Wednesday, 10 April 2019
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
I was pointing out that section 47 envisages that where a person who is a member of the commission wants to seek to be recommended to the Minister, that person must effectively step aside from the commission and not participate in its activities at all during that process. That sounds reasonable at first blush because it would be most remarkable if a would-be appointee voted on his or her own appointment. That would be strange indeed and one would imagine that there is a lot to be said for requiring the person involved to absent himself or herself from the proceedings of the commission while his or her name is under consideration. However, this brings a broader question into focus in an instance where the President of the High Court might seek appointment to be an ordinary member of the Supreme Court or an ordinary member or president of the Court of Appeal. In such a case, what is the reality of him or her stepping aside from the process while his or her colleagues, in his or her absence, consider whether he or she is suitable to be shortlisted for appointment? What would be the consequence if his or her colleagues decide he or she was not suitable?
Imagine if the President of the High Court was not on the shortlist and yet was supposed to participate in the commission thereafter, having been adjudicated on as unsuitable for recommendation to the Government, or less suitable than those who were shortlisted. The relationship between that officeholder and the rest of the commission would be severely tested by such an event. Supposing that the President of the High Court got the message that the rest of the commission did not think much of him or her, from the point of view of being appointed to the Court of Appeal or Supreme Court. That having happened, the President of the High Court is supposed to sit there quietly and adjudicate, in the company of everyone else, on other people's suitability for another vacancy in that court as if the rejection had not taken place. That is not a good idea. It is a very contrived situation.
Let us remember that we are dealing with the Attorney General and the presidents of the District Court, the Circuit Court, the High Court, the Court of Appeal and the Supreme Court, the latter being the Chief Justice. It would not apply to the Chief Justice because, presumably, he or she would not be applying for appointment to anything else, but it would apply to each of the others. There is something ridiculous about the commission sitting and adjudicating on the suitability of one of its own members to be a member of the Supreme Court.
Looking at it from another angle, if the President of the High Court is considered to be somebody suitable ex officio to express views about the suitability of other people, is it not remarkable that it could turn out that he or she was not suitable for the appointment themselves? I keep reminding us of this point, but the President of the High Court can serve on the Supreme Court and does so on occasion.The absurdity of saying that the President of the High Court could be voted off the shortlist to be sent to the Government by his or her colleagues becomes very apparent.
What is the remedy for this situation? The alternative is clear, and that is that an ex officiomember of the commission who is eligible for appointment and wishes to be appointed may indicate that fact to the secretary to the Government rather than going through the process of being interviewed by his or her colleagues and so on. That would apply to judicial office holders and the Attorney General. If the Attorney General wished to be considered for appointment, it would not make much sense for him or her to apply to fellow commission members with whom, if he or she failed to be appointed, he or she would be expected to carry on business as if nothing had happened when, alternatively, the Government, if it was minded to appoint the Attorney General, could do so without recourse to this process.
There is a kind of superficial attractiveness to the section as it stands because it looks very fair - "I am the President of the High Court. I will walk outside the room and not participate in advising on other appointments to the Court of Appeal while I am in that position." It looks "oh so fair" that that person simply excludes himself or herself from the process. However, he or she would be excluding himself or herself from a process in which he or she would beex officio normally involved. It is my strong view that the right remedy for this is as set out in the amendment, namely, that we would not ask a member of the commission to step outside the room and be interviewed by other members of the commission for a promotional appointment but, rather, simply allow that person to indicate to the Government his or her willingness to be appointed to the position and leave it at that. It is nonsensical to think that a member of the commission holding one of the senior positions would be interviewed by its other members. It would be far better to simply revert to the obvious solution, which is to allow the Government to appoint or decline to appoint a person who indicates an interest as it so wishes and without the absurdity of members of the commission interviewing each other, which proposal I consider grotesque.
I echo the comments of Senator McDowell. Before I address the amendment, it is worthwhile to put its exact wording on the record of the House:
In page 31, between lines 29 and 30, to insert the following:“47. (1) Nothing in this Act shall be construed as requiring a member of the Commission who is eligible for appointment to any judicial office to make an application to the Commission to be considered for appointment to that judicial office.
(2) A person to whom subsection (1) applies may notify the secretary of the Government of his or her wish to be considered by the Government for appointment to any vacancy in any judicial office.”.
It seems absolutely absurd that a member of the commission would be interviewed by fellow members of the commission and then, were he or she to be disappointed in his or her ambition to be made a member of the Supreme Court or another court, would have to go back and work with the members of the commission who had openly rejected him or her and stated that he or she was not fit to be appointed to the court, and then go on to consider the merits of another candidate. It is absolutely daft. Of course, that is my opinion and the Minister may differ. I note he is chortling and nodding to himself, so perhaps he will differ. More power to him. I do not see how he can oppose this amendment because it seems to me to be perfect common sense. It flies in the face of the common sense of which we hear so much in the admirable television series "Rumpole of the Bailey" that a sitting member of the commission must formally subject himself or herself to the commission's judicial appointment process only to fail and then return to work with the colleagues who failed to select him or her in the process. It is absolutely daft.
It equally flies in the face of common sense that a person seeking promotion through the court ranks or who wishes to become a judge would be selected by the same people with whom he or she had been working in selecting other judicial nominees. I would be very interested to hear the response of the Minister. I look forward to a prolonged, protracted and even, perhaps, tedious argument on this subject.
-----conjured up images of intrigue, mystery and blackballing within the room where the judicial appointments commission members are sitting. He has referred to members absenting themselves or staying in the room, and it is all couched in intrigue. I do not believe it will be at all like that. The fundamental misguidance of Senator McDowell is borne from a hostility on his part to any involvement by persons other than lawyers and judges and an inability to countenance any lay participation on the basis of a lack of understanding on the part of lay persons of the appointments process. That is with what I have a fundamental difficulty. It very much explains his implacable opposition to the Bill.
The amendment undoubtedly wishes to completely circumvent the recommendation process and would allow a member of the commission to notify the Government secretary of his or her wish to be considered for appointment by, thereby completely setting aside the new appointments system. That is with what I have a problem. I cannot accept a proposal that eligible persons on the commission need not bother with the new appointments system as it would defeat the fundamental objective of the Bill, although it is certainly consistent with the view of Senator McDowell, echoed by Senator Norris.
I remind Senators of the recusal aspect of subsection 47(3) in particular.The principle of recusal is not new. It is important. I would go back to the Courts and Court Officers Act 1995, which specifically provides for the recusal of the Attorney General. I do not accept the basis of the amendment. I believe it is along the lines of what we have seen for the past 100 hours or more, a failure to acknowledge the reformist nature of the Bill, involving persons other than members of the Judiciary or senior barristers.
I wish to make a quick observation. First, I do not really see where Senator McDowell's alleged antagonism to lay participation comes in at all. I do not see that it is relevant to the argument. It is just something the Minister wanted to get off his chest because I do not see it is at all relevant to the discussion on this amendment.
Does the Minister think there are members of the High Court, currently or in the past, who are unworthy to be considered for a position on the Supreme Court? I think it would be very worrying indeed if this were the case, if there were people acting in the High Court who were unfit to be considered for the Supreme Court. That would be a very worrying aspect of the situation. These are just the two points that I make at this stage.
The Minister has said quite openly that they are fully fit to be members of the Supreme Court. We know that. So why put them through this circus of having them apply for the position? It is absolute nonsense, a complete waste of time. If this discussion is a waste of time, it is not anything like the waste time that is involved in this farrago.
The Minister misunderstands my motivation in proposing this measure. He ascribes it to a wider motivation, which is opposition to lay participation in the commission. I have no objection to lay participation in the commission.
The Judicial Appointments Advisory Board has lay members on it. I have no problem with that principle at all. I do have a problem of saying to the Chief Justice that the Chief Justice should not chair the commission purely as a put down for the Judiciary. I do have a problem with saying that lay people must be a majority of every sub-committee as a matter of principle when that is not particularly necessary. That is not relevant to this particular amendment.
To underline what Senator Norris just said, on the Minister's intervention to say that he had full confidence in every member of the High Court, every member of the High Court can function as a member of the Court of Appeal and the Supreme Court, if asked by the President of either of those courts to participate in it. This is not a question. One cannot become a member of the High Court unless one is ex officiosuitable to serve on the Supreme Court. That is the law of the land as things stand and as they will stand in future. One may not be a pavilion member of the High Court, that one is just scraping in and that one is in a category of people whom the Chief Justice cannot ask to serve on the Supreme Court in the event of a vacancy or a particular need. The same applies to the Court of Appeal.
Once one becomes a member of the High Court, one is as a matter of law, assuming an office which entitles one when one is invited to serve on the Court of Appeal and the Supreme Court. One must be suitable ex officio to do that, if invited to do so. Let us be very clear about this. This is a central aspect of my worry about people who are so qualified being asked to submit to a further test of suitability by a commission. That is why I have said from the very beginning that the Judicial Appointments Advisory Board system is far better, because it states that serving members of the Judiciary need not, and may not, apply to the Judicial Appointments Advisory Board to be considered. It is left to the Executive to make the decision by itself.
I am not conjuring up some dark secretive scenario, in which under a cloak of secrecy various rivalries get played out. The Minister puts down a recusal section that says that if one wants to apply for the job one must opt out of the whole idea. That sounds plausible. The problem with it is that it envisages a situation that having opted out one does not get the job and one is not recommended. However, what arises then is what is one's future relationship with one's fellow commission members if they have said that an individual is not suitable to be a permanent member of the Supreme Court and they are not recommending the individual even though, ex officio, the Chief Justice can ring one up in the morning and ask one to serve on that court for a particular case. There is nothing untoward or contrived about what I am saying. I am merely trying to address the same situation that the Minister's section is trying to address and that is the situation that exists if any member of the commission wishes to be considered for recommendation for appointment.
I am saying that it would be very strange indeed, and I reiterate this, for the President of the High Court to have to submit himself or herself to interview by fellow members of the commission to ascertain his or her suitability to be appointed to the Court of Appeal or to the Supreme Court. I cannot imagine anything more artificial or ridiculous than that process. What is the President of the High Court to do? What is the interview supposed to be about? One holds one of the high constitutional offices of the country, one is willing to serve in a vacancy in a court above the High Court, namely, the Court of Appeal or the Supreme Court. What more is there for the commission to do? To start interviewing the individual about his or her aptitudes, where one went to school. I do not know what the interview would be. Can one imagine the President of the High Court sitting in a room with a number of lay people asking him or her why he or she wants to be on the Supreme Court. How grotesque is that? Why is one not happy with the job one has?
Let us think about this, it really does reduce itself to nonsense. What form could the interview take? Just imagine anybody being the President of the High Court and a group of people asking him or her why he or she wants to be on the Supreme Court? "Because I am tired of the job, I have been worked too hard, I have done a very good job and I would prefer to be up there." It becomes absolutely obvious that such a process is stupid. The same applies to the President of the Court of Appeal. If he or she wants to be appointed as an ordinary judge of the Supreme Court, on which he or she isex officio capable of acting in any case, if invited by the Chief Justice, to say to that person, "we are demanding that you be interviewed by the rest of us", is just grotesque. It is not me conjuring this up this. This is what the Minister is providing for. He is saying that if the President of the High Court wishes to be appointed to be an ordinary judge of the Supreme Court, he or she has to exit the process take no further part in the process and subject himself or herself to an interview and an evaluation process by fellow committee members.What is supposed to be done in this regard? Is the President of the High Court supposed to write an essay on a form saying why he or she should be a member of the Supreme Court? Is that seriously envisaged? Is her or she supposed to give an outline of his or her experience? Is her or she supposed to set out what has made him or her desire to be on the Supreme Court rather than retaining his or her present position? That is the slightly weird process for which the Minister is legislating. There is nothing imaginary about that process. That is what section 47 will provide for.
My alternative section 47, on the other hand, is simple. It would provide that such a person may be appointed by the Executive in any event because the Constitution provides for it, and he or she would not have to undergo the charade, absurdity and artificiality of being interviewed as to why he or she wanted to be appointed an ordinary judge of the Supreme Court. It would provide a simple way for the Government to make the choice. Instead of saying he or she is opting out of one process, it would simply require a letter to be written to the secretary to the Government to advise that if an appointment is being made, he or she is interested in the position. That is simple, straightforward, honest and transparent. From the Government's point of view, the name of the President of the High Court will naturally not be on the shortlist because he or she will have indicated an interest in the appointment, and that will be the end of the matter. I can see nothing odd, artificial or arcane about the process I have in mind. The idea, however, that a senior office holder such as the President of the Court of Appeal might have to stand aside from the commission, be interviewed by those members of the commission who comprise the interviewing committee, and set out why he or she wants to be a Supreme Court judge is absurd. Even if he or she did not have to set out reasons, what would be the point of having his or her suitability assessed as an ordinary member of the Supreme Court given that he or she is, as a matter of law, suitable to serve on that court?
I return to a point I made earlier. If the Government decides to appoint the President of the High Court as an ordinary member of the Supreme Court or to some other court, it will have policy considerations in mind which the interview process cannot address or have anything to do with. Far from my proposed section 47 being in any way strange, it is the Minister's proposal that is strange and it is underlines and exposes the ridiculousness of one commissioner applying to the rest of the commission to have his or her suitability assessed when he or she is, as a matter of law, well capable of being appointed to the position in question.
One would have to be a nutjob to object to the Senator's amendment. I use the expression "nutjob" because I heard it during the week for the first time and thought it so delicious that I sought an opportunity to use it, which has now been provided.
Enough of this nonsense. I do not know what the Minister had for lunch because he has dreamed up all these fantasies of smoke-filled rooms, conspiracies and so on. I do not know where it is all coming from. As Senator McDowell has eloquently outlined, the President of the High Court is deemed as being eligible to act on the Supreme Court. Is the Minister saying this person might not - not "is not" but "might not" - be suitable for appointment to the Supreme Court? Otherwise, he is saying the person must automatically be deemed to be qualified. Where is the argument? I just do not see it.
I do not know whether one has to be whatever expression I used was to oppose the amendment, but it certainly seems bizarre and I do not understand it. I reiterate that the President of the High Court can act as a member of the Supreme Court and, therefore, is deemed to be qualified. Why should he or she apply again, unless the Minister is saying such a person is not fit to be a member of the court? If he is not saying that, he is saying such a person, as the President of the High Court, is automatically qualified. I do not see any other explanation.
The excuse that might be offered is that it is not that such a person would be unsuitable to be a member of the Supreme Court, but that the commission might believe that three other people were more suitable. That might be the excuse that is made for there being a shortlist of three among which he or she did not appear. I have thought the matter through, however, and even in that scenario, what is the President of the High Court to make of his or her fellow members of the commission if they say there are three people more suitable to be on the court than him or her, given that the following month the same President of the High Court may consider the suitability of other people for a similar vacancy? It is ridiculous. If we trust the President of the High Court ex officiosufficiently to say he or she is ex officioa member of the commission, it follows that the high degree of trust that automatically reposes in him or her as a member of the commission carries with it the entitlement not to be interviewed by his or her fellow commission members to assess his or her suitability. It further follows that it would confer on him or her the small but totally practical right to say that as a member of the commission and a holder of high constitutional office, rather than being interviewed by one's fellow members and putting them in the position of choosing to accept or reject, to short-list or not to short-list, he or she will indicate to the secretary to the Government that he or she is available to fill the position, rather than causing any embarrassment. What if the President of the High Court was appointed to be President of the Court of Appeal or an ordinary member of the Supreme Court?If that happened and it was printed in Iris Oifigiúil, would it matter a damn that the commission was or was not in favour of such a thing? Would anybody say it was a scandal that the President of the High Court had been made a permanent member of the Supreme Court on which he had in the past sat as an ordinary member at the invitation of the Chief Justice? Would anyone say it was a scandal because the commission and his fellow commissioners did not recommend him? What reality is there to that? If there is none, let us forget section 47 and take the honest, straightforward path of excusing the fellow commissioners from the embarrassment of having to assess one of their own number and put him in a competitive process to get on a three-member list with other people and simply allow a commissioner to indicate a willingness to serve. Let us leave it to the Government of the day to choose between those shortlisted and the commissioner who has indicated his willingness to be selected. Nothing could be more efficient, sensible and less open to criticism than such an arrangement.
What would be open to criticism, however, would be the opposite scenario in which the President of High Court put his name forward, was interviewed, considered by the other commissioners, placed on the shortlist and selected by the Government. People would say "Big deal". Would they seriously expect he would not be included on the shortlist? Let us be honest. Our amendment is a great deal more practical and a great deal more realistic. It is a great deal less worthy of smoke-filled rooms or dark scenarios than the Minister's proposal. The people would understand immediately that if the President of the High Court wished to be considered for ordinary membership of the Supreme Court, it would be more honest and straightforward to write to the Secretary of the Government and asked to be considered than to put the Chief Justice, the President of the Court of Appeal and fellow commissioners to the embarrassment of having to interview a person with whom they have been making choices before and with whom they will continue to make choices afterwards. It would be to pretend to go through the process of including or excluding the President of the High Court from a shortlist. I wonder which is the less credible scenario, my amendment or the Minister's section? I consider it ridiculous that the public are to expect that the President of the High Court has to be interviewed by fellow commissioners and shortlisted to be one of three in order for the Government to consider him for membership of a court on which is already ex officio entitled to participate when invited.
Members of the commission are human beings. I am not impugning their reputations or behaviour but they are human beings and there could, indeed, arise an element of vindictiveness, jealousy, malice or spite. Someone might enjoy giving a poke to the President of the High Court if he or she went forward. How can the President of the High Court be deemed competent to judge someone else's suitability if he or she is not suitable? The very fact of putting the President in the position of having to judge the suitability of a candidate, puts him or her in an equal or superior position to that person. If one is making a judgment on someone, it suggests one is his or her equal or superior. I agree completely with Senator McDowell that the section is a nonsense and I support strongly the amendment he has tabled.
I move amendment No. 93b:
In page 31, between lines 29 and 30, to insert the following:"47. Where the Commission has in the past recommended the appointment of any person to any type of judicial office, that person shall for the purposes of this Act also be deemed to be recommended to any judicial office of the same type except when the person has notified the Commission or the Secretary to the Government that he or she no longer wishes to be considered for such type of appointment.".
This amendment is similar to one which has already been considered. Therefore, I do not propose to have too long a debate on it. Senator Norris thought we had debated it already but, in fact, we debated a very similar amendment that the Minister rejected. I will not, therefore, reiterate the debate at great length. However, it seems to me absurd that if I am on a shortlist of three and am recommended and a vacancy of the same type occurs a month later, the Government gets a shortlist on which I no longer appear. I am deemed not to have been a recommended person even though I was recommended a month earlier. In the circumstances, I ask the Minister to accept the amendment.
I support Senator McDowell's amendment strongly. It is very sensible. Its clear intent is to accommodate a previously unsuccessful applicant for a judicial position who for one reason or another may be chastened by his or her unsuccessful attempt to become a judge on a previous round and does not apply again. There is no earthly reason a person who has already gone through the application process for a previous position should have to do so again.
The person has been recommended. How could he or she possibly be considered in any sense or under any circumstances unsuitable? The person must be suitable given that he or she has been recommended. It is perfectly obvious that the person is eminently suitable. It gives the Government of the day the opportunity to appoint a person who may have been a close second on a previous occasion. Under the Bill as drafted, that opportunity might not be there. This is an important amendment and it is eminently sensible. Why should someone who has been adjudged suitable and appropriate have to go through the whole rigmarole again and make another application? It is complete nonsense. As for wasting time and tedium, this is a completely tedious process. It is a complete and utter nonsense and I hope the Minister will accept the amendment.
I do not intend to accept the amendment because the consequences of it have not adequately been thought through. What the Senators have in mind is a concept of "once recommended, always recommended". That can present difficulties in so far as the workings of the commission are concerned. I do not know how this would work. For example, would it mean that a person would be recommended for a period of a year or two years?Is it envisaged that a recommendation would remain live and active after two years? Would there be a requirement that a further recommendation be made in respect of a new vacancy or would the commission be obliged to have no regard for any person other than those individuals already recommended? If the intention here, as in the previous amendment, is to cut out the commission entirely, that would not be an acceptable approach. I refer to this "once recommended, always recommended" approach being used to circumvent the commission process. If the latter is the case, it is an unintended consequence that I cannot countenance.
I will provide an example. If there are three appointments over the course of a year, we could then have a bank of persons who would remain recommended. We could, for example, have nine names for consideration in respect of one appointment. That would obviously present a difficulty. There are practical problems. I do not believe the approach outlined is an appropriate way of dealing with things. It is fair to state that if we look at the Judicial Appointments Advisory Board, and the manner in which its recommendations are made, there is not, to my knowledge, any application of a once recommended, always recommended framework. Different specified requirements for candidates may emerge from time to time in the order of ranking. That would, of course, be prescribed by the procedures committee under Part 8. I am not going to accept the amendment. I fully understand the points made in support of it but having a situation where a recommendation remains live, perhaps for years, is not the best way forward.
Is the Minister suggesting that judges somehow degrade morally or intellectually over a period? If so, are they suitable to be on the Bench at all? It seems perfectly clear that Senator McDowell's amendment is very sensible. If judges are considered competent and suitable, I do not see any reason they should not remain under consideration for posts, unless the Minister is suggesting they do degrade in some way. Supposing there were nine of them, as the Minister mentioned, is that not a wonderful tribute to the judicial system in this country? It would be marvellous to have nine judges all eminently suitable for consideration. I am of the view that they should all be considered. I have no problem with that at all. I do not mind if there are nine of them.
Following what the Minister stated by way of observation on the amendment, it is quite likely, given the turnover of people in the judicial hierarchy, that positions in the Court of Appeal will become vacant quite frequently. In a matter of months, somebody in the Supreme Court could retire, somebody from the Court of Appeal could then get that job and there would be another vacancy on the Court of Appeal. In other words, it is not at all unlikely that appointments to courts, and the superior courts, at the same level will take place with considerable regularity. I am hoping that would not be a daily or weekly occurrence but it would certainly happen a number of times in a year, on average, given the size of the Bench.
Let us suppose a judge of the High Court applied to be considered for a position on the Court of Appeal. Suppose also that he or she has been told that he or she has been shortlisted for that job and recommended to the Minister for appointment. One of the other persons on the shortlist is then chosen and two months later an appointment to the same court at the same level becomes available. Is that person seriously to be asked to reapply, resubmit himself or herself for appointment and take part in a competitive process to be on a second shortlist for recommendation to the Government? Let us assume, for example, in the scenario I just painted, that two out of the three people shortlisted are not appointed. Another vacancy at the same level then becomes available. It is advertised because that is the process. Is the person who was not successful seriously to be asked would he or she now resubmit an application? Would he or she be expected to compete against people, including some who may not have been applicants for the first position, who may knock him or her off the list if they are viewed by the commission as being better nominees than our original candidate? How often is a High Court judge to be asked to do that in a year? If that happened three or four times a year, at what stage will the High Court judge decide that he or she has had enough?
If that judge has been told that he or she has been recommended and the Government is aware of his or her existence as a recommended person, why should we go through the whole process again of reminding the Government that the individual concerned is a recommended person? Senator Norris asked the very good question as to whether the assumption here is that people degrade and become less suitable having been recommended. It might perhaps be the converse and somebody else more suitable comes into focus. My amendment does not state that a person will automatically be included in the next list. It just means that person is noted by the Government as having already been recommended for a position. The name of the person is included along with a fresh list of three other names.
My amendment would mean a person would not be required to go through the whole process again. In the example I have given, the Government could look at the four names before it. It could then decide that the person who was the runner-up the last time, to use that phrase, is the person it is going to appoint this time. That is especially the case in view of the Government's rejection of Senator Bacik's proposal that there be a running order. The Government is not going to know the commission's preference for first, second and third in the ranking. If the Government chooses an applicant, it is not going to know that the other two were ranked in any particular order. I cannot see that anything will be lost by accepting this amendment. The Minister asked if there is some time limit to all of this. If a person is recommended in 2019, is he or she to be there forever? Would he or she be there in 2027, for example, lurking in the wings-----
Perhaps the principle behind my amendment could be addressed by including the words "shall be deemed to be recommended to any judicial office of the same type where the vacancy arises within three years" or something of that nature in the Bill. I would be happy to go along with such a wording. The principle of what I am talking about, however, is, again, to make the system work. It is intended to prevent the Bill, if enacted, from reducing the process of appointment to the Judiciary to a constant beauty contest whereby applicants must keep applying and competing for inclusion a shortlist against unknown new personnel from the Bar, as well as solicitors. If applicants fall off the edge of the list in that situation, their eligibility for appointment is then deemed to have gone.That is wrong. The principle of my amendment is eminently commonsensical.
Senator McDowell has raised the question I was going to raise. The Minister himself raised the question of time limits. Senator McDowell did not quite put it to the Minister but I would like to ask him whether he would accept an amendment, as suggested by Senator McDowell, to add the phrase "for three years"? That would effectively put the time limit into the situations. Will the Minister agree to this? Having raised this issue of time, would he agree to an amendment that has this time limit contained in it?
No, I think the preferable way to deal with this is to acknowledge in the instance the right on the part of the commission and its members to recommend to the Government and engage in an order of ranking or grading. Senator Norris flips it on its head and speaks about degrading.
I do not have a view on this because these are issues that will ultimately be decided by the commission independent of the Government and that process. There is a scenario where there will be an order of recommendation for the Government. In practice, listening closely-----
The point of reference to Senator Bacik was that her amendment was to the effect that the Government would be mandated to give appropriate consideration to the order of ranking. To my mind this is where it would impinge on the free hand of the Government in respect of the constitutional requirement. In any event, looking at Senator McDowell's scenario, the practice, as I envisage it, will be that if a person who is recommended is not appointed that person may well be the subject matter of a positive recommendation at the earliest opportunity thereafter. This will be an issue of which the Government will be mindful. There is a practical solution to the point without introducing a new concept, which the amendment envisages, and that is that once a person is recommended that recommendation remains for however long the legislation might deem fit. I see what the Senator is saying about the time limit. I am not minded to introduce an amendment with a time limit. Rather, I see a practical solution to this, which I am confident the commission in its wisdom will be mindful to apply.
Just to make the point, the Minister referred to Senator Bacik's amendment and suggested it mandated the Government to do this, that and the other. It does not in fact. I have just looked at it. It states in considering the persons whose names have been recommended by the commission the Government shall consider those persons in the order of the commission's preference and having regard to the objective that the membership of the Judiciary should comprise equal numbers of men and women.
No, I am open to allowing the commission engage in the due process. It will engage in an interview process deemed appropriate and then make a recommendation to the Government and the Government will give the matter due consideration.
That is not in the Bill as I understand it at the moment. Unless the Minister proposes to amend the Bill to allow for this, the commission has no function as I see it in selecting people in a particular order. Of course, this is of some significance because if it will operate on a consensus basis that is one thing but if it is going to be taking votes on who appears as numbers one, two and three on the list-----
These will be issues for the commission itself. I do not wish to unduly influence the process as far as the commission is concerned. That is why we have a process. The difficulty with the amendments is they are designed specifically to bypass the process of recommendation.
I do not believe that because somebody is a sitting member of court, he or she should be excluded from applying in the normal course of events, and then the commission in its wisdom will make a decision on the matter of the recommendation, not me.
This is fairly important because I had understood until this afternoon - and the Bill has been on Committee Stage for some considerable period as we are all well aware - that the shortlist was to be an inordinated shortlist, one in which three names appeared without any signal to the Government as to which was the most preferred, the second most preferred and the third most preferred candidate. Maybe I am missing something in the legislation that suggests the commission is to present an ordered shortlist but I had not seen this until now.
The Minister says a prioritised list can be provided for. I challenge him to show me where in the Bill that is provided for. I do not see it. Perhaps he can point to the specific point in the legislation where this provision is made that a prioritised list is available. This is the subject of Senator Bacik's amendment, which the Minister has rejected.
Not to go back over an amendment in the name of Senator Bacik that has been withdrawn, and not to discuss it in her absence, which would be unfair and probably against the rules, I would direct Senators to Chapter 2, section 40(2)-----
The Senator has been operating from a different page. It is section 40(2), which states, "the Commission shall, in accordance with this Act, recommend to the Minister, in respect of the judicial office concerned, the names of 3 persons, ranked in the order of the Commission’s preference."
The point at issue as far as Senator Bacik is concerned is that she was directing that the Government give particular consideration towards the recommendation.What we have here is merely a statement of preference on the part of the commission with no direction to Government. In the circumstances this would, to my mind, present Government with a difficulty.
I am not sure the amendment mandates the Government to do anything. If the Government received the nominations of three people ranked in order of preference, it would be terribly odd if it did not consider them in the ranking presented? Why on earth would it not consider them in that ranking? It would want to have a very clear and specific reason not to do so and I cannot understand why it would not do so. If one is presented with a list of preferred candidates ranked one, two and three in order of fitness, why on earth would one start with number 3? Why not start with number one and then move to number two followed by number three? That would be the obvious thing to do and I cannot understand any reason why one would not do it.
I stand corrected by the Minister. I had forgotten about the subsection in section 40. Owing to his stated opposition to Senator Bacik's amendment, I had assumed there was not a process of ordering the list in accordance with the commission's preference. To return to the question of members of the commission being placed at number three rather than number one in the order of preference. That is yet another reason the amendment the House just made is a sensible one.
To go further, if the Government were, for instance, to select the third preferred choice of the commission and appoint that person, it would be very strange if the occupants of positions one and two had to resubmit themselves to the commission for re-evaluation in the light of the Government selecting a lower ranked recommendee. Is the Minister of the view that the order in which people were recommended would be made known to the people recommended? In other words, if I were recommended as a judge to the Government for appointment, would I be told that I was recommended number one or number three or would I be left in the dark on that subject? If I am left in the dark on that subject, it could affect my willingness to apply again. If I had been bypassed in favour of somebody else or, alternatively, if others were bypassed in favour of me, I might think the Government clearly does not want me and there is not much point in applying again. Is it envisaged that in light of the requirement that it comply with best practice, which is set out in the Bill, would the commission tell somebody that he or she came first on its list or would the candidate be left in the dark on that subject?
I suggest that this issue would be the subject matter of consideration by the commission. After all, we are empowering and enabling the commission to set its own rules in terms of the practice and procedure. I draw Senator McDowell's attention to section 53(5)(g) and (h) on the matter of the "the need for good standards of communication with applicants for judicial office, and the provision otherwise of a good standard of service to them in respect of applications made by them under this Act". That might fit the bill along the lines of the suggestion or proposal made by Senator McDowell. It is eminently reasonable that the matter would be considered.
Just leaving it to the commission to make up its own mind is hardly satisfactory. If the purpose of this legislation is to have a transparent process and one is going to say that the commission is obliged to give an order of preference, surely that information must be available to the people recommended, or not, as a matter of law, not just as a matter of the commission's discretion? If I come first on the list and somebody who was recommended as number three gets the position, surely either I am or I am not, as a matter of law, entitled to know that is the situation? Saying that one would leave it to the commission's own discretion as to whether I would be informed that I came first in the shortlist is a very non-transparent procedure.
There is not any obligation on the part of the commission to engage in the grading or recommendation process by way of order of ranking. It may well submit a number of names to the Government and allow the Government to consider them by way of an equality of recommendation. In the circumstances, it is best to leave the matter to the commission to decide its ordering of rules. If the commission decides to make a recommendation in order of preference, it would appear to me to be good practice that the applicant would be furnished with such information.
The Minister's attitude seems to be to leave everything to the commission. He is giving it a very wide brief.
I apologise to Senator McDowell who wishes to contribute. The Minister drew attention to section 53(5)(h) but it refers only to "the need for good standards of communication with applicants for judicial office, and the provision otherwise of a good standard of service to them in respect of applications made by them under this Act". That is extremely vague and does not do what Senator McDowell's amendment suggests. The provision is extremely wide and is a general statement of principle.
I think the Senator is saying that the section 53(5)(h) does not deal with the point that I made.
To return to section 40(2), to which the Minister drew our attention a moment ago, it is very clear. It states: "Where this subsection applies, the Commission shall [not may] in accordance with this Act, recommend to the Minister, in respect of the judicial office concerned, the names of 3 persons, ranked in the order of the Commission’s preference." It is a mandatory requirement to do the ranking and is not optional, as I read it.
I am not inclined to accept the amendment because there are practical solutions available. One of these is that a person recommended but not appointed could well be the next person to be recommended and appointed, rather than have a statutory provision that an individual, once recommended, would always remain on a preferential recommended list.
Interestingly, the Minister has used the word always, which introduces a question of time. Again, it seems to me that there is no reason, from the Minister's point of view, why he should reject an amended amendment which would introduce the notion of time to Senator McDowell's amendment.
It is bizarre that Senator McDowell would press the amendment given that the Minister has indicated he will consider an amendment to address the time issue. Why would one want to press the amendment when one is getting something positive? I ask Senator McDowell to reflect on his decision.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Martin Conway, Maire Devine, Frank Feighan, Maura Hopkins, Anthony Lawlor, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Niall Ó Donnghaile, James Reilly, Neale Richmond.
I move amendment No. 93c:
In page 31, between lines 29 and 30, to insert the following:“47. It shall be the duty of the Commission to notify every person who has applied to the Commission to be considered for recommendation for appointment to any judicial office as to whether or not such person has been so recommended by the Commission in accordance with the provisions of this Act.”.
This amendment is designed to make clear what the situation is regarding the commission's obligation to persons who applied for appointment to a judicial office. The Minister has referred the House a number of times to section 53(5)(h), which relates to the obligation on the commission to observe "the need for good standards of communication with applicants for judicial office, and the provision otherwise of a good standard of service to them in respect of applications made by them under this Act". The Minister has implied a number of times that this may be seen as imposing on the commission an obligation to inform a candidate for judicial office of whether he or she has been short-listed. In my reading of it, though, it does not have that clear effect. Therefore, we have tabled this amendment. I hope that it will be accepted. I cannot see any reason for it not to be. Why should we rely on section 53(5)(h), which is a watery-----
-----approach to the issue? If we expect unsuccessful and successful candidates to be told whether they have been short-listed, we should instruct the commission through the legislation that this is the policy it is to apply. It only makes sense. Imagine dealing with the scenario we discussed earlier. The President of the High Court has recused himself from the process and allowed his fellow commission members to deal with it in his absence because he is interested in appointment to a position in the courts above his. Either he will be told the outcome or he will not. He is entitled to know it. If he has gone to the trouble of applying, he is entitled to be told by his fellow commissioners whether he was on the shortlist. If that applies to the President of the High Court, it applies to every other applicant. Applicants are entitled to know whether they made the shortlist.
The alternative view is people are to be left banging their heads against a stone wall not knowing whether they will ever be, or have ever been, short-listed. I can well imagine a senior solicitor or barrister who is seeking to be recommended. To leave such a person in the dark and not tell him or her whether he or she has ever been short-listed would be slightly insulting to the person. If, after five applications, the person has not been short-listed on any occasion, maybe the message will get through that it is pointless applying if he or she knows that. However, if the person were to believe on the contrary that it was possible to get through after being short-listed on a number of occasions but where the Government had preferred someone else, he or she might view having another go as being worthwhile. I cannot see any reason for this amendment not to be accepted.
I will put it to the Minister this way. If the amendment is not accepted and I am being fobbed off with section 53(5)(h) as the best he can do on the question of transparency, I do not believe that anyone will be informed of whether he or she was short-listed. In the absence of a clear statutory direction to inform unsuccessful and successful candidates as to whether they were short-listed, the commission will take the view that it is better to keep these matters confidential. That means the whole thing will be shrouded in secrecy and applicants will have no idea.This reminds me of the story about an American television reporter interviewing a rabbi in Jerusalem. The reporter suggested that the rabbi had been at the Wailing Wall for the past 50 years and he said "Yes, that's true". When asked if he prayed there every day he said, "Yes, that's true". When asked what he prayed for, he said peace, fraternity and love among people. The interviewer then asked what he thought after 50 years and he said that sometimes he thought he was just banging his head off a stone wall. We cannot have applicants for judicial office placed in that position.
I have had to think about this because it is a little invidious to tell people that they have not been recommended. They would be smarting after that. It would be a little painful but, on the other hand, looking at the complexities of the Bill and other provisions which mean that the Government has to reveal things, it is obvious that this should happen and that we should attempt to break the omerta, or code of silence, that has been unconstitutionally imposed on the Attorney General in the Bill as currently drafted. Bizarrely, as the legislation stands, the Attorney General is forbidden, on pain of criminal offence, from revealing to the Cabinet any persons who sought judicial office as part of the commission's appointment process. That is absolute madness in my opinion and, yet, under this amendment, if the commission is unable to recommend any person, for whatever reason, it is obliged to provide the name of every person who put himself or herself forward to the Minister. Separately and just as bizarrely, the commission is only bound to provide the Minister with the applicant's education, professional qualifications, experience, character records and the results of any interview or test conducted by the commission in respect of the applicant if fewer than three persons are recommended for a particular position. We have a ridiculous situation full of contrasts and paradoxes but this amendment goes a long way to resolve those inconsistencies and paradoxes. I will certainly be vigorously supporting Senator McDowell's amendment.
I have good news for the Senators as far as amendment No. 93c is concerned. It would place a duty on the commission to notify each and every applicant but Senators will recall that during the lengthy debate on 20 February, I agreed to accept an amendment moved by Senator Craughwell, namely, amendment No. 87b. I doubt that Senator Norris has a clear recollection of it but it is on the third additional list of amendments. The import was to insert a new section relating to the provision of information to applicants. Said section will ensure than an applicant is informed as to whether he or she was the subject of a recommendation for the purposes of Chapter 2 of Part 7 and whether it was the case that the commission considered the person was not eligible for appointment. There could be an ineligibility of which the person would, quite rightly, be entitled to be notified. I made it clear that in the event of there being any unforeseen difficulty regarding the wording as proposed by Senator Craughwell, we could revert to the matter on Report Stage. The statutory duty that amendment No. 93c seeks to impose is effectively the same as that set out in paragraph (a) of the new section 42 inserted by Senator Craughwell's amendment, which was presumably supported by Senators McDowell, Lawless and Norris. That is the good news but in view of the fact that there may be an overlap and that said overlap might give rise to confusion, if not uncertainty, I am reluctant to accept amendment No. 93c. However, I am satisfied that what is contained in the amendment is already covered in the amendment from Senator Craughwell that I was willing to accept on 20 February.
Amendments Nos. 94 and 95 correspond to Report Stage amendments Nos. 93 and 95 in the Dáil. The latter were part of a series of amendments that the Ceann Comhairle ruled could not be moved in the Lower House for procedural reasons. Section 47, to which these two amendments relate, provides for the recommendation to the Minister of a commission member and for the recusal of such member. Taken together, these amendments are, to a large extent, consequential on the inclusion of the Presidents of the Circuit Court and the District Court on the commission. The amendments provide, by extending the section, for their recusal where they have applied for appointment to judicial office and for their replacement in such event by the most senior judge of the relevant court. The amendments which, in substance, are focused on amendment No. 95, also deal with the recusal of the Bar Council or Law Society nominees and their replacement on the commission in these limited circumstances by another practising barrister or solicitor. I regard these additions as being necessary but I could not move them on Report Stage in the Dáil. I will defer to Senator McDowell on the matter of amendments Nos. 96 and 97.
In amendments Nos. 94 and 95, the Minister is putting in place the necessary outworking of his policy in respect of recusal. I ask him to explain what happens if the President of the High Court or the President of the Court of Appeal applies for judicial office. Is that covered already?
I will revert to the Senator on that.These are to reflect the changes that were proposed to incorporate a higher number of judges. Senators will recall that, in the initial drafting of the Bill, it was suggested that there would be a smaller number of judges and that a series of sub-committees would sit from time to time, as appropriate. On reflection, I felt it was desirable that there would be an ex officioplace on the commission for each of the presidents and these amendments specifically deal with what would have been the new members, the Presidents of the Circuit Court and District Court, rather than, as heretofore, being on what a sub-committee or subset, that they would now sit on the commission. It is following on the need for a recusal on their part where they have made an application for appointment themselves. I am informed, insofar as this applies to the Presidents of the Court of Appeal and High Court, they would, in the normal course of events, recuse anyway.
Section 47(3) states: "The person shall take no part in the performance by the Commission of the particular function and, accordingly, shall neither attend any meeting of it held for the purpose of the performance of the particular function nor cast any vote in relation to any decision falling to be made by it for that purpose."
We are now, through amendment No. 95, putting in subsection (4). That new subsection refers to "a case to which subsection (3)applies, and the person to whom that subsection applies is— (a) a person referred to in section 10(1)(d), (e), (h) or (i)." The people referred to in section 10(1)(d), (e) and (f) are the Presidents of the District Court, Circuit Court and the Attorney General.
The amendment continues: ("b) a person who is a member of the Commission by virtue of section 17(5) or (6) [which is a practising barrister or solicitor] whoever of the following is appropriate shall, notwithstanding anything in section 10(1) or 17(5) or (6), be a member of the Commission for the purpose, and the purpose only, of the performance by it of the particular function".
The amendment then outlines that where the applicant is the President of the Circuit Court, the next most senior ordinary judge of the Circuit Court available shall be a member of the commission. In a case in which the applicant is the President of the District Court, the next most senior of the District Court available shall be a member of the commission. In a case where the applicant is a barrister, another practising barrier appointed by the General Council of the Bar in Ireland shall be a member of the commission. It is a similar situation for solicitors.
A substitute is, therefore, provided for where the President of the District Court or Circuit Court is applying for a judicial office. There is an application for a substitute from the respective court to be appointed. Likewise, if a barrister has been nominated, another barrister has to come on in his or her place. The same applies to a solicitor but not to the Attorney General because nobody substitutes for the Attorney General.
As I read this now, we are creating a lacuna in the case of the Presidents of the Court of Appeal and the High Court. No substitute is provided for them if either of them applies. The Bill does not provide that the next most senior judge of the Court of Appeal is deemed to be a member of the commission, nor has that been applied to the next most senior ordinary judge of the High Court. I cannot understand why there is an omission in respect of the Presidents of the Court of Appeal and High Court and why there are no substitutes provided for their positions whereas this section seems to do so for the other three courts and the two professional members of the commission.
The import of the amendments is to deal with the Presidents of the District Court and Circuit Court, a solicitor and a barrister who may be applicants. There is no substitute in respect of the President of the Court of Appeal or President of the High Court. I will look at that for Report Stage if it is deemed either necessary or appropriate.
I am anxious at least to have the framework now for the end of Committee Stage when the Bill will be subject to a review and appropriate period of reflection. I ask Senators to look favourably on this amendment and if there is a doubt about the position of the other presidents, I will look at that between now and Report Stage.
It is unsatisfactory that the Minister is proposing to provide a different regime for the presidents of the two lower courts than for the presidents of the two higher courts. If there is going to be a rule, it should apply to all of the presidencies. This amendment should be withdrawn and re-submitted.
I will press the amendment. I remind Senators of what I have consistently said over the past number of months. I am minded, with the approval of Senators, to consider a type of special committee regime in respect of senior appointments.
I am not trying to be difficult but the important point is that the Minister has said that is a special committee regime for appointment to the position of President of the High Court or President of the Court of Appeal. That is the model the Minister has proposed for section 44. This is different. This is dealing with the President of the High Court becoming an ordinary judge of, say, the Supreme Court. It is not a section 44 appointment at all according to the Minister's model under that section, although it would be different if he had accepted my model of that section. On his model, it is a job for the commission to fill ordinary positions in the Court of Appeal and Supreme Court. If the applicant happens to be the President of the Court of Appeal or High Court, applying for one of those positions, the Minister is leaving no substitute for them on the commission from either of those courts.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Maire Devine, Maura Hopkins, Anthony Lawlor, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, James Reilly, Neale Richmond, Fintan Warfield.
I move amendment No. 95:In page 32, between lines 4 and 5, to insert the following:“(4) In a case to which subsection (3) applies, and the person to whom that subsection applies is—
(a) a person referred to in section 10(1)(d), (e), (h) or (i), or
(b) a person who is a member of the Commission by virtue of section 17(5) or (6),
whoever of the following is appropriate shall, notwithstanding anything in section 10(1) or 17(5) or (6), be a member of the Commission for the purpose, and the purpose only, of the performance by it of the particular function, namely—
(i) where the person to whom subsection (3) applies is the President of the Circuit Court or the person who is a member of the Commission by virtue of section 17(5) – the most senior ordinary judge of the Circuit Court available (excepting for this purpose any such judge who, as respects the particular judicial office, has made an application under section 39),
(ii) where the person to whom subsection (3) applies is the President of the District Court or the person who is a member of the Commission by virtue of section 17(6) – the most senior judge of the District Court available (excepting for this purpose any such judge who, as respects the particular judicial office, has made an application under section 39),
(iii) where the person to whom subsection (3) applies is the person who had been nominated to be a member of the Commission in accordance with section 13(1) – another practising barrister nominated by the chairperson of the General Council of the Bar of Ireland,
(iv) where the person to whom subsection (3) applies is the person who had been nominated to be a member of the Commission in accordance with section 13(2) – another practising solicitor nominated by the President of the Law Society.”.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Rose Conway Walsh, Martin Conway, Maire Devine, Maura Hopkins, Anthony Lawlor, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, James Reilly, Neale Richmond, Fintan Warfield.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Martin Conway, Maire Devine, Frank Feighan, Maura Hopkins, Anthony Lawlor, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, Niall Ó Donnghaile, James Reilly, Neale Richmond, Fintan Warfield.