Tuesday, 11 June 2019
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Paudie Coffey, Paul Coghlan, Martin Conway, Frank Feighan, Maura Hopkins, Anthony Lawlor, Pádraig MacLochlainn, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, James Reilly, Neale Richmond.
Section 52(2) states:
The published statement may set out different selection procedures in relation to appointments to—
(a) different judicial offices, and
(b) a particular judicial office where applicants already hold judicial office,
Will the Minister indicate the different selection procedures that will apply in respect of appointments to a particular office where applicants already hold judicial office? What does he have in mind in such cases?
The subsection provides that the published statement may set out different selection procedures in regard to appointments to different judicial offices. I fully understand why one might have different procedures for appointments to the District Court, Circuit Court, High Court, Court of Appeal and Supreme Court. However, in paragraph (b), does the phrase "a particular judicial office" refer to the Chief Justice, the presidency of the Court of Appeal or the presidency of another particular court? Or does it refer to a level of office, such as High Court judge? Assuming, for instance, that a vacancy in the Court of Appeal, as an ordinary member of that court, comes under the category of "a particular judicial office", then there may be different procedures where applicants for that vacancy already hold judicial office. How will this differential published statement operate where there are some applicants who already hold judicial office and others who do not? That is the question I am raising.
The wording of subsection (2) is a little sloppy. It would be sufficient to say, "The published statement may set out different selection procedures in relation to appointments to different judicial offices." That would cover it all because it enables the appointments commission to establish different selection procedures in respect of different judicial offices. Why is it necessary to include the second paragraph referencing "a particular office where applicants already hold judicial office"? I do not understand the need for it given that the first paragraph already gives the commission power to do different things in terms of different judicial offices. In addition, the wording of the subsection is quite opaque and certainly cannot be said to be written in clearly understandable English. It states: "...the subsequent provisions of this Part shall be construed and have effect in a manner that enables the setting out, in the published statement, of selection procedures that, in relation to the foregoing appointments, are different from one another." That is a mouthful.
Finally, subsection (3) states: "In addition to the selection procedures, the published statement shall contain a statement of requisite skills and attributes which stands approved under section 54." Without rehashing the whole argument again, there is no mention of experience, only the reference to "skills and attributes". Surely experience is the most crucial criterion?
I do not agree. The published statement may set out different selection procedures depending on the judicial office or, indeed, the procedures that may have been applied from time to time. It deals with the various offices, be it at District Court, Circuit Court or High Court level, and so on. Paragraph (b) covers a situation where the applicant may already have been a serving judge of the District Court, Circuit Court, etc. The statement setting out the selection procedures is something that may, on occasion, be done, depending on the commission. The published statement shall contain the statement in respect of the attributes and skills, in accordance with section 54. I do not see how the section can be called opaque, as Senator Norris described it.
Subsection (2)(b) provides that the published statement may set out different selection procedures in respect of appointments to "a particular judicial office where applicants already hold judicial office".For instance, take the case of a vacancy for an ordinary member of the Court of Appeal or the Supreme Court. Is a District Court judge to be given a different mode of selection procedure from, say, a senior solicitor applying for the job on the basis that a District Court judge is already the holder of judicial office, even though he is, so to speak, a number of rungs down the judicial ladder? Is section 52(2)(b) to be interpreted as really meaning that there can be different selection procedures in relation to applicants who hold judicial office rather than different selection procedures in relation to a particular judicial office? That is the ambiguity at which I am looking.
I can understand if there was a different selection procedure in relation to applicants who hold judicial office. In the way it is phrased, however, it refers to “a particular judicial office where applicants already hold judicial office”. I cannot understand what section 52(2)(b) actually means. It seems to be opaque.
It would be fine if section 52(2)(b) read “different procedures in relation to appointments to different judicial offices and to applicants who already hold judicial office”. However, when the words “a particular judicial office” are inserted, I am just wondering what practical effect that particular formulation of words means. In other words, does one say that an ordinary member of the Court of Appeal can be the subject of different selection procedures where District Court judges are applying or does it mean something else?
I believe section 52(2)(a) covers section 52(2)(b) with the words “different judicial offices”. More importantly, I am not sure why there should be a different selection procedure just because somebody is a judge. What is the point of that? Would the fact that some applicant had already held a judicial office be a help or a hindrance? What happened to the whole notion of merit? I would have thought people would be promoted on merit rather than on anything else.
I dealt ad nauseamwith the points raised by Senator Norris.
The wording of section 52(2)(b), “a particular judicial office”, is a distinction from the office already held. If the word “particular” was not there, then the subsection would read a “judicial office where applicants already hold judicial office”. This will be a particular judicial office which will be the one to which the vacancy shall apply.
As Senator McDowell pointed out, take the case of a judge, a person from a lower court and someone who had not had a judicial appointment all in the same pool. Apart from anything else, say a High Court judge failed to get appointed to the Court of Appeal and somebody from a lower court was appointed instead, then there would be reputational damage to the High Court judge. I am a little confused as to the legality of having different selection procedures for the same position. Would that section find itself in front of the very people we are trying to appoint?
No. It is clear the committee can recommend procedures that may, from time to time, vary between offices, no more and no less. There is no conspiracy. It merely allows the committee to recommend certain procedures from time to time.
I can understand the import of the word “particular”. I am sure it would be enough to say, if one must, “a judicial office where applicants already hold judicial office”. I do not see the point of the word “particular”. It also suggests there may be circumstances in which it is not a particular office and we will not bother with this difference. I do not understand it.
As Senator Norris said, if the word “particular” was taken out where it first appears and stated “judicial office”, then one could put in “where applicants already hold a particular judicial office”. In other words, one could differentiate between a District Court judge and a High Court judge.
While it is okay for the Minister to state in this Chamber that there is no conspiracy involved, the people to whom this applies may interpret that there is some sort of conspiracy going on and seek to have this part of the legislation examined before the courts. One cannot have different selection procedures for the same post. The selection procedure has to be the same for all applicants. I cannot see how this will work under this particular section.
I slightly disagree with Senator Craughwell on that. My view is that one can differentiate between serving judges and other persons who have never been appointed. I have no problem with that as long as there is some capacity to distinguish between different types of serving judges applying for judicial office. It is strange to say that a District Judge who wanted to be an ordinary judge of the Supreme Court should be in a radically different position from, say, a senior solicitor or senior barrister who had practised in those courts for 25 years and that the latter should be interviewed but the judge should not. That seems to be a strange situation.
I find myself disagreeing with the senior counsel, former Minister for Justice, Equality and Law Reform and former Attorney General on this particular issue. I am just going back to public appointments procedures. It is almost written in stone that the procedures have to be the same for all applicants. If I were in a competition where a person who currently holds a judicial position could be excused from some part of the selection process, I would regard the judge as having one leg on the rung of the ladder before I even got into the race. I am not sure I agree with the senior counsel but who am I to question him?
I merely want to state, yet again, that what we are doing here in terms of the practice and procedure in respect of this statement may well vary from time to time, as indeed it might be desirable to do so between the procedures that apply in the form of selection for somebody who does not have a judicial experience and somebody who has.The section refers to "a particular judicial office". It is worded in this way in order to distinguish between the office held by an applicant who is already an officeholder and the new office to which the vacancy applies. In other words, the term "particular judicial office" refers to circumstances where applicants already hold some form of judicial office. I do not see the particular difficulty that Senator McDowell seems to be suggesting and I cannot hold with Senator Craughwell on this matter.
I draw the Minister's attention to and seek some understanding of the legislative intention here. Section 11(8)(a) provides that persons such as consultants and advisers can be contracted or appointed to "advise and assist the Commission in its consideration of applicants at a preliminary stage in the course of the selection procedures". Section 11(8)(b) refers to the provision of an "an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures". Is it intended that outside bodies, advisers, consultants or other persons covered under section 11(8), will be carrying out evaluations of serving members of the Judiciary?
I am extremely concerned about that. I do not want to go back over our previous debates but it is frightening to think that serving members of the Judiciary might be vetted by management consultancy firms as to their suitability and that this can be part of the procedures laid down. We will not invoke names. I am concerned that, under the Bill as it is currently drafted, it is possible that major management consultancy firms could be brought in to look at High Court judges and advise the commission as to their suitability.
I agree with Senator McDowell. Who is to say that the ethos of a particular management agency might not be to strongly support Fianna Fáil, Fine Gael or the Labour Party? Who knows how independent these companies are? I do not.
Colm Burke, Paddy Burke, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Frank Feighan, Maura Hopkins, Anthony Lawlor, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, Joe O'Reilly, James Reilly, Neale Richmond.
I do not agree to that. These are separate issues which should be discussed separately. Each of the amendments is significant. They deal with different areas and have different emphases. I do not agree with them being grouped.
I move amendment No. 97da:
In page 34, between lines 10 and 11, to insert the following:
“53. No statement under this Part shall provide for the interviewing of any applicant who is a serving judge in the Superior Courts in respect of any application to the Commission by him or her in respect of any vacancy in a judicial office in any of those courts.”.
I want to make clear that serving judges in the superior courts should not be interviewed by the commission in respect of any vacancy for a judicial office in any of those courts. This is a matter of fundamental importance to me. As I have said on a number of occasions, and I do not want to unduly emphasise or be repetitive in respect of this, every member of the High Court is ex officiocapable of functioning, at the invitation of the President of the Court of Appeal, as an ordinary member of that court and is capable of being asked by the Chief Justice to serve on the Supreme Court. One is ex officio qualified to serve, if invited, as an ordinary member of the Court of Appeal or the Supreme Court if one is a member of the High Court. One's appointment to the High Court carries with it the obligation on the part of the Government that chooses one in the first place not to appoint somebody who would not be suitable to serve in the Court of Appeal or in the Supreme Court because, under the law, any person who is a High Court judge may, if invited by the President of the Court of Appeal or the Chief Justice, serve in the Court of Appeal or the Supreme Court as an ordinary temporary member of that court for any particular case. It follows as a matter of law and logic, in my view, that one is already deemed suitable to be a Court of Appeal member or a Supreme Court member to determine any particular case.That raises the very obvious question of what kind of questions one could be asked by a committee charged with interviewing applicants that would be in any way relevant to the outcome of the deliberations of the judicial appointments commission. What subjects could it discuss with them? One thing it cannot discuss with a candidate is what one's attitudes are to matters legal. We will deal with that in a subsequent amendment. What can it ask a candidate about? Can it ask about one's background? One's background is irrelevant. One is already a member of the High Court. What possible subject could there be at one of those so-called interviews of a judge? Can it ask whether one plays golf and what is one's handicap?
What possible questions could one put to a judge of the High Court to determine whether he or she is suitable to be recommended for appointment to the Court of Appeal or the Supreme Court? Are we going to ask the candidates if they are energetic? Are we going to ask them if they take long with their cases? Are we going to ask them if they have many reserved judgments?
What kind of questions would it be proper for an interview committee to put to a serving judge? That is the reason I have at all times opposed the idea of requiring serving judges to go through the evaluation procedures this Bill proposes. I would like to hear, if somebody could tell me in the course of the next 40 minutes, what kind of questions could be put by way of interview to serving judges that would assist the commission in determining whether to rank them among themselves or alternatively to prefer them or not to a non-judicial applicant. I do not believe there are any questions or topics that are in the remotest way relevant. It would be bad enough if one asked them as part of the application process to do a little essay about why they should be appointed, but what sense would there be if one starts to interview them on their attitudes to social issues or ideological views or trying to probe them to see if they came from a fee-paying school or a non-fee paying school with a view to getting diversity on the Bench? What sense is there to any of that? In any event it would be information that would be available from their curriculum vitae, which I presume would have already had to accompany their application.
I appeal in particular to Senators Conway and Noone to tell me what questions they believe could be lawfully, correctly and appropriately put to a woman member of the High Court as to why she should be made a member of the Court of Appeal. Let us remember that under the daft procedures of this Bill so far, there has to be a majority of lay people on the interview committees. What question could they possibly ask an applicant?
I cannot understand any value emanating from an interview process, but I can see a lot of potential bias creeping in on the part of the interview process. If the commission is trying to work out which of three judges is the most meritorious and to rank them in order of preference, what interview process would lead them to form an opinion along those lines?
Following on from my colleague's contribution, assuming we find questions, those questions would have to have a marking scheme associated with them in order to be able to list the best answers from the worst answers. I find the whole thing unbelievable at this stage. Somebody will have to draft the questions and, as Senator McDowell said, what questions will we ask and how do we decide? Senator McDowell adverted to the judge who gets through a lot of case work very quickly versus the judge who takes a lot of time over cases and reserves judgment quite a lot. At the end of the day is one less productive than the other? Are we measuring them by the speed at which they can drive cases through the courts? Finding questions that would not be biased in some way is going to be extremely difficult. From what I can see, having found the questions, finding a marking scheme that allows one to mark the responses to those questions in order to prioritise people would become a total and utter nonsense. I am very interested to hear the answers to Senator McDowell's questions.
The idea of interviewing a judge of the superior court is completely redundant. It has already been decided that he or she is qualified because he or she is able to sit on the High Court. They are automatically deemed to be qualified. My colleague, Senator McDowell, asked my two Fine Gael colleagues what the questions should be. I think that question would be more appropriate-----
Yes, that is just what I was going to say. I have the greatest of pleasure in agreeing with Senator Noone. I think that the question would be more appropriately directed at the Minister.
If the interview committee decides that a judge is unfit to be in the Supreme Court, does that mean that he or she can never sit again? How could an unfit person sit in the High Court? The thing is absolutely mad. One finds somebody is unqualified and then he or she happily goes back to sit in the High Court as if nothing had happened. It is a complete and utter nonsense and I imagine the Minister knows it.
-----that jars with me personally. It gets to me in terms of an aspect of this Bill, and I have made no secret of that in the past, but I find the points made are kind of – I do not wish to use the word but I cannot find a better one - "ridiculous".
Interview processes apply to all public jobs. I know plenty of people who have gone for positions where they had no opportunity to be interviewed and would have wanted to be interviewed to point out attributes they have that may not necessarily be apparent to everybody on an interview board.
That would give them an opportunity to highlight what their personality is like speaking one-on-one, their organisational skills and any other skills that may be deemed relevant to the job depending on the particular judicial appointment. Arguably, the president of any particular court would require skills that another member of the court may not necessarily need or have.With all due respect, the idea that one might be trying to portray an interview process by highlighting the questions which may be asked could be turned on its head and seen as an opportunity for a candidate to put their best foot forward. I have heard some points with which I agree but this is just daft.
I have not.
On the point that they are deemed qualified, I am already qualified for any job in any legal firm in this city but it would still want to interview me to see if I would do a good job and explain why I would bring X, Y and Z to a job.
If I was going to another firm, I would be interviewed for that job. I do not see why a member of the Judiciary should object to being interviewed for a job. It might well provide an opportunity for candidates to put across points which in the current system they cannot.
That is not casting any aspersions on its expertise. I knew of a situation in a local authority where a gentleman was acting chief executive officer for several years. He presented for interview but did not get the job.
Is Senator Norris suggesting a High Court judge is effectively acting as a judge in the Court of Criminal Appeal?
In an interview process, nobody in the State should be above and beyond engaging in a discussion when applying for a position. The President, the top position in the State, has to go for election, as does the Taoiseach. I do not see any reason a member of the Judiciary should not be interviewed. Nobody is questioning their skill sets and absolute knowledge. If one is talking about bringing the people with one, transparency, openness, accountability and a modern way of doing business, nobody should be above having an engagement ahead of taking up a position.
I think we are losing the run of ourselves.
First, a member of the High Court, be it a man or a woman, is already, as a matter of law, deemed not merely capable but entirely qualified to serve at the invitation of the Chief Justice or the President of the Court of Appeal in either of those courts.
Accordingly, what is the function of the commission in trying to decide as between one, two or three judges that one is more qualified or more suitable than another to be appointed a judge of the Court of Appeal or the Supreme Court? I have not had a satisfactory answer to the point that I have raised.
Senator Noone said there are certain aspects of oneself that one might like to bring forward to the attention of the commission. These could be put in one’s CV. If one thinks that it is relevant that one was an active member of the local GAA club, then it could be put in a CV. However, it is not really relevant to whether one High Court judge or another should be appointed or one is more suitable than the other if one is an active member of their local Tidy Towns committee.
Senator Noone said the organisational skills of somebody to be a president might be different from that of an ordinary judge.
The Minister proposes that the presidencies of those courts should be determined by an entirely separate process in which the commission would have no function whatsoever. The organisational skills factor does not really apply.
Senator Noone said maybe there is some aspect of oneself that one would like to put forward to the interview committee. What kind of aspect could be put forward which would be relevant to the question of deciding whether one was more or less suitable than two other judges and they can be ranked in the order of preference?
Another of the Bill’s provisions requires a record to be kept of every interview.
I presume that is for the purpose of ensuring that the interviews are more or less equal for every applicant and that the board did not ask somebody about their experience in the GAA when the other person was down as the head of their local bridge club. I presume it is to ensure they cannot be asked questions which are unfair.
However, we are fairly clear that one cannot ask a candidate how they would decide cases or if they are generally pro-plaintiff or pro-defendant in insurance matters. One could not ask them a broad question of ideology as to whether property rights are more important than social and economic rights.
-----and assist the appointments commission in deciding that one person was more suitable than another, I would like to hear what the questions are. So far, I have been told by Senator Noone that maybe somebody would like to put forward something about him or her which would not otherwise be apparent. There is a place to do that, namely, in a CV. If it is supposed to be that one is a more charming person or a smiler person when the other person is a scowler, that is not the basis on which merit-based decisions should be made in respect of appointments. The demeanour of somebody could be quite irrelevant to their potential excellence as a judge. I speak from some experience that many judges-----
-----and people who have applied to be judges are very charming, social and agreeable people. Some people appointed to the Bench would not immediately fit into those categories. It says nothing about their capacity to be a good or bad judge thereafter.
When one looks at the attributes provided in this section, one asks how they will be evaluated by interview. For instance, on the necessity to be independent, what questions can one put to ascertain if a candidate is a truly independent person? Is the board going to ask them role-playing questions to see how they would put up with a telephone call from the president of the court or deal with adverse newspaper comments on their cases.One cannot possibly ask them those questions because of their independence. All of this brings us back to the fundamental point that serving judges in the superior courts should not be put through a process which ignores the fact that they are already deemed by law to be suitable to carry out the functions in respect of which they are applying to be considered for appointment by the President. The idea of holding interviews for such persons is redundant.
In dealing with the previous section the Minister seemed to imply that the procedures committee might recommend to the commission that there not be interviews at all, but I am not sure whether that is what he is saying. If it is the case - this is the point on which I did not want to prolong the debate on the previous section - it is for the Houses of the Oireachtas, not the commission, to decide that issue. If it is to be the law that judges will be exempt from having to attend an interview, it is for us to decide that issue. It is not for an independent commission to decide that it will be done one way for a while and that we will then change the pattern and go back using to another way because we prefer live interviews. It is for the Houses of the Oireachtas to decide the appropriate procedure to be used or, if they are so persuaded, that there should be no interviews for serving members of the superior courts because holding them would serve no useful function.
As my colleague said, where a judge is interviewed for the first time before he or she is appointed to a superior court - he or she may make it to Chief Justice - his or her organisational skills will be so important. How are those organisational skills to be tested at the point of entry if judges are not to be interviewed as they move along? We are back to the questions an individual should be asked. In over 40 years at work I have never met anybody who wants to move into a promotional position who has said he or she wants to be interviewed because there are things he or she wants to say. At that stage one's record speaks for itself. Why would any judge of the High Court want to go through an interview process to be appointed to the Court of Appeal or the Supreme Court? Why would a judge want to put himself or herself through it? He or she has already been through a selection process and appointed. Why would he or she say, "Hang on a minute; I want to do an interview. I want all of those in the commission to know what a wonderful person I am and about my membership of the GAA," and whatever else Senator McDowell was talking about. I cannot see the rationale behind it. I would like Senator Noone to explain what exactly she sees that is going on.
Senator McDowell was not quite accurate in saying throwing a new can of worms into the equation, mentioned by Senator Craughwell, was a mixed metaphor because it is a fact of natural history that worms can divide in two.
I listened carefully to Senator McDowell. Of course, my ultimate point is that the amendment goes too far. The Senator goes too far in his opposition to the holding of any form of interview.
I find Senator Craughwell amusing. A checking of the record will show that he, more than anybody else, has spoken about his interview prowess, albeit in dealing with education or Army matters, or both. Until this amendment, he seemed to be pro-interview.
The amendment in the name of Senator McDowell is in keeping with the concerns he has raised continuously in the past 14 months. This time last year he stated he had "no problem with people who want to become High Court, Circuit Court or District Court judges [albeit] for the first time being asked to go through an interview procedure or being looked at by a commission to see whether they are suitable to be appointed."
The Senator had no difficulty with the principle of being interviewed. However, he has a huge problem with a sitting judge, in applying for what might be described as a "promotion", being interviewed. Looking at other jurisdictions, there is a facility which allows such an interview to take place, for example, in Scotland. If one looks at the current judicial appointments board system, there is provision for holding interviews. What we are doing is facilitating the commission in holding interviews in the same way we facilate the holding of interviews under the current judicial appointments board system.
As far as sitting judges are concerned, I have said on numerous occasions that I intend to revisit the means by which we arrive at selecting those to be appointed to the three most senior posts of Chief Justice, President of the High Court and President of the Court of Appeal. I have indicated this time out of number, but I have not been able to do it because we have not yet reached Report Stage. In fact, I was hoping we would complete Part 8 of the Bill today and that we could get to Part 9 and complete other matters on Thursday in order that we would then have the remainder of the session to complete Report Stage. Perhaps we might be able do so within the next two weeks. That is still my intention and I am asking for the co-operation of Senators in that regard. I will come back on Report Stage with a formula to be used in selecting the persons to be appointed to fill the three most senior positions. Senator McDowell mentioned the positions of president. In fact, only today, the Government approved the appointment of the successors to the current President of the Circuit Court, Mr. Justice Raymond Groarke, and the current President of the District Court, Judge Rosemary Horgan. An advisory group to the Government, comprising the Attorney General, an individual from the Top Level Appointments Committee and a senior experienced expert judge, held a series of meetings. Having sought expressions of interest and placed an advertisement in the national newspapers, it duly recommended to the Government a number of names, from which it ultimately made a selection. I intend to propose a similar formula on Report Stage. In the meantime, I decline to accept the amendment which goes too far. Nobody is mandating the holding of interviews; rather, as happens in similar jurisdictions, there may be provision for the holding of interviews should the commission deem it to be appropriate in the circumstances.
The Minister has stated I have consistently argued that sitting members of the superior courts should not be obliged to go through an interview process or to the commission. That is my view. The Minister then states he is considering an amendment under which at least the three most senior positions would be exempt from the process.Does that hint at ordinary members of the Supreme Court also being included? Does this "at least" mean that anything more than "at most" those three positions should be the subject of a different procedure?
The Minister also states that he has been precluded from putting forward his ideas for section 44 as a result of the length of this debate. Alas, nothing could be further from the truth. He has at all times - as have I and other Members of this House - had the right to table amendments at any point during the past year. However, he is refusing to so until Committee Stage is disposed of. That is his choice. What he is attempting to do is to say that he has somehow been prevented from indicating his position on this matter as a result of the length of this debate, whereas he could certainly have tabled his amendment to section 44. The matter was well signalled in advance when we dealt with it and there is nothing stopping him from circulating his proposed text for section 44. That text would have been of assistance to many of us when we dealt with the other sections that refer to people appointed under section 44, particularly as we do not know the Minister's intentions in this regard.
I wish to place on record the fact that it is not correct to state that the Minister has been precluded in any way from indicating his proposed arrangements for the three presidencies of the superior courts.
The Minister further states that at least those three positions will be dealt with by means of an amendment from him. Will it be no more than those three positions? We are being deliberately kept in the dark on that issue. I have stated again and again that I see no reason whatsoever for the commission having any function in determining who becomes an ordinary member of the Supreme Court. Put simply, this is a matter for the Executive. It is also a matter to be decided on the basis of criteria which the commission is not entitled to take into account. How many times have I said that? The commission is not entitled to state, "Mr. Justice McDowell is a liberal and we recommend him on that basis" or "Mr. Justice McDowell is a conservative and we recommend him on that basis." That is ultra viresof the commission and the statutory scheme but those are precisely the criteria by which the Supreme Court would decide whether it wanted me to serve in the Supreme Court if I was in the High Court or the Court of Appeal. What would my attitude be to personal injuries or to matters of European and Irish law where they conflict? Those are the issues the Government should take into account when it is composing the membership of the Supreme Court and they are the precise issues about which the commission cannot ask questions or form a judgment. In actuality, it is not even suited to forming a judgment.
This applies not merely to the lay members of the commission, it also applies to the members of the Judiciary who will serve on this proposed commission. It is none of their business whether the State decides to appoint another liberal or another conservative to the Supreme Court. It is for this reason that I have championed the idea that the so called promotion - I do not like that word - of people to the higher courts among the superior courts is exclusively a matter for the Executive, having taken the advice of the Attorney General, the Minister for Justice and Equality and anybody else from whom it wishes to take advice and engaged in its own consideration, to deal with. It is nobody else's business whether the Executive decides to appoint a liberal or a conservative to the Supreme Court. Nobody else has a legitimate voice to express in respect of that matter. Nobody else is ex officio. The Chief Justice or the other members of the commission cannot be told to-----
Yes. It is not open to the Chief Justice, as a functioning member of this commission - if it is ever established - to state that he or she is opposed to an appointment or does not favour a particular judge because he or she is a conservative or a liberal. That is and always has been the fundamental flaw with this legislation. That is why, when we raised the issue of what useful purpose an interview could serve, we concluded that it could only be to give the non-legal members of the commission an opportunity to eye these people up and form superficial conclusions about them in the course of conversation. It serves no useful function whatsoever.
The Courts and Courts Officers Act 2002 was enacted by the outgoing Government of the day in the wake of the controversy surrounding the Reynolds-Spring coalition due to a judicial appointment. That Act states that where somebody is already a judge, there is no need for him or her to have anything to do with the Judicial Appointments Advisory Board. The implication is that these people are already qualified and should not be the subject of any requirement to make applications to an outside body to determine whether they should be recommended for particular positions. The Judicial Appointments Advisory Board legislation specifically provides for interviews. The board has always had that opportunity to interview people who it does not know. The one thing the Judicial Appointments Advisory Board was at least acknowledged by its very title to be, was purely advisory in nature. It it has been a constant undertone to the political debate surrounding the legislation before us that it is more than advisory and that it is intended to produce particular results and to put before the Government choices which are embarrassing not to endorse.
I have listened carefully to the debate. I have listened to the Minister and Senators Conway and Noone and I note that none of them has come forward with any useful purpose that an interview, as opposed to a CV, could serve. I note the provisions in the Bill which state that a record should be kept of every interview. I presume that is with a view to ensuring that there is equality of treatment for interviewees. Otherwise, I cannot see what particular purpose would be served by preserving the marking scheme.
I do not believe there is an analogy between a competitive process such as that relating to Top Level Appointments Commission, TLAC, appointments in the Civil Service or to the appointment of CEOs of vocational educational bodies and the appointment of somebody to be an ordinary judge of the Supreme Court.I see no analogy whatsoever between the two. There is an absolute distinction in constitutional terms, and the Cabinet is under no obligation to conduct its duty of advising the President by reference to any particular statutory framework. I have made that point again and again. The Cabinet is free to appoint people from the serving Judiciary to the Court of Appeal and the Supreme Court, and is obliged to do so in accordance with its own judgment. It can take advice from anybody it wants but it must, in the last analysis, be free to decide, for example, that it wants liberals rather than conservatives, more women rather than fewer women, more men rather than fewer men, or anything else. That is entirely the constitutional prerogative of the Executive and it is not capable of being determined from the outside by legislation. I am disappointed that, in the absence of any explanation as to what useful purpose could be served by an interview process, we are failing to take the obvious step, which is to excuse sitting members of the superior courts, all of whom are capable of functioning in all of those courts as a matter of law, from submitting themselves to an interview process.
I have one final issue to raise, which the Minister referred to on a previous occasion. Under the Government's original Bill, the shortlist of three was supposed to simply set out three names. It was an Opposition amendment which inserted the provision about ranking the candidates in terms of preference. I did not have an opportunity to check the Dáil record, so I do not know whether the Minister opposed or accepted that amendment on Committee Stage. It is now being put forward as a feature of the Bill which answers some of the criticisms of it. Is this a road to Damascus type of conversion to the ordering of candidates in terms of the commission's preference?
I am surprised by its inclusion because it is something of a departure. It was not part of the architecture of the Bill as originally intended. I wish to know whether the Government accepted or opposed the amendment on Dáil Committee Stage, irrespective of whether it had a majority in the committee.