Tuesday, 14 May 2019
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
I am very grateful to the Minister. He took me by surprise on the last occasion by acceding to the amendment we tabled in respect of the superior courts. Rather than delay the House we did not debate it. This may have implications for other bits of the Bill which will have to be revisited on Report Stage. I will go no further than that.
This amendment simply proposes to insert the word "experience" into section 50 as one of the qualities or characteristics making up the definition of "requisite skills and attributes". The related amendments do likewise elsewhere in the Bill. In my view that is one of the deficiencies of Part 8 of the Bill. It does not really bring experience, which I consider to be of great significance, into play in determining a person's suitability for recommendation for judicial office.
These amendments are all more or less the same. They all insert the word "experience". It is the only thing they do. I completely agree with Senator McDowell. It is astonishing that experience was not called for in the Bill in the first place. I would have thought that was a prime requirement of someone being promoted to these senior positions. There is no doubt that experience in court is a very substantial asset for any judge and I would have thought it important to include it.
As it currently stands, section 50(1)(b) states: "requisite skills and attributes" means skills, competencies, personal attributes and characteristics that a person must possess in order that he or she may be considered to be suitable for selection (and the foregoing references to skills, and other matters, include those matters that, with any suitable adaptation, would be listed in the document commonly referred to as a "role profile")." This is actually quite vague. What are the "skills, competencies, personal attributes and characteristics that a person must possess"? That is very vague, while experience is a very solid, factually based and well-grounded idea and it is very important that it is included in the Bill at this juncture.
The first three of these amendments are to section 50, which provides for interpretation for the purposes of Part 8 of the Bill. I wish to briefly deal with an issue that arose since we last met.A story reported in the national newspapers on 10 May last indicates that acceptance of an amendment by me last week in some way represented a change of mind on my part, or even more than that, a departure from Government policy. That is not so. In fact, it is quite the contrary. The amendment we dealt with on the last occasion merely copperfastened the position set out in the Bill and in the Constitution in bringing some common sense to a procedural issue. There will be a requirement for a slight tweaking on Report Stage. I acknowledge the initiative by Senators McDowell, Norris and others but it does not do what it was purported to do in the national newspapers. In any event, the amendments being considered in this grouping are designed to add experience to sit alongside skills and attributes, as the description of one of the two statements to be prepared and published by the procedures committee under Part 8 of the Bill.
Briefly, the procedures committee will be set out in accordance with section 16. We can recall from section 10(2) that the functions of the commission shall be to select and recommend a person to the Minister for appointment, to approve a statement for selection procedures and a statement of the requisite skills and attributes for inclusion in what would be a published statement. Part 8 deals with the published statement. It provides the means by which the second function of the commission, as set out in section 10(2), is to be discharged and, later, in section 53, the procedures committee is empowered to prepare for submission to the commission a statement setting out selection procedures and a statement of requisite skills and attributes. Sections 53(5) and (6) set out matters that the procedures committee shall have regard to in preparing these statements.
With respect to the amendment, we are considering the second type of statement dealt with under Part 8, namely, the statement of requisite skills and attributes. The effect of amendment No. 97a and the latter amendments, which Senator McDowell has accepted are broadly similar, if not identical, would be to change the description of the statement of requisite experience, skills and attributes. Amendment No. 97a seeks to insert the term "experience" in the definition of what requisite skills and attributes means while amendments Nos. 97b to 97e, inclusive, would restyle the statement of "requisite skills and attributes" as a statement of "requisite experience, skills and attributes".
I am not minded to accept amendment No. 97a because Part 8, for the most part, deals with matters other than those relating to technical qualifications or experience; it deals with selection procedures. The amendments in this grouping do not appear to concern that aspect in respect of the published statements. We must accept the fact that experience is something entirely different from attributes, attributes being qualities and characteristics we would seek such as determination, honesty and work ethic. In short, I do not want to prescribe anything in particular for candidate judges because that will be an obligation on the part of the procedures committee. Experience is different from attributes.
We have already dealt with, over a considerable period, the basis for the assessment of a number of factors such as qualifications, knowledge and probity. Practice, experience and knowledge are to the fore here and that is important but it must be brought forward by the candidate in an application and by the commission in a recommendation.Experience is somewhat different from what might be regarded as more objective headings or attributes. My preference is that it will not be for the commission or the procedures committee to determine what type of legal experience, judicial experience or any other experience might be required. The basic qualifications and experience requirements are provided for in the Bill.
I believe that under section 56, for example, the committee can review the qualification requirements and the commission can seek research in that regard. The committee can report on the matter to the commission. However, this is still somewhat different from the matter of experience. The amendments are unnecessary because this is adequately provided for in the foregoing provisions of the Bill and it is not appropriate to insert them in section 50.
I want to focus on the word "attributes". Selection processes inevitably require some sort of marking scheme or some sort of credible system that can be assessed or judged. "Attributes" is a loose description. The Minister mentioned "work ethic". How do we compare the judge who is meticulous and takes a lot of time to make sure he or she gets things right first time with the judge who likes to expedite as many cases as possible in the shortest time? Has one a greater work ethic than the other? When we are talking about experience, we are talking about tangible things that can be readily marked or scored. Attributes are more intuitive and less scorable. I am interested in the Minister's view.
I am glad to see the Minister in sunny good humour today. The Minister then talks about more objective headings. I do not see what could be more objective than experience. The Minister asks what kind of experience but it is perfectly obvious that experience in court is the thing that matters - it is a person's experience of dealing with cases in court. While the Minister said the commission can review the situation at a later date, that is not good enough. We need to address it now and look at it. The Minister has not raised any strong argument whatever against including experience. It seems a most glaring omission from the Bill. This is something we would want to know about a judge, namely, that he had the experience and that we could see his track record, observe his judgements and see the way in which his mind works. These are all things that are very necessary in coming to a conclusion on this matter.
Determination is an attitude of mind and it can be good and bad. People can be determinedly wrong and determinedly right, and determinedly fair and determinedly unfair. Determination is seen, generally, as a positive attribute as opposed to someone being a vacillator or a hesitant person, although that only applies up to a point, because one has to listen to both sides of the argument and be fair to both sides. For something such as honesty, however, how is the commission to evaluate the honesty of a person coming before it when it cannot be submitted to any test?
It is hard to imagine how the commission would evaluate honesty. The point I want to make, and it is at a more serious level than those observations, is that experience that might be very relevant to whether somebody was appointed, say, as a judge of the Circuit Court, is, for instance, service as a member of the Residential Tenancies Board, the Employment Appeals Tribunal or in the asylum process, or on an appeals board for the State, where they would have demonstrated, and could be asked about, a capacity to be judicial or quasi-judicial. Experience is, therefore, hugely important.
If we take the notion that experience should not be one of the stated criteria, we must ask whether the commission should be blind to the comparative experience of two people who are candidates for short-listing. Surely it must give some credit for satisfactory performance and experience of a judicial or quasi-judicial kind. Surely, as Senator Norris said, if somebody was going to be appointed to the Circuit Court or the District Court and it appears they have been an in-house conveyancer for a bank and a practising solicitor for the previous 20 years, that experience must be weighed against that of somebody who has experience of litigation in the courts or in one of the tribunals established by the State. I do not accept the proposition that it is inappropriate to take into account experience in this context.
What worries me about excluding it is that people who have no experience will be recommended on the basis that the Minister in the Seanad said that experience was not something which should feature in these statements or in the published documentation. The argument will, therefore, be made that, historically, the Act was not intended to give credit for experience, where it is relevant.
Of course, I accept that not all experience is relevant and it cannot be the sole determinant. However, it must be part of the mix if we are choosing somebody to be a judge at whatever level in our judicial system, but more particularly the more senior the appointment. The fact that somebody has experience of court practice and procedure must be a significant issue in determining that person's suitability, especially when this legislation wants that to be done. It is unfortunate it is doing two things: first, selecting out of the group of people three people who the commission is then recommending to be first viewed by the Government; and, second, between them, ranking them in importance. The Minister drew our attention on the previous occasion to the fact they were to be ranked in importance but he did not draw our attention to how - and I had to go and research how - that provision had come into the text of the Bill in the Dáil.If memory serves, it was a proposal from Deputy Clare Daly. It was not part of the Government's original architecture of this legislation that the shortlist should be internally ranked in order of preference. It was not always part of the Bill. If we are going to compose shortlists and accept Deputy Daly's amendment which provides that there should be an order of preference within the shortlist of three, it makes little or no sense not to draw the commission's attention to the need to examine the experience of the various people it is considering for the shortlist.
I should add that I tabled amendments in respect of the situation where the Government wishes to recruit a number of judges to expand, for example, the family courts or the Court of Appeal's appellate side in the criminal area. My amendment, which we will reach in due course, indicates that the Minister in those circumstances may direct the commission to have regard to the fact that the Government is looking for family judges, not just chancery judges or landlord and tenant judges, and that the commission is obliged when making its recommended list to have regard to the underlying purpose of the vacancy on which the Government is asking it to make a recommendation. That is an essential amendment to the Bill, but we will reach it in the fullness of time. In that context, in particular, it is inappropriate to say that experience is irrelevant. To choose not to include it in the list of attributes of a person to be recommended and to reject an amendment designed to include it is to create a false devaluation of experience, which should not happen.
To make a brief comment, in advertisements offering jobs to the public it is almost invariably the case that they ask people to state their experience. On a number of occasions I have been a member of interview boards for jobs and one of the first questions one asks is: "What is your experience in this area?" I see the Minister nodding. This is par for the course. It is an inevitable part of the process of appointment to a job that people are examined on their experience. That is just a fact of life and it is highly appropriate that it be included in this Bill.
Some time ago in the further education sector, in which I taught, we hosted an expert in CV preparation. One of the points the expert made is that in a modern CV one puts one's experience at the top of the CV because the employer will not read much further if one does not have the experience required for the job. One puts oneself forward with the necessary experience. To return to what Senator McDowell said, experience in a particular area of law might be a vital part of the appointment that is required at a particular time. The word "experience" is very relevant in this case.
-----and I acknowledge his prowess as well as his experience. He spoke about skills and attributes and sought a definition. I direct him to section 50(1)(b) which defines the requisite skills and attributes in which he expressed an interest.
On the matter of experience, of course I recognise the importance of experience in many respects, but I draw Senators' attention to section 35(3)(ii) which refers to "an appropriate knowledge and appropriate experience of the practice and procedure" in the case of an appointment to the office of a judge. Later in the Bill, section 43(1)(a) states that the commission shall, in respect of each person whose name it has recommended to the Minister under section 40 or 41, provide "particulars of the person’s education, professional qualifications, experience and character". I firmly believe there is sufficient reference to the matter of experience to allow the commission to weigh it up in its deliberations. It is covered and there is no necessity to include further words at this stage, particularly in Part 8 which deals solely with the selection procedures and the requisite skills and attributes. As I said, these are somewhat different from the matter of experience, which is covered in the Bill, albeit in different Parts.
Section 35(3) deals with the Supreme Court, the Court of Appeal or the High Court, and most family law, for example, is not dealt with in those courts or at that level. Indeed, most criminal law is not dealt with in those courts or at that level. Section 35(3) is confined to the superior courts. In section 50 we are dealing with, I hope, a period in time in which specialist family courts will become the norm and District Court and Circuit Court judges will tend to specialise in those cases, rather than having family law litigants waiting for the afternoon while the television licence cases are dealt with in the morning. They are dealt with later in the same day by a judge who is understandably tired after a long list in the morning and who then has to listen to a highly sensitive and emotional family law case. It is very difficult. Most Members of the House would strongly favour the increased specialisation of family law, at least, as a type of appointment in which experience would be of great significance.
Section 50(2) throws some light on the amendment we have proposed. It states, "The power to prepare a statement of requisite skills and attributes under this Part includes a power to prepare different statements of requisite skills and attributes by reference to- (a) different judicial offices". Obviously, one might have to have different attributes to be a District Court judge, a judge of the Court of Appeal or whatever. The important part is paragraph (b) which states, "in the case of judicial offices in the same court, different classes of business in that court that it is reasonably anticipated a particular appointee to such office would deal with".That brings us to the idea of people being headhunted to deal with particular categories of business. It is in this context that the requirement that experience should be up there in big, bold headlines as relevant to a person's suitability for this particular class of work should be stated unambiguously in the legislation. I do not accept that section 35(3), which deals with the Superior Courts, covers family law cases at all. If the Minister intends to look at section 50(2)(b), I hope we will deal with people who are being recruited to act as judges in specialist family law divisions of both the District and Circuit Courts. I am not minded to agree with the Minister that the term "experience" need not be inserted in the relevant subsection.
The Minister has accepted the argument in section 50(2)(b), with reference to "judicial offices in the same court, different classes of business in the court". That relates to experience, so why should it not be clearly stated? The Minister said it is covered elsewhere in the Bill. In fact, "experience" is referenced three times in the Bill. If we accept his argument, however, it need only be mentioned once. In fact, it is not sufficient that it is mentioned in one section or another but not in all relevant sections. Unless it informs the whole process of the Bill, it is not adequate.
With reference to section 50(2)(b), it is commonplace when making appointments that there might be two persons who are eminently qualified but one does not have the experience required for the specific post. My colleague, Senator McDowell, articulated clearly that family law is a specialised, emotive aspect of the courts' work. Every week we hear reports on such cases on RTE radio. The experience required to deal with family law cases is different from that required for criminal law. Senator McDowell observed that a person who is tired after a morning of listening to arguments about television licence fees might not be particularly sympathetic when it comes to dealing with a very emotional and difficult family law case in the afternoon. If this Bill does what we intend it to do, it will make the courts a much better place. Having specialist judges dealing with issues is the right way to go, and experience is key to such specialism.
Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Niall Ó Donnghaile, Neale Richmond.
Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Anthony Lawlor, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Neale Richmond, Fintan Warfield.