention of the Bill. As the Minister again hinted today, that intention is to ensure that by reason of the prohibition on canvassing and due to section 39, which was forced through against my wishes, the only practical way in which somebody can be made a judge-----

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Including reverse canvassing.

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

That is not something we have heard of before.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I will try it tonight.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

-----will be by going through the appointments commission. In 2004, there was a very good reason for the Judicial Appointments Advisory Board, JAAB, process not being applied to serving Judiciary, namely, that the Government did not have to heed the advice of the Judicial Appointments Advisory Board regarding the merits or demerits of a High Court judge seeking appointment to the Supreme Court. Rather, it could make up its own mind in that regard.

The problem with this legislation is that it does not simply provide that there be a shortlist. I would have no problem with there being a shortlist. Indeed, many people think the list submitted by the JAAB was far too long in some cases, although for most senior positions it was not overly long according to my recollection, nominating between five and eight candidates on many occasions. The shortlist is not the problem. Rather, the problem is that we are faced with an attempt to reduce to almost zero the constitutional function of the Executive. One of the problems in that regard is that there is a tendency, particularly among legislators - and we should be conscious of it - to think that Executive discretion is wrong or suspect or that its exercise in the past has been unfortunate or suboptimal or that if JAAB had been given the function of vetting the appointment of judges to promotional appointments, to use that terrible phrase, there would have been a better outcome. I reject such arguments. The Legislature has no business treading so firmly on the constitutional right of the Executive to make decisions of this kind. If the Minister is happy to insert a safety valve, as he has here and there in the Bill, to the effect that nothing in the Bill constrains the Government in how it exercises its role of advising the President on appointments to the Bench, but that is made almost useless by these circumscribing provisions, then we are going down the road of taking from the Executive nearly all of its discretion.

The Minister and Senator Norris have discussed reverse canvassing. That is not what we are dealing with. The function of the Executive is to make its own decision on matters such as appointing judges to the Supreme Court. Its function is to make its own decision on the merits and demerits. It may take advice from whomever it chooses but it is duty bound to exercise its judgment and do what it believes is best for the country and the Supreme Court in making such appointments. The unconstitutionality arises in that the reduction to the phrase "reverse canvassing" of a process whereby an envoy of the Government goes to a serving judge or an eminent solicitor or barrister to convey the wish of the Government that the person apply for the job and the suggestion that that circumvents openness, transparency and an even playing pitch, puts those concepts on an equal par with the Executive's right and duty to make the best decision it considers appropriate in respect of particular appointment.

It is not open to this House to tell the Cabinet that criteria it may use are not good enough, that the House wants a system whereby everybody on the Bench who will be considered for promotional appointment must have been recommended by the judicial appointments commission and that the Government, even if retains its residual power on paper, should be rendered incapable of exercising that power due to ignorance and statutory provisions. If that is the philosophy behind this legislation, let that be said. The Minister has effectively said it is the philosophy of this legislation. Let that be made clear such that if the constitutionality of this scheme of reform, as the Minister calls it, is considered by the courts it would be very clear why the Bill is drafted in the way it is, why it contains its particular provisions and why certain amendments which sought to uphold the rights of the Executive in making judicial appointments were rejected.

I make no apology for tabling this amendment because it has done exactly as I hoped, namely, it has drawn out the Minister on how he sees judicial appointments being made in the future. He does not hope that they would all be made through the judicial appointments commission system. Rather, he is saying that the provisions of this Bill are intended to ensure that that is the case. The corollary of that is that there will be no judicial appointments outside that system because it will be so difficult for the Executive to work out who is available and who is not, who was rejected and who was not and to exercise its own judgment on the matter. Simply, it will not be worth the candle.

If one wishes to cut off the means of communication whereby the Executive through its envoy, whether the Attorney General, the Minister for Justice and Equality or the Taoiseach, inquires of a person who may or may not be a serving judge as to whether he or she would accept an appointment to the Supreme Court, the Court of Appeal or another court - which is not reverse canvassing - one is telling the Executive that its power and discretion will be radically cut back to practically nothing or to meaninglessness. That is what this concerns. That seems to be the admitted policy behind the Bill. I am not impressed by the suggestion that it is a level playing pitch. This is not a game which has a level playing pitch.We are dealing with Executive discretion as to who should or should not be appointed to a vacancy in the Supreme Court. There does not have to be a level playing pitch between two people because the Executive may have a very clear view that it wants that person for that job and not one of three other people whom it does not particularly want for the job. It could want a particular type of person or a person of a particular outlook. A level playing pitch does not come into it.

This system is not transparent because as the Bill now stands, and subject to the amendments that have yet to be considered, nobody will know who was successful or unsuccessful and who was rejected time after time. Nobody will know any of these things, least of all the Government, and the Government most of all will be kept in the dark on the issues. I have an absolute rooted opposition to the policy the Minister has just enunciated and the philosophy that underlies the Bill. There is simply nothing wrong with the Government communicating with somebody to inquire whether he or she would accept a position in the Supreme Court. It has been describe as reverse canvassing. It is part of the function of the Government to make inquiries that will make its decision work. It is a necessary outcrop of having the discretion to appoint an eligible person to the Supreme Court to be able to communicate directly with that person and ask whether he or she is willing to take the position.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Hear, hear.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

One is on one side of this issue or the other. One cannot have it both ways. What worries me about the Bill, and I do not want to attack the Minister personally or the Department, is that there is a certain cowardice in saying nothing prevents the Government from making its own choice but it must do so in a fog of ignorance and in a manner that prevents it from giving effect to its own preference by making inquiries, which are a necessary adjunct to the discretion the Bill purports to preserve.

That is what I have to say about amendment No. 86c.

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Perhaps the Minister might like to comment.

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

No, I have dealt with this issue.

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

The matter has been dealt with and Senator McDowell and the Minister have made their position is clear.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

We must also discuss the other amendments in the group.

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Of course.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

We have dealt with that one.

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 86d and 86e.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I hope I will have no difficulty in persuading the Minister that amendment 86d is absolutely unacceptable. It states:

In page 28, between lines 25 and 26, to insert the following:"Disclosure of identity of persons eligible for appointment to judicial office

41.Notwithstanding the provisions of sections 27and 28, nothing in this Act renders it unlawful for the Attorney General to inform members of the Government of the identity of persons who are eligible for appointment to any judicial office and who have indicated a willingness to be appointed to such office by the President on the advice of the Government, including persons who have applied to the Commission for recommendation for appointment but who have not been recommended by the Commission for such appointment.".

Sections 27 and 29 deal with confidentiality. If this amendment is not accepted the Bill will be manifestly unconstitutional. If the Attorney General must sit on this body and see people being rejected time after time or being passed over in favour of other people and he or she is prohibited from telling the Cabinet that Ms Justice Bloggs has applied four times and has never featured on a shortlist selected by the commission then the Bill is, on yet another ground, manifestly unconstitutional. This, combined with the rejection of the previous amendment, would be a real canary in the coal mine. If we cannot have acceptance of these amendments we know precisely what we are dealing with, which is an onslaught on the prerogatives of the Executive under the Constitution.

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

This goes to the very heart of the Bill. It is absolutely ridiculous to suggest the Attorney General should be criminally liable for giving information germane to the discussion to members of the Government. It is ridiculous. It ties their hands. I cannot express strongly enough my opposition to what is in the Bill already. We speak a lot about openness, transparency and accountability. Is the Government to be deprived of information that is necessary for it to make a proper and balanced judgment? It is the height of legislative absurdity.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

If, in respect of the Court of Appeal or the Supreme Court, the Government gets the same three names recommended to it on three successive occasions and does not like them, is it not entitled to inquire who is being passed over for those three people to be named and why the commission insists on putting those three people before the Government for nomination when the Government has already made clear through one decision that it is not impressed by them? If this is not possible it underlines what I am saying about the onslaught on the Executive's discretion. If the Government cannot understand the true lie of the land in making its constitutional decision and have a 100% accurate picture of who is consistently being put forward on a shortlist and who is not, and if it cannot ask why the people who are not being put forward are failing, what is wrong with them and why the commission keeps stating Ms Justice Bloggs and Mr. Justice Bloggs are people who will never appear on the shortlist, there is something radically wrong with the intended operation of the Bill.

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I refer to sections 27 and 28 because I do not believe we can read the amendments, in particular amendment number 86d, without reference to the confidential information and the duty of confidentiality of certain proceedings and matters, as evidenced by the sections 27 and 28 of the Bill that have already been passed. From listening to Senator McDowell, it seems this is about the role and function of the Attorney General and the manner in which the person in that office may be obliged or prevented from communicating with the Government or the Cabinet on the matter of the recommendations. It seems Senator McDowell is most concerned about the confidentiality requirements of the Bill and that those requirements imply the Attorney General will be unable to tell the Cabinet the names of the persons who have not been recommended by the commission.Previously, we heard an example of a situation where the Cabinet was minded not to appoint a recommended person and the Attorney General was asked about another applicant. I must repeat what I have said a number of times - it will not be lawful for the legal adviser to the Government, namely, the Attorney General, to advise the Government against the recommendations of the commission in the context of there being a better candidate, be that an exceptional barrister or a celebrated lawyer. The fundamental requirements of confidentiality are evidenced in sections 27 and 28. They make it clear that a member of the commission, except for the purposes of the Bill once enacted, shall not in respect of persons applying for judicial office disclose, among other matters, the proceedings of the commission. The Attorney General is a member of the commission and will presumably be participating fully in the deliberative process. As a member of the commission, he is bound by the same statutory obligations as other members of the commission. It seems to me that the Bill is clear on these matters. Therefore, I am not prepared to accept the amendment.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I listened carefully to what the Minister just said, but I am absolutely mesmerised by what I did not hear and what I failed to grasp in what he said. Is the Attorney General to be free to inform the Cabinet-----

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

No.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

-----that someone has applied a number of times and has been passed over?

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Evidently not.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

The answer to that is either "Yes" or "No". If the answer is "No", as Senator Norris seems to think is the case, it only increases my worries and deeply held sentiment that the Bill is intended to have an unconstitutional effect. Imagine the Cabinet getting the names of three people it is not keen on for appointment and someone asking whether Ms Justice or Mr. Justice so and so would be better. The Attorney General could advise the Cabinet that so and so might be better. Before the Cabinet said "No" to the three, the Minister for Justice and Equality would presumably ask whether the person under discussion was remotely interested in the job. The Attorney General, however, would not be allowed to tell the Cabinet whether the person in question had made an application and been turned down a number of times. Since the Minister has rejected the last amendment, nor could the Attorney General tap that person on the shoulder and invite her or him to indicate whether she or he is interested, as that would interfere with the so-called level playing pitch.

I listened to the Minister's disposition. It reminded me of F. E. Smith, Lord Birkenhead, when he was a cheeky barrister making a long submission before a particular judge. The judge was an irascible and impatient man. He told Mr. Smith that, having listened to him for an hour, he was none the wiser, to which Mr. Smith said: "None the wiser, perhaps, my lord but certainly better informed." I now wonder whether I am in any sense informed as to whether the Minister is saying that the Attorney General must keep it a secret from the Government-----

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Of course he is.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

-----that a particular candidate whom it is discussing has been rejected on a number of occasions and stands rejected from being shortlisted? I would just like to know. Rather than circling around the issue, I want to know the plain, simple, straight proposition. Is that what this Bill actually says?

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thought I had made that clear. A reading of sections 27 and 28 makes it clear that members of the commission shall be bound by confidentiality. A member of the commission is the Attorney General. Therefore, the Attorney General will be bound by a similar stricture.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

Then I really despair of this Government. The Bill would not be in its present form and be populated with all of these unconstitutional provisions were it not for the enthusiasm of one member of the Government. The Minister, who is guiding the legislation through this House, is asking us to accept as a constitutional proposition that the Attorney General should be prohibited from informing the Cabinet of whether a particular person whom it wants to consider for appointment as a judge has sought the position in question. Nothing could be more unconstitutional than that. Where does this House get the right to say to the Attorney General that he cannot do that? He is being placed on the commission - he would not be there were it not for legislation - but, having put him on the commission-----

Charles Flanagan (Laois, Fine Gael)
Link to this: Individually | In context | Oireachtas source

He would be on the commission if it were not for the amendment-----

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

That was the Minister's measure. The Minister put him on the commission. The Minister is now saying that the person involved is to be circumscribed by a greater duty of confidentiality to the commission than by a duty of frankness and-----

David Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Accountability.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

-----accountability to the people who the Constitution says he is there to advise on matters of law and legal opinion. Where does this House get the right to tell an Attorney General what she or he can tell the Cabinet about what he or she knows about-----

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

The Senator has discussed this already.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

-----the availability of a person for judicial appointment when the Cabinet, because the three people put forward are not impressive, asks about Ms Justice so and so? We are now being told by the Minister that the Attorney General will be bound not to tell the Cabinet that the judge in question has applied a number of times, has never featured on a shortlist and, having applied on this occasion, has shown an interest. How can that be right? It is plain wrong and daft. If there were children listening to this debate, they would see how foolish that provision was. The excuse that this is being done in the interest of openness, transparency and a level playing pitch is fantasy. There is nothing open about it; it is secrecy. There is nothing transparent about the result at all since no one is entitled to know who is on the shortlist. There is nothing level about the playing pitch if the Government is entitled to appoint Ms Justice so and so to the Supreme Court but is to be deliberately kept in the dark about the fact that she wants to be appointed and has, on a number of occasions, sought appointment to the Supreme Court because the legislation prevents the Government from knowing that. With respect, that is a huge hole in this Bill.

It is 9 p.m. and we have not reached amendment No. 86c yet.

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

It is getting close to 9 p.m.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I would be happy to report progress.

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

The Senator has some seconds left.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

Before I move on to amendment No. 86c, I wish to emphasise the gravity of the admissions that are being made by the people who are promoting this draft legislation.

I wish to make a point that I have made a number of times.

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I am afraid that time has run out. The Senator can save his point because-----

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

It would fit in here very well. This Bill will damage the quality of the Judiciary if it is enacted in its present form. It will inhibit the promotion of the best judges.

Paul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

When is it proposed to sit again?

Colm Burke (Fine Gael)
Link to this: Individually | In context | Oireachtas source

At 10.30 a.m. tomorrow.