Tuesday, 5 February 2019
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
I welcome the Minister back to the House. Amendment No. 86c was under discussion when the debate was adjourned on the last occasion. It provides that no provision of the Act "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."
We spoke on the last occasion at some length about whether this was, to use a phrase to which I object, "reverse canvassing". I inquire of the Minister whether he thinks that any provision of the Bill will inhibit the Minister for Justice and Equality or the Attorney General acting on behalf of the Government to communicate with the person with a view to establishing whether that person is willing to accept an appointment to judicial office by the President acting on the advice of the Government. Is he willing to accept that amendment and, if not, will he tell us why?
I have never heard of this business of reverse canvassing. Could the Minister confirm that this is a peculiar coinage of his own?If not, could he give us a standard dictionary definition of it because if the Minister does not accept this amendment, it seems to me it is one of the areas where this Bill may be impugned for a lack of constitutionality? I would be glad if President Michael D. Higgins saw fit to return this Bill to the Supreme Court to adjudicate on its constitutionality. The nonsense that we cannot communicate with people, all these secrets and everything else is political correctness gone mad.
This is a slight diversion but I want to put it on the record. I refer to all the stuff one has to have and all the nonsense and officialdom. I have had an account in the Bank of Ireland head office for 72 years, since I was two. I wanted to change one account from a deposit account to an account with a cheque book. They wrote back to me asking for my passport and a utility bill. I do not know if they wanted my fingerprints, but it is absolute nonsense. We should put a stop to bureaucracy as much as we can.
On the free flow of information, I have made this point before but I will make it again because I insist upon it. If we are looking for good decisions in government, it is our responsibility as legislators to allow for the provision of the greatest possible volume of information and the freest possible flow of information between Government and people who want to put themselves forward for judicial appointment. I believe, and I will come back to this again, the phrase "reverse canvassing" is a piece of mischievous idiocy on the part of the Minister. I think he is gullying us and tempting us with reverse canvassing but perhaps he will tell us if this is a felicitous invention of his own or has it ever occurred anywhere in the known or unknown universes before he emitted the phrase in Seanad Éireann.
No. In short, I am not minded to accept any amendment that would in any way circumvent the judicial appointments commission. That is the import of amendment No. 86c. Indeed, I can say the same about amendment Nos. 86a to 86e, inclusive. I am not in favour of the approach taken in the amendment. I do not believe we should have the type of channel, be it a front channel or a back channel, envisaged in the amendment. I do not believe it is appropriate that representations or communications in the form of representations might be made, whether it is canvassing, reverse canvassing or otherwise. It is important that the provisions applicable to this commission be honoured throughout the Bill. That is the big change from the current process where members of the Judiciary who wish to be considered do so in a way that is outside the appointments process. One of the main policy planks of this new Bill is to ensure a measure of transparency, that is, by ensuring that everyone who wishes to be considered for appointment to the court would do so through the channel that is the format expressed in the Bill. I am not minded to go outside that process, be it a word in the ear, a tap on the shoulder or an informal communications channel. I am not minded, therefore, to accept the amendment.
We are dealing here with a fairly basic constitutional principle and just to say it is undesirable while denying this House the right to make an amendment to make it clear that it is possible seems to me to be attempting to use this legislation to frighten any future Government away from exercising its constitutional prerogatives. Why is it undesirable? Supposing a cabinet looks at a shortlist of three for some position in the courts and it decides that it is not happy with those three, what is it to do? If the Minister is saying that the Attorney General cannot ask anybody else if they are willing to take the job and that nobody else can indicate that they would be willing to take the job - I do not like the word; I prefer "position" - , although he says he is preserving the Government's constitutional prerogative, he is no longer providing a means whereby it can be exercised. If the constitutionality of this Bill was being considered, a court would have to interpret it in a manner which is consistent with the Constitution. If the court came to the view that there had to be a channel of communication between the Government and candidates for the Judiciary where it rejected the shortlist, is the purpose of this Bill to close off those channels of communication or is it not?
I will make a couple of points. First, I do not agree with my distinguished colleague, Senator McDowell, in objecting to the word "job". Being a judge is a job. They get paid for it and they do it. It is a job. Let us not be snobbish about it. We do not all live in Rathmines. Second, the Minister has described this as undesirable. In what way is it undesirable? Can he give reasons for considering this process to be undesirable?
Many years ago - it must be over 50 years ago - a job came up in the English department in Trinity College. Some 47 people applied for it, and I was given the wink. I had not been considering applying for it; I did not think I would get it. I did apply for it and I got it. It was amazing, particularly since the leading candidate delighted me because they asked him what he thought about Anglo-Irish literature and he said he would prefer not to think about it at all. That was the end of him, and I got the job. I am very grateful for this idea of being able to let somebody know about a job because there might be a very good candidate who had not thought of it, was away on holidays or whatever.
On the idea of letting somebody know that the Government regards them as suitably qualified and a proper person, the Minister is talking about openness and transparency. Surely to God that is openness and transparency. There is no intention of concealing this. If the Minister would prefer, we could insert an additional form of words in the amendment saying that this correspondence had to be published in Iris Oifigiúilso that the public would know about it. I have no problem with the public knowing but I certainly believe that a member of the Judiciary should be allowed to know that the Government would look favourably upon his or her candidacy.I am struck by the logic and justness of Senator McDowell's argument that if there are only three candidates - there is a limit of three on these shortlists - and if all three are regarded by the Government as not completely suitable, what is it to do? It could issue advice to all of those involved or make a special broadcast on Raidió Éireann to the effect that there is a judicial appointment coming up but that the three boyos who are in for it are all useless and that it would therefore like to solicit applications from others. What is proposed seems to be a nonsense. Senator McDowell is well advised in what he says regarding the constitutionality of it. This is, to quote a favourite phrase from my late brother, the rock upon which the legislation might perish. Perhaps the Government thinks that would be quite a good idea. Perhaps it secretly approves of the work that Senator McDowell and I, among others, have done in laying the foundation for a review of this legislation regarding its constitutionality.
There may well be circumstances, for example, where the Government could ask the commission to revisit, to readvertise or to rehear. There may be circumstances, under the provisions of the Bill, where the names submitted by the commission will not be accepted. I do not envisage that to be the order of the day but there may well be exceptional circumstances which would and should allow for the Government to form a clear view that none of the names submitted reach an acceptable threshold for the Government. I do not expect that it would happen but the constitutional requirement is such that the Government can exercise or form such a view at any stage. In order to facilitate a revisiting or rehearing, there may be circumstances in which it is conceivable that somebody might be asked if he or she is interested in a particular position.
The Attorney General is the legal adviser to the Government, as the Senator is aware. The discretion on the part of the Government to accept or reject the recommendation of the commission under the Constitution still very much stands.
The problem with all of this is that we are faced with a situation where the Government is entitled to reject the three names recommended to it in respect, for example, of the appointment of an ordinary member of the Supreme Court. What is it to do when that happens? I do not see written into this Bill the phrase, "Sorry, try again". I do not see provision for an indication to the commission that the Government is unhappy with the three people nominated and that it requires the commission to readvertise the position or to look again at candidates 4, 5 and 6 to see if any of them might be suitable. With the greatest respect, I do not think that any of that is possible under this Bill. I do not think the Government is entitled to state that candidates 1, 2 and 3 on the list are not of interest to it for appointment to the Supreme Court and to ask the commission to look again at the remainder. I do not think there is any provision for interaction between the commission and the Government along those lines, which is a very serious problem. The Government is faced with three names which it has rejected or with which it is not happy, deeming the individuals involved not to be the best. It does not propose to appoint any of them to the Supreme Court but what it is to do then? Is it to communicate with the commission and ask it to look at candidates 4, 5 and 6? Is it to ask the commission to give it another three names until it is happy? No, because that would fly in the face of that the Minister says is the policy of this legislation. Is the commission to readvertise the post, throw all of the cards up in the air and see how they fall a second time? Perhaps more people will apply second time around but the commission might have no idea who the Government thought was better than those recommended and who would be acceptable to it.
This is very much the central problem with this legislation. If the Government has a prerogative to reject the three names suggested, there is absolutely no guidance or provision in the legislation for telling the commission to come up with other names. If the Government, in those circumstances, tried to remedy the situation by asking the Attorney General if there is anyone better that he or she thinks the Government should appoint and whether that person is available, the Minister is saying that this, at a minimum, is undesirable. He called this reverse canvassing and it seems to be something which he is not prepared to accept can happen because he keeps rejecting amendments to permit it to happen. What are we to make of this legislation? As already stated, if legislation is put to the test, the test that the courts apply is whether there is a reasonable constitutional construction which would save the Bill. The courts do not determine whether the provision means either A or B. If, on the face of it, the legislation looks like it means A but B is also a reasonable interpretation of it and if B is the constitutional interpretation of it, then under the double construction rule, the courts save the legislation and say that it means B. I am merely asking why, in those circumstances, the Minister is incapable of accepting any amendment which would allow the Government to exercise its discretion and to take the initiative in certain circumstances to identify a person it considers suitable and to determine whether that person is ready and willing to serve as, for example, an ordinary member of the Supreme Court. I cannot see why this legislation would not make such provision, except for two possible reasons. Either the Minister is unwilling to accept an amendment to that effect because it might look like a formal escape route for the Government from the judicial appointments commission process or, alternatively, this is a political decision on the part of the Government to keep up the pretence that the Government will, in effect, never appoint somebody who is not on the judicial appointments commission shortlist. Those two possibilities are equally reprehensible.
In the dying minutes of the debate on the previous occasion, I asked the Minister to state clearly whether the Attorney General would be entitled to inform the Government as to whether there were other people seeking judicial appointment who were not shortlisted.At an earlier stage in the debate the Minister intimated that he was minded to reconsider whether there could be an effective prohibition on the Attorney General making that information available to the Government. He stated towards the end of proceedings on the last occasion this was discussed. He said:
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.
I need not remind the Minister or the House that the stricture in question is not merely a duty of confidentiality as one could be held criminally liable for its breach. We have come to a sorry pass. The Minister may be proceeding with this as a bluff. I do not not impute that he or the Department is doing so in bad faith. The programme for Government proposed that the shortlist would contain the least number of persons consistent with the Constitution and, in any event, no more than three. The purpose and dynamic of the Bill is to restrict the Government’s latitude,-----
-----remove its discretion to the greatest extent possible and, through these statutory provisions, corner it into accepting the proposals of the commission in the form of a shortlisted candidate.
I must express my deep disappointment that these amendments are not being accepted because it betokens a concerted onslaught on the true constitutional position. The true constitutional position is that the Government alone makes these decisions. It may take advice from an expert body established by the Oireachtas but it cannot be corralled into a corner such that it must accept the advice of an institution established by legislation. If that is the true constitutional position, why is there such a reluctance to accept it and to give the Government some means of getting around the circumstances which could quite easily crop up in the application of this legislation? If the Government is not happy with any of three nominees shortlisted for a vacancy as an ordinary member of the Supreme Court, how could it be wrong for it to make inquiries regarding other people it believes would be preferable? The suggestion that the Bill provides that the Government could somehow ask the commission to reconsider its shortlist is simply not accurate. That is not provided in the Bill and it will not be in the Act if the Bill is passed. There is no provision whereby the Government can indicate it is not happy with the three nominees and require the commission to come up other nominees.
Curiously, the reverse is provided for in the Bill. Provision is made further on in the Bill for the commission to readvertise the position in a circumstance where it can only provide one or two nominees, or cannot provide any. That gives the commission the power to declare it is not happy with the quality of the candidates. However, the Bill does not provide an equivalent power to the Government. There is something wrong there. Surely, if the Government disagrees with the shortlist it must be entitled to remedy the situation and disregard the advice with which it disagrees. That is dealt with by amendment No. 86d.
Amendment No. 86e, which I have not yet addressed, provides: "Nothing in this Act affects, limits or inhibits the function of the Attorney General under Article 30 of the Constitution to freely advise the members of the Government at a meeting thereof in relation to the suitability for appointment to any judicial office of any person whether or not such person has been recommended by the Commission to the Government in respect of any judicial appointment."
If it cannot be accepted that the amendment accords with the policy behind the legislation, I am truly worried. How could one find objectionable the statement that nothing in the Bill affects, limits or inhibits the function of the Attorney General - the adviser of the Government in legal matters and on the law - under Article 30 of the Constitution to freely advise the members of the Government at a meeting thereof in regard to the suitability for appointment to judicial office of any person whether or not such person has been recommended by the commission to the Government in respect of any judicial appointment? It is extraordinary that it is suggested that that is somehow objectionable and cannot be accepted. If it cannot be accepted, that is because the Government wishes to create a false impression that the Attorney General may not offer such advice and that the Bill would affect the right to do so. I ask the Minister to explain why he deems amendment No. 86e unacceptable.
The more I look at this legislation, the more I think of Alice in Wonderlandand Alice Through the Looking Glassbecause it is patently absurd. It envisages a situation whereby the commission has knowledge which the Government is prevented from accessing. To pile nonsense on top of nonsense, an ex officiomember of the Government, the Attorney General-----
I thank Senator McDowell for the correction. It is utterly ludicrous that a person who is not a member of the Government but is an ex officiofunctionary of the State and sits at Cabinet meetings side by side with the Taoiseach and the Minister for Foreign Affairs and Trade and so on may not provide the Cabinet with this information. I am glad I am not the Attorney General as I would find it very difficult to keep my mouth shut in such a situation. In fact, I would not be able to do so. With regard to this idea of-----
Oh, how terribly kind. I thank the Senator. Reference was made to four, five and six names on the long list. There might not be that number, however. There might be only three. There is no suggestion that there has to be four, five or six.
Three is the maximum and, therefore, there is nothing to suggest whatever that there could be four, five or six on the long list. Supposing the commission were sufficiently bloody-minded, there would be nothing in the Bill, I believe, to stop it from putting the same three names back again. The Government could ask for three names but there is nothing to say they should not be the same names again, particularly if the commission fully and strongly believes they were by far the best candidates for the job.
I may have misinterpreted what the Minister said but I understood him to say that, regardless of anything else, the Attorney General could let a prospective candidate know the position is vacant. I am not sure whether I heard him correctly. That is what he seemed to me to say. Perhaps I will check the record and see whether my recollection is right. Is it the case that the Attorney General could let a prospective candidate know? The Minister might say it is not. He has implied, with regard to the Government contacting somebody, that there seems to be a revolution. It is just gas-bagging. If the Government is allowed to contact a potential candidate, in what sense is it any more desirable for the Attorney General to do exactly the same thing, presumably on behalf of the Government?
I presume there is provision in the legislation for re-advertising. Perhaps the Minister could point out exactly where. I seem to have shadowy memories of it. I refer to where three people have already been named.
I do not have much to add to what we have being saying over recent weeks. It seems Senator McDowell is very much exercised about two matters. The first concerns maintaining the constitutional integrity of the Government’s position, which is important. I have listened carefully over a number of weeks to what the Senator has had to say and I am satisfied there is no infringement or restriction on what is a constitutional requirement of the Government to be free to make a choice. I do not see where such a restriction might be evident in the legislation.
The second point concerns the role and function of the Attorney General being a member of the commission and also sitting in, as that officeholder does, at Cabinet meetings. I have pointed out previously that the Attorney General, like other commission members, is bound by statute, or by the terms of the legislation. The role of the Attorney General, as a commission member, continues to apply in the context of the consideration by the Government of the recommended names. My advice still is that the Attorney General would not be at liberty to say a candidate who is not recommended by the commission is, in the opinion of his office, more appropriate and suitable and, therefore, a better candidate for consideration. This, however, has no implications for the exercise by the Government of its constitutional power to advise the President on appointments. At the Cabinet, the Attorney General will still have an advisory role under the Constitution. I do not see inconsistency in that. Under the Constitution, the Government can, of course, decide whether to opt for a commission recommendation. Alternatively, it can decide to accept names but perhaps not in the order recommended. I am satisfied, therefore, as to the role of the Attorney General in the process. If, like Senator McDowell, Senators continue to be concerned about the maintenance of constitutional integrity on the part of the Government to ensure it exercises free will in forwarding the name to the President, I can, if it would help to reassure them, come back with a form of wording on Report Stage, but I have built in such a provision.I reject assertions that the enactment of this Bill, leaving aside amendments Nos. 86c, 86d and 86e, will in some way unduly restrict Government in a way that conflicts with its constitutional role and function.
I would like to tease out the astonishing absurdity of this situation. The Minister has said that in a situation where the Government found the first three names unsatisfactory, it could ask for another three, and it if found those unsatisfactory, it could ask for another three and so on until the end of the list is reached.
Senator McDowell can think what he likes. I think there is a long list. Like Humpty Dumpty, what I think goes. Words mean what I mean them to mean, no more and no less. The Government could indicate it is not satisfied with the three names provided and ask the commission to produce another three and so on until the end of the list has been reached. There is nothing to prevent a speeding up this process, instead of having a slow motion revelation of the long list. I remind the House that Senator McDowell has also used the phrase "long list". It may be possible that the Senator was saying that there is no such thing as a long list, but I do remember his lips forming the words "long list".
There is another absurdity in that an unelected officer of State, namely, the Attorney General, has greater power than the Government. Surely, that is unconstitutional. I would have thought the Government should be the supreme authority in law-making and appointment-making in this country. Nobody else has that power. The Government is supposed to be the supreme authority, yet an unelected official of the State has greater knowledge and greater power than the Government. Surely, that is an anomaly that ought to be examined.
The reason I say there is no such thing as a long list is currently, the JAAB advises the Government of the people who applied, and of the people it considers suitable for an appointment. Sitting judges do not come into the equation. What is proposed under this Bill is that the only communication that the newly formed judicial appointments commission gives to the Government is, what I call, the short list. The fact that I use the term "short list" does not imply that there is somewhere a long list.
Under the Bill as currently drafted, if the Government rejects the three names sent forward to it, there is no provision for it to communicate that back to the commission and to ask it to compile a different list, by adding or subtracting somebody or coming up with three different names. There is no provision for that. I ask the Minister to confirm that I am right in saying that there is no provision for the Government to communicate to the commission that it is not satisfied with the three names put forward and asking for it to put forward other names. If I am right, the problem I am talking about is all the more obvious. In the circumstance that the Government rejects the three proffered names ranked in the order of the commission, what is the Government practically to do? Surely, it should be able to communicate, through the Attorney General or the Minister for Justice and Equality, with a person that it would like to appoint and ask if he or she is willing to take up the position. The Minister has gone so far as to say that is undesirable, but he has not said it is excluded under the Bill. Even if it were only undesirable and the policy of this Bill was to make it undesirable, we are left in the situation that, effectively, that the Government is the original submarine without a periscope in that it is told it has constitutional prerogatives and freedoms but it is given no means to ascertain how it might exercise them. I take it that I am correct that there is no provision for the Government to go back to the commission. If I am wrong, I would like to be referred to the provision in the Bill that provides that the Government could ask the commission to put forward other names because it is not satisfied with the names provided.
We are debating three amendments together and I would like now to speak to amendment No. 86e, which states:
Nothing in this Act affects, limits or inhibits the function of the Attorney General under Article 30 of the Constitution to freely advise the members of the Government at a meeting thereof in relation to the suitability for appointment to any judicial office of any person whether or not such person has been recommended by the Commission to the Government in respect of any judicial appointment.
I cannot see what is objective about this proposal. If it is objectionable, it can only be that it runs against the spirit of the Act, or the letter of the Act. It seems to me there is no earthly reason this amendment should not be accepted.
It gives the Government some basic information and advice and makes explicit provision for where it is unhappy with the commission's recommendations. That is all it is designed to do. If it is rejected, it is clear what the Government is trying to do with this legislation. It is trying to say to future Governments that they may never exercise their own constitutional prerogative and discretion, except with the greatest difficulty and playing a game of blind man's buff as to the factual situation that faces it.
I am happy that the Minister has confirmed that the Attorney General will not be able to disclose the unsuccessful candidates to the Government because I believe that would be unconstitutional but I am not happy that he is signalling that any steps taken by the Government to establish a person who has not been shortlisted to it are undesirable.I do not know why this should be the case. Persons who are eligible for a judicial appointment and who express an interest are entitled at some stage to have the Government made aware that they are constantly being rejected. As the Bill operates, or is intended to operate, the Government will never know that Mr. Justice or Ms Justice Bloggs has applied constantly for the past five years and will never see the shortlist. It will be left in the exact same position of wondering whether Mr. Justice or Ms Justice Bloggs is interested in the appointment or not. We will not know, and the Minister has crafted this legislation to ensure we never know because the only way Ms Justice or Mr. Justice Bloggs can show an interest is to apply to the commission, and the Government will not be entitled to know that fact.
I am not accusing the Minister or his officials of this, but there is a certain intellectual arrogance that this commission should know better than the Government and will probably make wiser choices than the Government as to who should be appointed. That lies at the back of this proposal. The Minister, Deputy Ross, has constantly said he wants to take the decision away from the Government and away from the hands of politicians. Surely it must be wrong, however, that an eminent member of the Judiciary could be applying for five or seven years for appointments within the Judiciary and the Government could never know that and never know that that person was being excluded from the shortlists it is receiving. This is what the Minister is deliberately putting in place, and there is no escaping this. He cannot fudge this one. What possible good is served by providing that someone who is ploughing away in the courts, doing his or her job as a judge and impressing the public never features on a shortlist?
Another feature of this legislation that worries me is that the Government will be faced with the same shortlist again and again. I ask the House to imagine the following scenario, which is within the contemplation of this legislation. If the Government receives a shortlist ordered according to the commission's preference and it goes for the commission's third preference, it is by definition saying it is not attracted to appointing No. 1 or No. 2 in preference to No. 3. If it does appoint No. 3, however, No. 1 or No. 2 may be thrown at it again and again on shortlists, and at the expense of people whom the Government might be much happier to appoint, and the Government is kept in ignorance of this fact. Let us be logical about this for a second. If the commission were to recommend three candidates, A, B and C, in the order No. 1, No. 2 and No. 3, and C were appointed, would it exclude A and B at its next sitting or when the next vacancy in judicial appointments arises? Would this be fair? Given that the Government did not seem to be interested in A and B the last time, would the commission decide not to repeat the recommendation? That is one scenario. Another is that, given that the Government went for No. 3 on the previous occasion and that, logically, the commission thought A and B were better candidates, it would short-list A and B and put it back to the Government yet again.
Sorry. The commission must put forward three unless it thinks no one else is suitable. The point I am making is that we are creating a complete curtain of ignorance behind which the Government is to operate. We are creating a situation whereby if the judicial appointments commission's first and second preference - and it alone will know this - have been overlooked in favour of its third preference, it will have to decide the next time around, given that the Government was not particularly interested in the candidates the last time, whether to just drop A and B in future or whether to stick with A and B and add D to the list and see what the Government decides. If D gets-----
C has already got the job in this scenario. If D is added to the list and is appointed, does the commission get the message that A and B are not going to get the job? Is that the way this is proposed to work? Does the message finally sink home in the office of the judicial appointments commission that A and B really are not favoured by the Government so it should not bother short-listing them any more? The Government has twice ignored them and gone for the third person on the list. Will this actually improve the quality of the Judiciary? I do not think it will.
I do not want to be prolix. The three amendments we are dealing with are efforts to create some means for the Government to operate in the circumstance in which it does not agree with and is unhappy with the shortlist and some means for the Government to know what the real situation is in the judicial appointments commission. The Government will wonder why a certain perfectly good judge has never featured in a shortlist coming to it. It will not be able to ask anyone about the matter. Let us be clear about that. That is what this Bill says. One may not ask the commission why so and so is not getting appointed because the only person who will be available to answer that question is the Attorney General, who is bound by confidentiality as to why this perfectly eminent judge just never seems to make the grade and be put on a shortlist. This is a seriously defective proposal. When discussing a later amendment we will come to the whole business of whether people who never make it, first, will really be told they are not making it and, second, will be given what the Minister referred to, which I do not think is provided anywhere in the Bill, that is, feedback as to why they did make it, yet the Attorney General will not be given the right to tell the Government the feedback on such a person. I do not accept any of this. It is all deeply misconceived and will just produce a worse Judiciary.
Finally, Senator Norris thought I was a bit elitist in saying this is not just a job. One member of the Judiciary actually said it is only a job, and that member of the Judiciary was politely corrected by the Court of Appeal. It is a constitutional office. This is not just filling a job-----
There is job of work to be done, but it is more than that. It is a constitutional office, and one cannot just apply ordinary employment criteria to it because of this. One cannot ask the Government to regard it as equivalent to the appointment of someone as manager of Aer Lingus or something like that.It is not like that. One cannot say that there should be a level playing pitch or there should be transparency. One cannot say that we can farm out a preliminary evaluation of these people to experts. That is not possible in the case of a constitutional law, nor is it desirable, and it is going to produce worse judges.
That is what I have to say about these amendments and I will not delay the House any further. I am deeply disappointed, at one level, that the Minister will not accept these amendments but I am encouraged, at another level, because it shows that what is happening is an unconstitutional onslaught on the Executive's function.
I am fully in favour of elitism because elite simply means the best. Why on earth should we not have the best? I want the best in the Judiciary and in government. We have the best in the Trinity constituency but I cannot speak for everybody else. I have nothing whatsoever against the elite. There is a popular, or populist, political correctness whereby somebody cannot say they are in favour of an elite. I have no problem with a dustman being Taoiseach if he shows the qualities for being Taoiseach, but if he does not, and he is just an ordinary gobdaw, why would I want him as Taoiseach of the country? Of course we should have elite and the best people in the top jobs. I am strongly in favour of the elite.
I do not wish to contribute further to what has been a rather circular argument for a number of weeks but I want to acknowledge the importance of the points raised by Senator McDowell, with particular reference to the constitutionality or otherwise of this part of the Bill. I again point to section 40(3) which specifically states that nothing in the section shall be construed as limiting the advice the Government may give to the President on the appointment by the President, under Article 35 of the Constitution, of somebody to the position of judge. That is sacrosanct throughout this Bill. Of course, I would be unwilling to accept any aspect of the Bill that might give rise even to uncertainty in that regard, and I have listened very carefully to the points raised by Senator McDowell and I welcome the points he raises. I wish to reassure him that, ultimately, the discretion on the part of the Government is uninhibited by this Bill and that is at is should be.
The Government can accept a recommendation and convey that to the Head of State or it can be at liberty to reject any or all of the names.
I note the point raised by Senator McDowell as to what happens in the event of all the names being rejected. It will then be a matter for the commission to take stock and seek further expressions of interest, if that is what it wishes to do. The commission will, in essence, be independent of Government. I do not want to build in something at this stage which will have the effect of potentially undermining the three-name recommendation. It will only be in exceptional circumstances that the recommendation of the commission will not be accepted by Government and I point to the history of the Judicial Appointments Advisory Board, JAAB, in that regard. I cannot think of any case where Government decided to ignore, in its entirety, the recommended list of names from the JAAB.
Of course, I acknowledge the expertise of Senator McDowell, as a former Attorney General, but I am speaking as a Member of Parliament of many years' standing, a member of Government for a number of years and a Minister for Justice and Equality in recent times. I do not think that there is evidence to show that, over the years, Government has acted in that manner. While, of course, the constitutional prerogative of Government is retained in its entirety, I would expect that serious consideration would be given to the recommended names in accordance with the law. This is where I differ from Senator McDowell and I see a deep-seated hostility and antipathy from him towards a commission that has a non-legal involvement. Senator McDowell adverted to a situation whereby a judicial wizard will be left languishing on the Bench-----
-----for many years, ignored by the commission, and that this would amount to a gross dereliction of duty on the part of the commission for failing to recommend this legal wizard in position number one. Quite frankly, I do not foresee circumstances under which that will arise because I again point out the changes that were made in the Bill after the Dáil debate to the effect that the presidents of the court will be sitting on the commission. These are the people best placed to recognise a legal whizz-kid among them and ensure that their influence is brought to bear in the preparation of the list for Government, which is what the commission is all about. I reject the notion that, because of the composition of this commission, talent of an extraordinary type can be blackballed by the non-legal members of the commission. I fail to see how that could happen, having regard to the composition of the commission, including such eminent legal experts as the presidents of the court. We are being treated to a red herring. That said, I take very seriously the earlier points raised in respect of the constitutionality of the legislation and the maintenance and preservation of the discretion for Government to recommend for appointment somebody from the middle of the list, the top of the list, number three on the list, or from outside the list if it so chooses. That will arise only in the most exceptional of circumstances and I point to the operation of the Judicial Appointments Advisory Board for the past 20 years to support that.
The lay majority of the commission is not the determining factor in my mind. I would still have this objection if there were 100 judges and no lay people on the commission. I do not believe it is the function of the Judiciary to tell the Government who is best and who is not for any position. The Constitution vests that function in the Executive, the members of Government, and nobody else. I fear excessive influence of the Judiciary in formulating shortlists as much as I fear the influence of strangers from the outside if the Government is to be coerced, in effect, to choose a candidate from that shortlist.It does not matter to me who does the choosing. The principle is the same: the Executive under our Constitution is given this function and it cannot be taken away from it.
I am not kowtowing to the members of the Judiciary or licking them in any shape or form. I would worry if their influence was increased significantly in this respect. I do not think they should choose themselves or that they should be a self-selecting elite, and I want to make that very clear. I would be much happier to have some practising lawyers introduced in greater numbers than-----
A few of them, a tiny minority of the commission. In any event, that is my personal view. Just so the Minister is not under any illusion, I am not in favour of a self-perpetuating judicial elite and I would not be happy if the Minister reduced the number of lay people to three or two and said that was okay. It is the rest of this Bill that I am deeply unhappy with from a constitutional perspective in that the Executive's function is being effectively transferred to a judicial appointments commission, and even though the fig-leaf to which the Minister refers is left there, every possible impediment is put before the Executive in exercising its independent choice by making it almost impossible to find out who is available, who has applied and all of that.
The Minister said he hopes it will only be in exceptional circumstances that the recommendation of the commission in regard to judicial appointments will not be followed. What the Minister forgot, when he challenged us to say from past experience what the problem was, is that it has never, ever been the case that the Executive's right to appoint or to recommend for appointment a member of the Judiciary has been in any shape or form the subject of any participation by JAAB. That is the point the Minister is forgetting. This is the first time the members of the Judiciary themselves are being told they must apply to this commission. In the past the Government could say there is a vacancy in the Supreme Court and it would like to look first to the Judiciary to fill that position, it is not involving JAAB in the process at all and does not propose to do so, and it proposes to nominate a judge of the Court of Appeal or the High Court to fill that vacancy. That is the position that exists at the moment and it has never been the occasion of cronyism.
The Supreme Court has served this country extremely well. On a point where I have some experience, although I do not profess to be infallible on the matter, the Government of the day, in deciding who it wants to be on the Supreme Court, is making a policy decision about the future direction of that court. One cannot simply say that there is a person who is brilliant on trademark law or international law and, on some kind of calculus that might or might not impress other judges, the judicial appointments commission or anybody else, say that person on merit deserves to be in the Supreme Court. One cannot do that. One cannot say someone is a brilliant lawyer with a brilliant mind that can solve the most incredible legal conundrums with great facility, and that is the person who on merit should be on the Supreme Court. If the Government comes to the view that Ms Justice so-and-so or Mr. Justice so-and-so is a brainbox, and has been there for donkey's years, the Government still has to decide whether that person's appointment to the Supreme Court directs the Supreme Court in the policy direction of that Government with regard to how the Supreme Court should look. It is a political decision with small "p" and with no party attached to it, as it has been in the past. I participated in that and I believe the Minister has participated in that. There is no question of saying one is appointing this person simply because he or she is intellectually capable or objectively fits criteria which are set out in a statute. It is the Executive's function to make these decisions and to apply its political judgment with a very small "p" to such appointments.
Nobody should be under any illusion but that that is the case. That is the right of the Executive and is why the Constitution gives this function to the Executive. Therefore, when the Minister says that I am worried about a lay majority, he is wrong. I am not worried about the lay majority on this occasion; I am worried about saying to sitting members of the High Court and Court of Appeal that, except in exceptional circumstances, in order to be appointed to the Supreme Court, they must be short-listed by some group outside Government. That is my objection. It is a rooted, radical objection to what is happening here. I believe the Government is entitled to say, for example, there are 12 people who it considers likely candidates for the vacancy in the Supreme Court which has just emerged, but its judgment is that Ms Justice so-and-so or Mr. Justice so-and-so is the person it wants to appoint. It does not need them to start filling out forms describing where they went to school or to prove they are representative of society as a whole. It does not care about his or her gender, in particular. It has different criteria, for example, it is concerned that the court is taking a conservative or a liberal direction.
It was widely thought, and I think I am on safe ground on this, that some decades ago the contenders for the position of Chief Justice were too activist as members of the Supreme Court and it was generally thought that William O'Brien Fitzgerald was selected to move the Supreme Court in a slightly more conservative direction. That was what was thought at the time. There were eminent jurists on the Supreme Court and the Government at that time, apparently, believed that it wanted a more conservative direction to the Supreme Court, and that was its choice. It has nothing whatsoever to do with the judicial appointments commission, which has no right to tell the Government, "By the way, it should be Mr. Justice Bloggs or Ms Justice Bloggs."
He was more conservative than some of the people who were seen as the front runners, very definitely. I say that with the greatest of respect to him and to his memory, but I know, as I have spoken to some of the people in government at the time, he was selected because of a concern that the Supreme Court was becoming hyperactive. Whether that was a justified concern or not is a totally different matter, but that was the Government's choice and it was nothing to do with some other group of people.
When looking at a decision of this kind, how can this commission evaluate whether the Government should appoint a liberal or a conservative to the Supreme Court? If it comes up with three liberals, say, or three people of one social outlook and the Government says it is not keen on that and would like to rebalance the Supreme Court in favour of a different approach, that is the Government's prerogative alone.It has nothing to do with whether there is a lay majority on the commission. It would apply equally if it was a self-selecting judicial college and I would have exactly the same objection. The real question is who the Constitution states makes the choice and whether this Bill now circumscribes the way the choice is made.
The Minister states that it is undesirable for the Government to make approaches to anyone. From where he does he get that idea? What is undesirable about a Government making an approach to somebody and asking if he or she is interested in being appointed to a vacancy in the Supreme Court? There is nothing undesirable about that but this is the result of the convoluted thought process at which we have arrived today. It has gone on for a long time and it has made perfect sense because it is a necessary outworking of the Government's discretion to find out whether that discretion can reasonably be exercised in one direction or another, or towards one candidate or another. For the Minister to state that it is undesirable for the Attorney General or the Minister for Justice and Equality to ask an individual, on behalf of the Government, whether he or she is interested in being appointed is absolutely misconceived. It is totally desirable for a Government to be able to that if it so desires.
I am not suggesting anything radical but this option is open to the Government; it has been frequently exercised and has led to good, rather than bad, appointments. If the Government's prerogative is preserved, as the Minister insists, it must have the necessary liberty to make inquiries and approaches in order to discover who is interested and what is going on in the judicial appointments commission, rather than be required to take its three recommendations on faith and without any knowledge as to how they were arrived at or who may have been overlooked for the shortlist.
This has nothing to do with the lay majority and I would be just as horrified if the Minister proposed that it should be an entirely judicial body. I would be just as horrified if the Government was left equally tethered by the legislation. This legislation constrains the Government, for the first time, in the context of whom it can appoint to vacancies in the Court of Appeal and the Supreme Court when it wants to appoint a judge. If it wants to appoint a serving judge, it should be free to do so. It should be free to know whether particular people were seeking that appointment and whether they would accept it. There is no logical reason to justify the rejection of the amendments that have been tabled other than on the basis of hostility to the Government doing it. It is fanciful for the Minister to state that it would only be in exceptional circumstances that one of three people, nominated by the judicial appointments commission, would not be favoured by the Government for appointment to the Supreme Court. There could be many serving members of the bench whom the Government would want but who are not on any list.
I am glad that Senator McDowell has clarified matters because the Minister appears to have suggested that the Senator was in favour of some kind of Masonic elite within the legal profession. Senator McDowell has made it clear that this is not the case and it shows how risky it is for anyone, the Minister included, to try to characterise the mindset of a speaker without sufficient evidence.
The Minister also spoke about exceptional circumstances and I completely agree with him on this point. He is right but it is the function of Seanad Éireann to tease out all the hypothetical situations that are possible and to close loopholes. That is precisely what we are doing. The exceptional circumstances to which we referred can be held to exist in certain situations.
I may be misinterpreting the Minister but he never replies when I ask him if I am. Either he thinks I misinterpret him all the time or I am completely right and it is better for him to keep shtum. I understood the Minister to say that the commission could seek further expressions of interest if the three original nominees were rejected by Government.
I thank "Minister McDowell" for his reply. I am most grateful to him. This is, however, a sub-point and it does not matter.
In response to Senator McDowell, the Minister referred to section 40(3), which states that nothing in subsection (2) shall be construed as limiting the advice the Government may give to the President regarding the appointment by the President of a person to be a judge under Article 35 of the Constitution . I presume that refers, specifically and directly, only to subsection (2) but at the same time there is a very clear implication as a matter of policy that limiting the advice the Government may give to the President is a bad thing to do and should not be contemplated. The Government has included subsection (3) in order to ensure that the advice it can give the President is not limited. It can be taken as a general principle that the Government believes the advice it can give should not be limited. Then, however, it goes on to clearly limit it. It will limit the knowledge the Government has and the knock-on effect of this will be to automatically limit the advice it gives to the President. It is violating the principle enunciated in section 40(3) that limiting advice is a bad idea and should be stopped. That is why subsection (3) is there. This incoherent Bill flies in the face of its own principles and effectively says "What about it?" I do not understand this and I shall certainly vote against it.
Ultimately, the Government can, in the circumstances, recommend whom it wants for appointment whom it wants. It could be somebody from a list or an individual who is not on a list. It can also send a list back to the commission.
I fundamentally disagree with Senator McDowell, who wishes to perpetuate the tap-on-the-shoulder system, which is far from transparent. It has given rise to the need for a legislative change in other jurisdictions and was behind this reform process in 2014, when a consultation process was undertaken. We are moving to regularise the system relating to the appointment of judges. It happens to be a fundamental tenet of this new Bill, which Senator McDowell readily accepts, that we are bringing sitting judges of the courts into the process.They will be required, for the first time, to make an application to enter into the process and to engage with an independent appointments commission. That is entirely reasonable and adds to the type of transparency that is necessary in a modern public service. It also accords with what is happening in other jurisdictions, particularly the common law jurisdictions and most especially, as I have said on several occasions, in Scotland, England and Wales where we have not seen the type of trenchant opposition to change that has been spearheaded here for the past number of months by Senator McDowell. He appears to wish to hold on to a system which is far less transparent than under the current proposals, where nobody really knows what happens. As Senator McDowell himself says, drawing on his own experience, there is much tapping on the shoulder and requesting people to make certain overtures to the Attorney General or to Government, or both, in a way that could well be described as canvassing. It is time we moved on to a more modern arrangement for the appointment of judges.
As I said earlier, I do not subscribe to the view that the commission will be anti-lawyer or anti-judge in the manner in which Senator McDowell fears in the context of non-legal representation on the commission. I do not see it like that. These will be people of considerable expertise who will need to accord with the various terms and conditions that we have placed in aspects of this legislation. I am unwilling, therefore, to accept amendments Nos. 86c, 86d and 86e because I do not wish to interfere in any way with the central tenet of the reformist nature of this legislation.
He used the word "regularise" as if to say that what has happened in the past is somehow irregular and I object to that proposition. There is nothing regularising about this Bill. In my view, it is this Bill which is irregular. The Minister is not regularising the appointment of judges by putting this system in place.
The Minister went on to claim that this will be far more transparent. How will it be transparent? How will anybody who has been rejected know why he or she was rejected? How will the Government know why people who appear to be eligible are not getting shortlisted? How can that happen if the Attorney General cannot even comment on who has failed to be shortlisted on a number of occasions? It simply is not transparent. There is nothing transparent about it at all. In fact, it is all circumscribed with confidentiality and criminal sanctions for telling us the reasons behind what went on.
It is now being suggested that sitting judges should go through this procedure in every case but has anybody sought the views of the Judiciary on that? I have not seen it expressed that sitting judges should be vetted by a body for appointment to the Supreme Court. If judges have expressed that view then all I can say is that the Constitution says differently.
I will withdraw the word "regularise" if it implies an irregularity regarding the current method. I do not mean that it is irregular but it is informal. I will substitute "formalise" for "regularise" if Senator McDowell is of the view that I am in some way disparaging of the current methods. It is important to formalise the process and that is what we are doing here. I do not intend to accept these amendments because they go against the spirit of formalising the new structures. That is important. It is also appropriate that sitting members of the Judiciary are encompassed under the new legislation precisely because the nature of the informality could well give rise to a perception that matters are less than transparent.
At an earlier stage I made reference to the fact that there was a large measure of consultation and that judges themselves participated in the process. I would be happy to drop a note to Senator McDowell on that. I do not have the immediate reference here but not only was there consultation but a submission was received, the detail of which I would be happy to convey to the Senator.
The Minister has twice implied that if the three names sent forward are not accepted by Government somehow the thing goes back over the net into the commission's court. However, there is not one sentence, clause or word in this Bill, as I read it, which provides for that situation. There is not and the reason for that, if the Minister thinks about it, is that it would be remarkable if the commission was told to have another go and that the Government was not very keen on the first three names. The implication of that-----
-----is that the Government is going to start playing tennis with the commission. It is going to send the ball back over the net and tell it to have another go to see if it can come up with a better shortlist. I do not see that in the Bill.
I wish to remind Members that we are discussing amendments Nos. 86c, 86d, and 86e together. If Members wish to speak on amendments Nos. 86d and 86e and they have not done so already, this is their last chance. Otherwise, I will put the question if nobody has anything further to say.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Maura Hopkins, Anthony Lawlor, Pádraig MacLochlainn, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, Joe O'Reilly, James Reilly, Neale Richmond, Fintan Warfield.
I move amendment No. 86d:
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 27 and 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.”.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Maura Hopkins, Anthony Lawlor, Pádraig MacLochlainn, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, Joe O'Reilly, James Reilly, Neale Richmond, Fintan Warfield.