Thursday, 4 April 2019
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
At the moment the section reads:
In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the Minister or, in the case of section 44 the Government in accordance with the provisions of this Act.
The amendment seeks to delete the word "firstly" in order to leave the Government free to consider other persons for appointment first if it wishes to do so.
I will be very brief because this is all in line with Senator McDowell's consistent approach, which is to ensure that the Government has the widest possible frame of reference in making appointments. I congratulate the Minister on the appointments that were made recently to the Supreme Court and other courts. It was a very good move and it shows very clearly that the existing situation is operating reasonably well. I strongly support Senator McDowell's in what he is attempting to do here.
Ivana Bacik, Victor Boyhan, Rose Conway Walsh, Gerard Craughwell, Mark Daly, Aidan Davitt, Maire Devine, Paul Gavan, Kevin Humphreys, Pádraig MacLochlainn, Michael McDowell, David Norris, Niall Ó Donnghaile, Diarmuid Wilson.
Colm Burke, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Maura Hopkins, Anthony Lawlor, Gabrielle McFadden, Catherine Noone, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, James Reilly, Neale Richmond.
Colm Burke, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Maura Hopkins, Anthony Lawlor, Gabrielle McFadden, Catherine Noone, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Neale Richmond, Fintan Warfield.
On a point of order, I went to the anteroom to get the list of amendments but the one that is there is dated 3 July 2018. That is ridiculous. We are now expected to work off a series of different sheets and groupings of amendments and all of the rest of it-----
With all due respect to Senator Norris, up-to-date amendment lists were circulated yesterday. The Senator is referring to the original list of amendments that was issued when the Bill was published. All of the additional amendments have been circulated since then.
I move amendment No. 92a:
In page 31, line 28, after “Minister” to insert the following:“at any time in respect of the type of judicial appointment in respect of which the Government is advising”.
I wish to outline the purpose of this amendment. The House will appreciate that section 46 currently reads:
In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the Minister or, in the case of section 44 the Government in accordance with the provisions of this Act.
This amendment proposes to insert the words "at any time in respect of the type of judicial appointment in respect of which the Government is advising". Let us say, for example, that on a particular day the Government has a vacancy to fill in the High Court, the Court of Appeal or the Supreme Court. If it receives a list of three people and another vacancy arises shortly thereafter in the same court, as frequently occurs, then those people who were recommended will remain so. If judges A, B and C are on the shortlist of three for a vacancy in the Court of Appeal and another vacancy arises in that court, then judges A, B and C shall stand recommended, even if a shortlist is submitted with different names on it. This means that those on a shortlist will not fall off the edge simply because a different shortlist is drawn up by the appointments commission. Let us say that a person has applied and has been told that he or she has been recommended for appointment to the Court of Appeal and is on a shortlist. Then, within two months, another vacancy arises in the same court. In that context, it seems ridiculous to ask that a person who was recommended two months previously should resubmit an application and go through all of the hoops again in order to be considered first by the Government before anybody else. It seems quite absurd that we would force people to keep reapplying for jobs for which they have already been recommended. The other side of this coin concerns when the Government states that it had a shortlist of three very good people it believed to be very meritorious and that while it could have appointed any of them, it has appointed one. If a different shortlist is received in respect of a vacancy that arises two months later, it might ask what happened to judge A and judge B, particularly if it believed on the first occasion that they were really good candidates it was minded to appoint. The purpose of this amendment is to ensure that once an individual is recommended, he or she will remain so and that, when the next vacancy arises, we do not impose on a judge, of the High Court, for example, the obligation to reapply, resubmit all the relevant documentation, go to another interview and be vetted a second time round if he or she has already featured on a list.
There is another aspect of this that I find puzzling. It could arise in the following circumstances. If, for example, the Judicial Appointments Commission were to have regard to gender equality on a shortlist and then decided to have regard to it on a second, it might find itself having to delete somebody from the second list in order to keep the gender balance of its shortlist right. That seems unpleasant, foolish and wasteful of resources. Let me outline what I am suggesting. This applies to individuals who are judges and those who are not. Once somebody has gone through the system, has been found suitable and has been recommended to the Government for appointment, he or she should stand recommended and not fall off the edge by reason of non-inclusion on a subsequent list. That makes sense. If we do not accept this amendment and if we require applicants to reapply and go through all the hoops every time a vacancy arises, even though they were told they were recommended in the first instance, we will seriously discourage candidates from applying. I will give an example. Where a woman senior counsel applies to be considered by the Judicial Appointments Commission, is told she is one of three whom the Government has been told is suitable and recommended for appointment, and is not appointed, it makes much more sense to have the law state she stands recommended. Where there is another vacancy, she will have gone through all the hoops, her name will have been on the shortlist and the Government will have been informed by the commission that she is suitable and recommended but the Government could get a different list without her name on it and with that of some other female senior counsel, leaving it wondering what happened to the woman recommended to it two months previously. This amendment is to make it clear that the Government should not regard the fact that a person's name has fallen off the shortlist in favour of somebody else as a reason for that person not to be considered for appointment. I would be interested to hear the Minister's thoughts on that matter.
Section 46, which is quite short, should be withdrawn by the Government and reworked because it is a grammatical nonsense. It states:
In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the Minister or, in the case of section 44, the Government in accordance with the provisions of this Act.
Grammatically, there are two possible interpretations. First, it means that the Government shall first consider, in the case of section 44, the Government. What does that mean? It means absolutely nothing. It is a total nonsense. Alternatively, something is being left out. It should state that, in the case of section 44, the Government, in accordance with the provisions of this Act, shall do something. It is an utter muddle and means nothing. It is rendered redundant by the grammatical inaccuracy of the way in which it is expressed.
It seems Senator Norris's point is technically correct and that there are commas missing in the phrase "or, in the case of section 44, the Government in accordance with the provisions of this Act". It would make sense if they were inserted.
In that case, I will not be rushed. I will talk with very laconic laxity. I will speed up again. As I understand it, Senator McDowell's argument is that if the Government gets a list of three candidates for a vacancy and another vacancy arises, the individuals on the original list should stay recommended. I presume one of them will be removed because he or she will have been appointed.
So there will be one gap. It seems that if the criteria are satisfied in the first instance, they should remain so. Therefore, it is a redundant exercise to put the candidates through this nonsense again. It might suggest to the onlooker that a judge has been dropped because, in the intervening two months or whatever, he has engaged in some kind of nefarious activity that is regarded as reprehensible and that has excluded him from consideration. I would be very interested in hearing the Minister’s response and discovering whether he can clear up the grammatical confusion that is quite clearly evident. It could be cured by the inclusion of commas and the word "to".
I am delighted that there are Members around here with the grammatical expertise to correct this section. In speaking about the Bill and in considering how we were going to deal with the appointments process, we have at all times been concerned about possible reputational damage to individuals. We have been anxious to have a robust process and, as such, we would expect a certain amount of time and effort to be devoted to preparing an application form and providing all the necessary supporting evidence, etc. If after the appointment of one individual on the list of three, another vacancy arises, do we honestly expect the same individuals to undergo exactly the same process again? We have all been in circumstances where we were unsuccessful in applying for a position and then started the application process again when a new position opened up. The first thing one does is look at the documentation one submitted for the first vacancy and one queries whether one did this or that correctly or whether one should change this or that.In most public appointments, if one makes it to the shortlist, one remains on the shortlist for a certain period of time, at least. Panels and the like are created. Amendment No. 92a tabled by my colleague, Senator McDowell, makes perfect sense. We should not be asking people to resubmit applications. They were good enough the first time around and there is no reason why we should be questioning or second-guessing the decision made the first time around. I am very much in favour of the amendment.
Senator McDowell's amendment is a sensible one and it addresses some of the issues in section 46. All Members would bow to Senator Norris's expertise in grammar, but even before he spoke, the grammar of section 46 had been bothering me. We have already voted on Senator McDowell's amendment No. 91h, which would have deleted the word "firstly" which, grammatically, is not used correctly in the section. There are more serious problems with the section than its grammar. Clearly, there is, at least, a requirement for a further comma after "section 44".
Inserting the word "to" would make the section more coherent. Amendment No. 92 tabled by the Labour Party on which Members have just voted would have dealt with a serious substantive issue with section 46, namely, that it does not currently require any ranking by the commission. As the Minister is well aware, the issue of ranking in the order of the commission's preference has been pointed out as a flaw in the current Judicial Appointments Advisory Board, JAAB, process, as it does not rank in order of priority those persons whose names it puts forward. It is unfortunate that a ranking requirement will not be included in section 46, given that the Bill is all about reform of the Judiciary. The reality is that the meaning of the section is less than clear. As well as the grammatical issue, there is the issue raised by Senator McDowell that he seeks to address through amendment No. 92a. The section does not make clear at what point the names should be recommended to the Minister. The amendment would clarify the section and make its meaning more apparent. However, the section also requires further amendment.
I will not accept the amendment. It runs counter to arrangements already set in the Bill and to which the House has agreed. I refer in particular to section 40. If the amendment were accepted, it would cause serious difficulty to the entire ranking arrangements. I do not agree with Senator Craughwell that once recommended, always recommended. I do not accept that. I am not sure from where he got that understanding but I do not accept it and I do not consider it feasible. Each vacancy shall be dealt with on its own merits in accordance with the provisions. It would be unfair for a person who was unsuccessful on one occasion to receive more favourable consideration on a second, third or subsequent occasion. Each vacancy should be dealt with by way of recommendation on its own merit.
I thank the Minister. I am very grateful to him because the final phrase is rendered meaningless and would, therefore, have no impact. If the Government wishes it to have impact, it will have to look to the grammar of the section.
I am deeply disappointed by the almost knee-jerk reaction of the Minister to the amendment. What the Minister is proposing will massively load up the workload of the commission with repetitious applications. I was trying to put myself in the position of a person who had been recommended. If I had been recommended on a shortlist and subsequently read in Iris Oifigiúilthat Senator Norris had got the job rather than I and then a month later the process recommenced, I would say to myself, "Oh my God, do I have to go back, fill out all these forms again, go through the interview process again and be evaluated for inclusion on the shortlist against two other candidates who the commission thinks are also very good?" What is the purpose of this? Suppose that in February the commission recommends a particular person for appointment and in April it advertises a post and different candidates put their names forward and are interviewed. In that case, presumably, the same people would be interviewed a second time and a different shortlist would be sent to the Government.
It is the same vacancy in the sense that it is appointment to be a judge of the High Court. A vacancy has arisen and been filled and somebody who was short-listed and recommended the Government will be required to reapply when the next vacancy arises.
Amendment No. 92 tabled by Senator Bacik was rejected and, as such, there is no particular order of recommendation. The Government will not know whether a person was the first or last choice of the commission. The Government will be confronted with a situation whereby, two months later, different names appear before it and it does not know why. It would be a crime for the Attorney General to disclose why a person has been removed from a shortlist. He will not be allowed to inform the Government that a particular judge who was recommended two months previously has fallen off the list due to lack of interest or because one or more better candidates appeared and that judge is no longer in the top three. That whole idea is a little bit repugnant. I presume this commission is a serious body that will do serious work. If a person is recommended, the commission is saying that, not merely is he or she suitable, but that, of all the people who applied, it has selected him or her for inclusion on a shortlist. Senator Bacik's amendment would have required that the commission to set out the order of its recommendations. As it was defeated, effectively, the Government must play blind man's buff and wonder which candidate the commission favoured and whether one of them was spectacularly better than the other two. That information is not given to the Government under this system, but a person can suddenly disappear off the shortlist and the Government is left wondering why. That does not make sense. For each vacancy that arises, the commission is supposed to nominate three persons who are suitable and whom it can recommend to the Government. In a situation whereby one person is, in the view of the commission, the best of the candidates and the other two are also-rans who suffice to fill out the list of three, the Government is not informed of that, which is interesting.If a name disappears off the list, the Government is left completely in the dark as to why someone who was recommended two months ago is no longer being recommended. There is no channel of communication to establish for the Government's information why someone who seemed to be one of the top three applicants for the job is no longer in the top three.
I cannot see any harm being done by this. What harm could the amendment in my name actually bring about? It could mean that the Government would realise there were three applicants for a given position two months ago and maybe someone better has come along in the view of the commission. It may be that is the explanation or perhaps not. Anyway, the Government will not be told. It is a little like the election of a Pope.
It is difficult to know exactly how the system works, but the Government makes the appointment and does not know why people are or are not on the shortlist or why people have been removed from the shortlist. It seems to me it would be far fairer if, in January or February Mr. A or Ms A has been recommended to the Government but then the Government gets a different shortlist in March or April, it should be able to inquire about Mr. A or Ms A who was recommended in January. The Government should be able to consider those people and ask whether they have fallen off the edge because someone is better. Is that the inference we are to draw? Is the Government to be left totally in the dark over why the list has changed and why a given person has gone off it?
The other point is that were a barrister or solicitor to be short-listed by way of recommendation to the Government for appointment to one of the superior courts, it would be a tremendous accolade of itself. Then, to be told two months after being recommended that he or she has to start again, is to be compared with other people and may not in fact make it second time around is bad practice. I wonder how many times this could arise. Practising judges do not have hours and hours to attend interviews, fill out forms and keep making applications. What about a judge of the High Court who – I will not use the word "ambitious" – is willing to serve on either the Court of Appeal or the Supreme Court? How many times does that judge have to apply? If on some occasions that person is told he or she is on the shortlist but at other times is told he or she is not, what is the judge left to wonder about himself or herself? It would be far better to say that if a candidate makes the grade and has been recommended, that candidate stands recommended unless there is some reason why he or she should not stand recommended. I appeal to the Minister to reconsider his view on this. It makes this a cumbersome procedure. Will the Minister inform the House of the view his Department takes on the length of a vacancy in the High Court that arises by reason of resignation or death? How long would that process take from beginning to end under this new system? Does the Minister envisage it would take two, three or six months? How long does the Minister believe the commission will take to go through all the interviews and processes in place? One problem with this new quango that we are creating in this statute is that it is probably going to delay judicial appointments significantly.
As Senator Norris said earlier, some good appointments have been made recently without any of this process of individual candidates having to be interviewed, short-listed and so on. The system is working fine. Since we were last debating this Bill, I was looking at American television in the form of CNN and a phrase used in a completely different context struck me, as I thought it apt for this Bill. The phrase was that this was "a solution looking for a problem". There is no problem. We can make perfectly good appointments without all of this. No newspaper is asking why a given person was appointed. No one is saying there is patronage or that, to use the language of the Minister for Transport, Tourism and Sport, Deputy Ross, this is cronyism. No one says that.
No one says any of that about the appointments being made at the moment. Yet, the Minister is creating a highly complex system that will require people to submit and resubmit applications. It will even require people who have gone through the whole process and been winnowed down and told that they are among the top three applicants for a given position, only to be told two months later that they have to start again. They will have to go down to the bottom of the hill, like Sisyphus, to roll the rock up the hill again.
This is utterly wasteful and pointless. I have made the case about sitting judges, although the Minister will not accept it. Since all High Court judges are ex officiocapable of functioning on the Court of Appeal and in the Supreme Court as ordinary judges, they have already passed a threshold of suitability. This idea of requiring judges to submit applications at all is wholly wrong. If we are to have a system that requires judges to submit applications to this commission and to be evaluated by the commission for appointments to other positions in the courts, then it seems to me those who are short-listed should at least be given a bye and stand recommended until the Government decides otherwise. I cannot see why the Government should effectively be asked to ignore the last recommendation when, within a short period, a second vacancy in the same court comes along. That is wrong.
I wish to come back on that point. One of the things I have always been concerned about is that eminent people would shy away from the application process because of some of the things in this Bill. I agree that someone who has made it to the shortlist should not have to compete again on the same question. Senator McDowell has discussed the position of a candidate who is short-listed for an appointment in February and how, if another vacancy arises in March, he or she would have to go through the whole process again as a busy judge. That simply does not seem to make any sense. More important, let us suppose a candidate was to do it a second time and make it to the shortlist a second time but is not appointed. What is the likelihood that the candidate would do it on the third, fourth, fifth or sixth occasion? Are we going to lose eminent people because they decide that they will not subject themselves to a system whereby they can be short-listed and then fall off the end of the cliff? Let us suppose I am a High Court judge and I have been short-listed with two eminent High Court judges for a Supreme Court position and one of them gets the Supreme Court position. Then let us suppose another vacancy opens up but this time only three senior counsel are short-listed. I believe there is an inherent unfairness in asking people to go through the process of application after application. I believe the amendment we have put down is perfectly reasonable and solves the problem.I think the Minister's quick-fire reaction was shooting from the hip on this one. It is not uncommon.
-----not the interview room of this quango we are proposing to appoint.
If we substitute the word "judge" with "teacher" of, say, English or geography, the process is that a vacancy arises, it is advertised, people apply, they are shortlisted under the criteria, they are interviewed and then a panel is formed for a period of time. It goes back to what Senator Bacik alluded to in her amendment. On that panel, a number of suitably qualified people are adjudged by the interviewers to be worthy of appointment are put in order of choice at positions one, two, three and on to ten or 11. As vacancies arise within a set period of time, be that six months, eight months or 12 months, they are taken in order of merit from that panel. After the set period of time, the panel ceases to exist and a new panel is formed.
What is wrong with that in regard to the appointment of judges? What is not transparent about that? It makes eminent sense to me and it is logical. The only reason I can think of not to do that is if somebody wants somebody else appointed who may not have got through the process, and they keep advertising until that person gets through. That is the logic, as far as I can see it. The most transparent way of dealing with this is to advertise, shortlist, interview and form a panel for a set period of time. If that set period of time is three months, six months, nine months or 12 months, so be it, but it is more transparent if we do it that way.
It has been such an interesting afternoon. I would be tempted to call a quorum but since the Government has reduced it to six and there are five Members in the House, it is bit of a redundant exercise. I am assured that hundreds of thousands of people are watching this avidly online.
I am still firmly in support of Senator McDowell. However, I think the Minister made a number of shrewd points. With regard to the question of whether it is the same vacancy or a new vacancy, it is both, in a sense. It is the same vacancy in the sense that it is a vacancy on the High Court or Supreme Court, but it presents a new opportunity, if perhaps not quite a new vacancy. I also wonder what happens when a new person emerges and applies, as they have to be considered also.
I suggest there is a slight element of posturing in the argument that it is frightfully onerous for judges to send in their recommendations or forms. They can send in the same forms they sent in the first time, so it is not going to kill them. I am not terribly-----
It could. There are circumstances where, for example, there could be a change of Government and the incoming Government might have different ideas about the list. That is a point that needs to be considered. However, I will be firmly supporting Senator McDowell when, as I confidently expect, he calls for a vote.
The critiques that have been made during the course of this debate in respect of the wording of section 46 illustrate a point I made earlier in the debate about the unwieldy nature of the processes and procedures provided for under what should be a reforming Bill. Given the Bill purports to reform and streamline processes for judicial appointment, it is unfortunate that instead of providing for an easily understandable, coherent and logical scheme, what we are seeing instead is a somewhat cumbersome procedure that lacks the sort of clarity and transparency that could have been provided for.
Our amendment No. 92 about ranking, on which we just called a vote, should have been a crucial part of the reform of the process and it is unfortunate it was not. The issues around the language in section 46, which this and other amendments have sought to address, again highlight this difficulty with the processes in the legislation.
It does. I must say it also lacks the comma and the word “to”, which is what I think Senator Norris was going to say. Again, it is illustrative of the difficulties generally with the Bill that it is not, in fact, clarifying or more transparent. Instead, it is creating this unwieldy set of processes that are hard to follow. It is hard to follow the consistency or coherence of the processes.
Senator McDowell is right that if it is being read from the perspective of somebody who is perhaps seeking to apply, or somebody who is seeking to understand the procedures from the outside, it makes for difficult reading currently.
All I will say in response is this. If the person stays recommended, it does not matter if there is a change of Government. The new Government will get a new or different shortlist, so no harm is done if a person is recommended.
No. My point is that if every time there is a vacancy, there is a shortlist, which is what the Minister is insisting on, all my amendment is saying is that somebody who was previously, a short period before, recommended for the job stays recommended, and as there are three on the shortlist, there will be four or five people to look at, depending on who has been discarded. In any event, I think we have discussed it as far as we can. I ask that the matter be put to a vote.
Colm Burke, Jerry Buttimer, Maria Byrne, Martin Conway, Maire Devine, Paul Gavan, Maura Hopkins, Anthony Lawlor, Gabrielle McFadden, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Neale Richmond.
I move amendment No. 92b:
In page 31, lines 28 and 29, to delete “or, in the case of section 44 the Government in accordance with the provisions of this Act”.
Arising from what we have just voted on, it occurs to me to point out to the Minister that even if he sticks to the principle of what we have just been discussing this afternoon, there will still be occasions where it would make-----
There will be occasions where the Government will appoint a member of the High Court or Supreme Court and it will also have before it a vacancy regarding another appointment for the High Court. In those circumstances, the Minister should consider introducing some kind of system whereby the Government can make two appointments from the same shortlist. It seems pointless to have to start the whole process again. I refer to what is done at the moment with the Judicial Appointments Advisory Board. I do not see why this has to be made unbelievably complicated by requiring that the process start again every time, even if the Government itself has just created a vacancy by promoting someone to the High Court or the Court of Appeal. As things stand, that vacancy would have to be advertised instead of someone being appointed from the existing shortlist. Why would the Government not appoint a person who had recently been recommended and shortlisted to a vacancy the Government itself had just created? It would make sense to do that.
Moving on to amendment No. 92b, in the names of myself and Senators Boyhan and Craughwell, this amendment proposes to delete “or, in the case of section 44 the Government in accordance with the provisions of this Act”. If this amendment is accepted, it would have the advantage of dealing with Senator Norris's grammatical point. The Minister has told us he intends to amend section 44 but he has not told us exactly how he is going to do that. It is unfortunate that we keep making provision for section 44 recommendations when we do not know how it will function. A series of additional amendments have been proposed by Senators during the debate on this Bill and it is time the Minister came forward with his formula for section 44. We could then understand what it is he has in mind when we deal with those other sections that make reference to section 44. The Minister does not like section 44 as it is but he has not stated what he proposes to do instead. We keep on, however, dealing with sections that make reference to section 44, yet nobody in this House, that I know of, wants to keep that section in its present form. We are told that we have to look-----