Tuesday, 26 November 2019
Judicial Appointments Commission Bill 2017: Report Stage (Resumed)
The Minister for Justice and Equality is very welcome.
Amendment No. 5 is in the names of Senators Norris, Boyhan and Craughwell. It arises out of Committee proceedings. Amendments Nos. 5 and 6 are related. Amendment No. 6 is a physical alternative to amendment No. 5. Amendments Nos. 5 and 6 and may be discussed together by agreement. Is that agreed?
The intention of the amendment is to remove lines 20 and 21 so that lay member means a layperson who is a member of the commission and includes a chairperson. This is to get rid of the definition of "lay member" from the Bill and to stop an outrageous situation. It is the particular idea of the Minister, Deputy Ross, that there should not only be a majority of laypeople but also that the chairperson should be a layperson. It revolts the intelligence that this should happen. I do not see any reason, in a professional situation, one excludes the majority of the members of the profession from making the decision, including the chairperson. It is some kind of wild Stepaside notion.
I support Senator Norris's amendment. This body, which is intended to be established for the long term, is going to be one where the chief qualifying attribute for the chair is that he or she, when appointed eventually-----
-----has no qualifications or experience of how the legal profession or the legal system works of a hands-on type. It can be argued that the Bill envisages that, among the laypeople, people with knowledge of how the courts impact society will be included and that includes perhaps people from the insurance area, people concerned with family law and the like. We are still stuck with the fundamental issue, which is that we are setting up this commission on the basis that the chairperson may not be a practising barrister or solicitor, a judge or the Attorney General. The question that we have to ask ourselves in that context is why those people are disqualified from chairing the commission and having a casting vote, if it ever should come to that.
I have come to the conclusion that there is no valid reason the commission itself should not select its own chairperson. I cannot see any reason, whether it is a minority or majority of laypeople on the commission, why they should not, among themselves, select their own chairperson. Why is it important that the chairperson be selected by a separate process and, so to speak, imposed upon the commission? Why can the commission not select its own chairperson? This reminds me of the process where we set up a Seanad reform implementation group recently. It is noteworthy that in that context the Taoiseach proposed that no less a person than myself should be the chairperson of the group.
One person opposed the proposition and that was Minister, Deputy Ross. He proposed that it was entirely wrong that the chairperson should be decided for the group and that it should be decided by the group. Indeed, he attended the first meeting.
He attended the first meeting with a view to ensure that I was not made chairman of the group. Happily, that did not happen and his interest waned in the group's activities thereafter. When I say "waned", I am being very charitable; It disappeared.
I return to the principle of the matter. The commission should be allowed select its own chairperson or that somebody ex officioshould be chairperson. Those are possibilities.
Senator Norris's amendment simply is designed, as I see it-----
-----to say that the disqualification of a person from being a chairperson, on the grounds that he or she is either a lawyer or a member of the Judiciary or whatever, should be removed from the Bill.
There may be some case to be made for having the chairperson not be a judge. That case could be made because the Bill in other provisions envisages the chairperson being called before Oireachtas committees to explain the operation of the commission in certain circumstances. It could be argued that it would be a problem for the separation of powers if a serving judge had to explain to Oireachtas Members how the group is functioning, or defend its performance or whatever. I strongly believe that there is no reason a solicitor, nominated by the Law Society, could not be chosen by his or her colleagues on the commission if he or she was likely to be an effective person in that context.
I do not see a strong case being made for requiring the chairperson to be a layperson. I believe that Senator Norris's amendment is apposite and appeals to common sense, and I strongly support it.
I do not tend to speak in debates on the Bill but I want to say that while I cannot vote for it, I agree with the amendment. The one major difficulty I have with the Bill is that members of my profession, or members of the profession of the Minister and Senator McDowell, are ineligible to be chair of the commission. I do not see the logic in it. Many of my fine colleagues throughout the legal profession would be completely objective enough to chair the commission. I agree with the point that having a judge as chair might be inappropriate. Often I am conflicted about this legislation but I cannot sit here and not say that I really do not like the fact that a member of either branch of the legal profession would not be allowed to chair the commission. I want to put this point on the record.
I welcome the Minister to the House. I also speak in support of amendment No. 5 in the name of Senator Norris. I thank Senator Noone for the very clear outline of her concerns about the Bill and her support in principle for the amendment. It is sensible. It is also an issue to which we will return when we come to amendment No. 7 in the Minister's name and amendment No. 30 tabled by the Labour Party and supported by Senator Norris. It also looks at the issue of the chairperson of the commission.
As I said on the last day, I have a fundamental difficulty with the approach in the Bill. It appears the sole criterion to be qualified to chair the commission is that a person was never a judge and never worked as a lawyer for the State and if they ever practised law that they gave it up at least 15 years before. This is the basis on which the Minister's amendment No. 7 is outlined. It seems to be a particularly extreme definition of a layperson. One wonders why such an uncompromising approach is being taken on this.
On Committee Stage, I spoke about the fundamental difficulty I have with the process through which the Bill is being put to us. It is coming from a position where there has been absolutely no attempt at compromise and no sitting down to speak to those of us in opposition who have no difficulty with reform in principle but would like to see negotiated reform of the judicial appointment process which is sensible and does not get embedded in rigid positions, and which recognises that, as with the appointment of other professionals such as engineers, architects and academics, we enable and facilitate the exercise of professional experience and expertise while also having lay participation. As I said in the previous debate on the Bill, minority lay participation ensures integrity and even-handedness in the appointment of hospital consultants but we do not have this exclusion of people with expertise and this very particular definition of a layperson that we see in amendment No. 7. Amendment No. 30 would address this if it were passed. In the meantime, I will certainly support amendment No. 5.
An obvious compromise proposal for reform was put forward in the Dáil in Deputy Jim O'Callaghan's Bill. It had a sensible approach to reform. It provided for a commission with a well thought-out mixture of competencies that would enable the application of legal expertise and experience while also allowing for lay participation and the participation of nominees of key entities, such as the Irish Human Rights and Equality Commission and the Free Legal Advice Centres, FLAC. There was also provision for gender balance in the commission, which is the subject of some of my later amendments on Report Stage and which we also debated on Committee Stage.
We are not against reform. We want a sensible negotiated reform based on sensible compromise that enables the exercise of experience and expertise and does not have a knee-jerk reaction against expertise in the way in which the Minister's proposals appear to be set out. In this context, I support the amendment of Senator Norris.
It will come as no surprise to Senators that I do not intend to side with them on the amendments. This issue was the subject matter of endless hours of debate not only here in this House in the presence of the current group of Senators who now propose amendments but also in the wider Oireachtas. I made it clear then and I make it clear now that the shape and form of the Bill as originally drafted included specific reference to a desire on the part of the Government to ensure there would be a lay majority and a lay chair who are not persons with judicial experience and not persons who are members of the Bar or the Law Society but laypersons in the sense of being non-judicial figures or non-lawyer figures. I do not intend departing from this.
I am not sure whether Senator Noone said she was going to vote for the proposal or not. That would represent something of a new departure in the legislation.
I do not have very much to say but it seems completely idiotic to disqualify the most qualified people. That is the way the Government wants to go but I do not agree with it. I commend Senator Noone for her honesty and openness-----
-----in saying she disagrees fundamentally with this ridiculous policy of the Government. It is an honourable thing to do. I do not expect her to vote against the Government and the Minister knows damn well that she will not be able to do that but she would if she were able. There is no question or doubt that she would. There is no enthusiasm whatever on that side of the House for the Bill. It is a complete, utter and absolute waste of our time but nothing to what happened previously when I sat for an hour and a half listening to the flatulences of my colleagues. The only contribution worth a solitary damn was that of Senator Mulherin, who raised a series of very important issues. That is part of parliamentary procedure; we have to sit, listen and take it. Sometimes we give it out and other people think we are talking nonsense.
Jerry Buttimer, Martin Conway, Paul Gavan, Billy Lawless, Anthony Lawlor, Tim Lombard, Pádraig MacLochlainn, Ian Marshall, Gabrielle McFadden, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Brian Ó Domhnaill, Niall Ó Donnghaile, Neale Richmond.
On a point of order, the Leas-Chathaoirleach may indeed have ruled on the matter. I am not questioning his integrity. However, I did not think he had done so and I intended to speak on amendment No. 6. Is the Leas-Chathaoirleach saying I will not have an opportunity to do so?
I move amendment No. 6:
In page 8, line 21, after "chairperson" to insert "where the chairperson was a lay person at the time of his or her appointment".
My amendment is somewhat different from that of Senator Norris in that it does not exclude the possibility that the chairperson may be a layperson but instead proposes that the definition of "chairperson" be included in the definition of "lay person" where the chairperson was a layperson at the time of his or her appointment. The purpose is to introduce flexibility and allow for the possibility, for instance, that a person who is appointed to the position of chairperson might thereafter be in the process of studying to be a lawyer or switching from one profession to another. It also covers a situation where a person who is not a judge is thereafter appointed to be a judge. For example, a legal academic who is a member of the commission and is subsequently made a judge should be capable of becoming chairperson of the commission. Subsection (1) sets out that a layperson is a person who does not hold, and has never held, judicial office, is not and never has been the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor or a law officer, and is not, and in the relevant period specified by subsection (2) for the purposes of this paragraph, was not, a practising barrister or a practising solicitor.
Academics should be capable of being chairperson of the commission and of being appointed to judicial office and retaining their position as chairperson notwithstanding their being a lawyer.
My second point is one the Minister may tire of hearing but which he never deals with in a substantive response. I have repeatedly said in the course of this debate that the Minister has brought proposals to Government for the appointment of excellent people as judges, people whose appointment has excited absolutely no controversy of any kind whatsoever and who are generally accepted to be highly qualified and excellent people. The Judicial Appointments Advisory Board which recommended these people to the Government for appointment has, as far as I can see, been chaired at all material times by the Chief Justice. One might ask whether that chairmanship by the chief Justice is a good thing or a bad thing. Is it giving rise to inferior candidates being recommended to Government or is it inhibiting people who might otherwise apply for judicial appointment - perhaps they would apply to the commission, if it is ever established - from applying to the Judicial Appointments Advisory Board?
The problem with this whole enterprise is that the answer to these questions is obvious. The high-quality candidates the Minister has proposed to the Cabinet for selection have been recommended in the main, I presume, by the advisory board, which is chaired by the Chief Justice. Neither the current incumbent nor his predecessor has been a negative influence on the type of person who is available or had any type of dampening effect on the willingness of people to become judges. I would go one step further and wager that some of the excellent people the Minister and his colleagues in Government have appointed, notwithstanding the squeaking of protest from one member of the Cabinet about appointments being made at all, if the media are to believed, would never have applied to the proposed judicial appointments commission if it were in existence. Some of them would have declined to put their names forward for a number of reasons.
It was the practice when I was Attorney General and Minister for Justice, Equality and Law Reform, and has continued recently to be the practice, as I understand it, that there was an element of talent spotting and persuasion of people who might not otherwise, off their own bat, seek to be judges. Rather than the entirely passive idea proposed in this legislation, the practice has been that people were approached and asked if they would put their name forward to the Judicial Appointments Advisory Board on the understanding that they would be favourably considered if the board approved their application. There is nothing wrong with that. In fact, there is everything to be said in favour of that regime.This Bill sets out to dismantle it and to replace it with a totally different regime where it is not considered proper for the members of the commission to go hunting for people to become judges. The whole thing is passive. The question of having conversations with people and urging them to apply for judicial office is imperilled by the canvassing provisions later in the legislation. Maybe I am straying slightly away from the point of the amendment.
The point of the amendment is simple. It is to point out to the Minister that the presence of the Chief Justice, as chair of the advisory board, has had no negative effect whatsoever on the quality of people appointed. The present system is much more likely to produce good appointees than the proposed new system.
We will come to the other provisions later that deal with the composition of this board. The Minister said that there is a policy decision that the chair is to be a layperson and that there is, effectively, a policy decision that the Chief Justice is not to chair this process in the future. I ask him, in all honesty and putting his hand on his heart, is there any good reason to introduce that change in the law? Has the presence of the Chief Justice, as chair of the JAAB, had any detrimental effect or any disincentive effect on a top talent becoming available to the Government for appointment? I strongly believe the answer has to be that it has not. I believe there is no good reason to do this except some kind of mad ideological view that the Chief Justice, who has presided over the JAAB since its inception, should not hold the job, crucially, because of the suggestion somehow that judicial cronyism comes into this and that the Judiciary are a self-perpetuating kind of priesthood who select and favour themselves in some way. If my suspicion was just purely a suspicion, that would be one thing. One only has to look at a book co-authored by the Minister, Deputy Ross, in which he made that very charge against that Judiciary. He pointed out that Chief Justices attended other judges children's weddings and so on.
It is part of this unspoken accusation of cronyism that has been articulated both in leaflets distributed in Dublin Rathdown, which I have drawn the Minister for Justice and Equality's attention to, that somehow there is some inside group of people making these decisions and that the Government is not getting the best talent available. I ask him to consider long and hard whether all the people, whom he has recently appointed, would wade through this process that he is establishing to become judges had it been in operation for the last year. I know, in my heart, that they would not. I know that the high-quality people he has, and some of them have been extremely high-quality people, would have felt, to a major extent, put off by the processes that are involved in the legislation and by the idea that they would be assessed by people who are, in the majority, laypeople and who did not know as much as the present JAAB does about the relative merits of candidates.
The longer that this Bill goes on, the worse I feel for the Minister because this Bill is in his name but it is not his Bill. We are ramming through a Bill to satisfy just one person. There is something terribly wrong when one person can wield this much power over the Houses of Parliament. It is just wrong in every sense of the word but we have to deal with the amendment.
Amendment No. 6 relates to section 2(2) and is directly linked to the definition of a "lay person". Section 2(2) defines the term "relevant period", which is used in the definition of a "lay person". The definition of a "lay person" sets out a number of considerations that serve to disqualify a person from being regarded as a layperson for the purpose of the Bill. This obsession with laypersons gets to me. As I said last week, I would much rather go into an appointment on a cardiology ward with a cardiologist who had been supervised by his colleagues and interviewed by his or her colleagues, and I was sure that that person knew what he or she was doing. I, therefore, do not understand the obsession with laypersons.
One consideration that excludes a person from being considered as a layperson is the relevant period in respect of a practising solicitor or barrister. If one were a high-flying practising barrister or solicitor in this State, would one honestly subject oneself to this selection process that is so daunting? Senator McDowell has alluded to this all the time. The committee is large, unwieldy and all over the place with laypeople making decisions and chairing the interviews. I would love to see how a layperson would react if he or she were in front of a justice committee or the Committee of Public Accounts in the event of him or her being called in to explain what was going on. I take Senator McDowell's point that a member of the current Judiciary being chair may present a problem.
It is proposed that the relevant period will be 15 years, which is an awfully long time.
Fifteen years is an horrendously long time. It is not that we are trying to make sure that the people coming in are 15 years out of practice; we are saying that we are putting them through a decontamination process of 15 years. A learner judge, barrister or solicitor all have to be cleansed over a period of 15 years. They might need to be locked away from the courts or prove that they have not stepped inside a court for 15 years to be suitably cleansed. It is the most ridiculous period of time. I will accept that if we are going down the route we are going and we want laypersons on the commission, the laypersons involved should genuinely be laypersons but I disagree with stipulating 15 years. What about somebody, for example, who lectured in law and practised a little on the side? They will not qualify. A perfect reasonable period is three years and I do not see the need to stipulate 15 years.
Does the Minister genuinely believe that this decontamination period is justifiable? If so, where did the arbitrary figure of 15 years come from?How do we determine that after 15 years they have been cleansed and decontaminated of their practice at the Bar? Is it that they would not be allowed, for example, to have a drink with a colleague who is still working in the law courts? Perhaps the Law Library would have a function but such a person would not be allowed to attend it because it would bring him or her into recontamination. Would the 15 years have to start the day after a few Christmas drinks with a judge or a leading barrister because one had once again been contaminated?
It is ludicrous and mad. We are hammering this Bill through this House before it goes back to the Lower House in order to satisfy one person. I mention the amount of time it has taken and the important legislation the Minister has sitting on his desk. When this mad Bill is passed, if it passes, it will become the Minister's Bill in perpetuity. It will be there for all time as the Minister's Bill. There will be another man sitting in his new electric car outside the Garda station-----
-----in Stepaside grinning from ear to ear, knowing he got away scot free. The Minister is carrying the can for what was described not so long ago as a dog's dinner. We can justify the decontamination period but three years is perfectly fine.
I want to speak to this amendment but before I do I preface my remarks by welcoming the Minister here and thanking him for his indulgence and patience. I know it is frustrating for the Minister but it is also frustrating for us.
In preparing an opinion piece today, I took the time and trouble to look at the amount of judges this Government has presided over and appointed. Without reading that whole list onto the record of the House, because I hope my opinion piece will be published in the newspapers in the next few days, the Minister has appointed 58 judges under this Government, of which the Minister for Transport, Tourism and Sport, Deputy Ross, is a member. That is the same man who made the various statements my good colleague, Senator McDowell, referred to. I want to endorse everything Senator McDowell said because we have to ask ourselves what we are doing, what we are trying to achieve and who is behind all of this. I feel sorry for the Minister and I am sympathetic that he has had to spend over 100 hours in here. I share his frustration because I do not particularly fancy being in here but this is the Upper House. We would be failing in our job if we did not scrutinise this. We are here because we are engaging in the system. There are many empty seats here tonight so what am I to take from that? Are Members disinterested? Do they not give a hoot? I do not know. Look around at how many people are in this Chamber. What does that say? We are here to do a job. The Taoiseach came in here last year and talked about our role and he wanted us to rigorously pursue and tease out all the issues with legislation. That is what we are doing. It may be tiresome, time-consuming and frustrating but we are doing the right thing.
I want to set out that I support reform of the judicial system and I support lay involvement in the process but I do not support the removal of the major function of the Chief Justice. Looking at the list of the 58 judges appointed by the Minister, they are an impressive list of people throughout all ranks of the Judiciary. The Government can be proud of its achievements and it can be proud of the men and women it has entrusted the judicial system to be in the hands of. This is good news. Why change it? The Minister and I know what the story is. Everyone on both sides of the House knows what the story is. We will be here for many months yet as far as I am concerned. This will not just blow away. The people who have stuck with this have to be encouraged, supported and acknowledged because they are doing the work they are paid for, which is to come into this House, tease out legislation and make a case for amendments to legislation. I accept the Minister has a prerogative to accept, reject or amend any of those suggestions.
Amendment No. 6 states: "In page 8, line 21, after “chairperson” to insert “where the chairperson was a lay person at the time of his or her appointment”." It is under the name of myself and my good colleagues, Senators McDowell, Craughwell and Marie-Louise O'Donnell. The amendment would have the effect of changing the definition of a lay member, as the Minister well knows, to include: "where the chairperson was a lay person at the time of his or her appointment". This amendment sensibly removes the overriding theme evidenced in this Bill and in the Government's new amendments put forward on Report Stage that anyone who is even touched by the non-lay influence should have no say. That is madness. Such a person can have no say and could never be a chairperson of the judicial appointments commission. Why? What is the logic behind that? Explain that to us. This is complete folly. There is no comparable body in this country where someone with such responsibility would be bound to have so little experience over the role he or she is tasked with overseeing and managing. What would be so wrong about a retired solicitor, barrister, a legal academic who might have practised or a former judge who may now be a lay person in ordinary life being chairperson of the commission? Those people would be banished from ever participating in the commission. It does not make sense.
This has all come about because of the suspicions of the Minister for Transport, Tourism and Sport, Deputy Ross. The Minister for Justice and Equality and I know that and the dogs on the street know it. This amendment should be considered. I hope the Minister will reflect on it and agree with it.
When the Taoiseach took over, he appointed Deputy Flanagan as Minister for Justice and Equality. I could not and would not question the calibre of the judges appointed since that day. It is a credit to this Minister-----
No system is flawless and I would always encourage Senator McDowell with his fine legal brain to look to some day becoming a judge as he would make a fine judge. We would all be delighted if he considered the Judiciary as a career following on from his illustrious career in the Houses of the Oireachtas-----
I want to explain something first. I allowed a little latitude and then there was confusion about Senator McDowell's name being on amendment No. 6 but not on amendment No. 5. Senators Boyhan and Craughwell did not speak at all on amendment No. 5. I noticed Senator Norris disagreed with my ruling and perhaps I was not forceful enough in pressing it. The Chair has discretion and I have ruled. That is the end of that.
Obviously, members of the Fine Gael Party want me anywhere but here. I take that as a compliment and am pleased to do so.
The selection of someone to chair a body of the kind we are discussing is either left to the body or it is an ex officioappointment, but this is not an ex officioappointment. Rather, it is an appointment based on the proposition that there is one type of person who cannot become chairman of the commission, namely, a person who has practised as a lawyer or has ever held judicial office.
I ask the Minister to reconsider the amendment in the following context. Supposing somebody practised as a barrister or solicitor for five years and was intelligent and motivated enough to apply for a position as a professor at a university. If such a person had spent 12 years as a professor at a university and three years practising as a barrister beforehand, is there any reason whatever why he or she should be excluded from serving on the commission as a lay person?
Is there any reason in common sense that should be done? The answer is "No". I note that the Minister chose not to respond to any of the arguments I made about the quality of the appointments he has made or about the disinhibiting effect the amendment will have on decent people making applications. He simply stated he did not wish to answer those points. He has a right to silence and not to incriminate himself by saying anything about the matter but I appreciate the candour of Senator Noone in saying that, although she will be forced by her party whip to support the votes on the measures in question, she personally disagrees with them. The candour on her part is not new. I recall when the proposal to abolish the House was debated nationally, she and I visited Maynooth university, where we spoke to law students-----
On the quarantine period of three years Senator Craughwell mentioned, if the Government wanted, for some crazy reason, to exclude people from being chair of the commission, three or five years would surely be enough. If the person had gone from being a lawyer to being-----
-----joining an insurance company or becoming chairman of a bank, or another such change that has happened in the past, a period of ten years is surely not necessary to get rid of the camaraderie or whatever of the Law Society or the Law Library, which is supposed to be so terrible.
The prohibition on the chairperson being a lay person means, according to the legislation, that someone who has practised for three years as a barrister or solicitor, became an academic, rose through academia and, after 12 years, became a professor or the dean of a law faculty, would as a result be wholly excluded from being considered a lay person, whereas somebody who simply took a bachelor of civil law degree and a master's degree, but never darkened the door of a solicitor's office or the Law Library, would be eligible to be considered a lay person. How daft is that? How shameful that such arbitrary discrimination should be put into law.
We talk these days about populism, and about people making inflammatory remarks regarding immigration, using words unwisely and trying to create, by wolf-whistle politics, a wrong impression among voters. There is a danger of that, as the Minister has noted. The purpose of the 15-year quarantine provision, however, is to reinforce the notion that the Bill will somehow get rid of cronyism. It will not do that in the first instance, and it is false to suggest that cronyism has any part to play in the appointment of judges, as the 58 appointments Senator Boyhan mentioned prove.
We read constantly in the newspaper - the more I hear about it, the more I believe - that the Minister, Deputy Ross, now objects to Circuit Court and District Court appointments, and to vacancies in the Supreme Court being filled. That any Government could abase itself to allow one Minister take the appointment of judges hostage is bad enough, but to do so somehow to bully this House into doing what it should not do, namely, pass the legislation, which will only disimprove the quality of the Judiciary appointed hereafter, is worse.
Accordingly, I am happy with the amendment, which will simply make it possible for a lay person, judge, solicitor or barrister, or someone who has worked for three years as a practising lawyer before becoming a distinguished academic, to be chairperson. The amendment is good and the Minister should accept it. His silence, on this occasion, speaks volumes. I have not heard anybody, including Senator Conway, refute the points I have made or offer a different point of view.
Let us be clear: the appointments could not have happened if this stupid Bill had been passed into law. The Government would have had to advertise every one of the appointments, and each of the sitting judges who have just been promoted to other positions would have had to reapply to the commission.
Senator Conway might dwell upon the fact that the appointment to which he referred could not have been made if this Bill were in place because it would have required its being advertised by the Government. That makes a nonsense of what we are being told is the purpose of the Bill.
No. I am not hearing any word from the Senator; I am going to make this statement. Amendments Nos. 8 and 9 are physical alternatives to No. 7. Amendment No. 11 is consequential on No. 7. Amendments Nos. 11 and 12 are physical alternatives to No. 10. Amendments Nos. 7 to 12, inclusive, may be discussed together by agreement. Is that agreed?
Amendment No. 7 proposes an entirely new subparagraph (d) in the definition at section 2(1). This has never been discussed before. It proposes to exclude people who have served as, for example, a barrister or judge in Northern Ireland-----
-----or France or anywhere else from ever serving on this body. It has not been discussed before. It is not really the same as, for instance, the question of whether a member of An Garda Síochána is a lay person or not. I do not see how they are connected at all.
I agree with Senator McDowell. These are very significant amendments. Amendment No. 7 in particular is very different from, and of a different order to, the others. It is far more substantial. It seeks to insert four new paragraphs into page 8 of the Bill. I have already referred to this amendment a number of times in my speeches on earlier amendments. It certainly should not be grouped together with a whole group of much less significant amendments. In addition, amendment No. 9 relates to a very specific issue regarding An Garda Síochána. I will wait for the Chair.
To finish my point, amendment No. 12 relates to the length of time for which a lay person's period of disqualification or "quarantine", as it has been referred to, should last. That is very specific and not contingent on amendment No. 7. It relates specifically to the existing text of page 8 of the Bill, as do amendments Nos. 8 and 10. These refer to the deletion of existing text, which is very different.
In a sense, this grouping facilitates the Senators because, if amendment No. 7 is agreed, Nos. 8 and 9 cannot be moved. Because of the overlapping, it is better to discuss Nos. 7 to 12, inclusive, together, as advised. That is the reason for the grouping.
That would not undo the grouping. The Senator can make that proposal but, if we were to proceed in this way, Members could be discommoded because, when we finish with amendment No. 7, they will not be able to discuss the other amendments. They will not arise.
I fully accept what the Leas-Chathaoirleach is saying about amendment No. 7 sweeping away Nos. 8 and 9. I do not want to question the correctness of logic of that point in any way. Senator Craughwell is suggesting that we should recommit the Bill in respect of amendment No. 7. It is a novel proposition that people who have been, for example, solicitors in Northern Ireland for two or three years in the last 15 years-----
Yes, I oppose the proposal because discussion on Committee Stage of this Bill went on for longer than 100 hours. This is a House of the Oireachtas. It is not a Chamber for filibustering. I seriously object to the Bill being recommitted. I seek the protection of the Leas-Chathaoirleach for the integrity of this House in ensuring it does not happen. It is totally inappropriate.
For the purpose of being orderly, Senator Craughwell has proposed that the Bill be recommitted for the purpose of discussing amendment No. 7. I have seconded that proposal. I understand there is opposition to it but it is a matter for a decision by the House.
I will speak on that in a minute and then the Senator can decide.
I welcome the Minister back to the Chamber. We are back to Report Stage. I have already moved amendment No. 7. Will Senators please pay attention? We will have no repetition of what happened earlier. Amendment Nos 7 to 12, inclusive, are related; amendment Nos 8 and 9 are physical alternatives to amendment No. 7, which means that if amendment No. 7 is agreed, Senators will be unable to speak to amendments Nos. 8 and 9; amendment No. 11 is consequential on amendment No. 7; and amendments Nos 11 and 12 are physical alternatives to amendment No. 10. Amendments Nos. 7 to 12, inclusive, may be discussed together by agreement. Is that agreed?
Hold on. I want you all to pay attention to this. The Chair is always anxious to accommodate, as far as is reasonable, the views of Senators as to the grouping of amendments, and for this purpose generally seeks the assent of the House before proceeding. However, it is ultimately the prerogative of the Chair as the judge of order in the Seanad to rule on methods by which amendments are to be discussed with reference to one another so that duplication of discussion can be avoided.
The grouping of amendments is also sometimes necessary to protect the interests of a Senator whose later amendment might not be open to debate by reason of a decision on an earlier amendment, for example, in the case of physical alternatives. Groupings are never a matter for formal decision by the House. Amendments are grouped for a variety of reasons, for example, where an amendment is consequential on another; where amendments are physical alternatives to one another, that is, they seek to amend the same text within the Bill such that the agreement of one amendment would necessarily preclude the moving of another; where amendments are logical alternatives to one another; where amendments are cognate, that is, they embody the same principle where they are offered to different parts of the Bill; and where amendments are similar, that is, they effect the same or similar purposes. Ultimately, amendments are grouped in the interests of an efficient and productive debate and the Chair exercises such latitudes as are available to him or her with those principles in mind.
It seems clear to me from what the Chair has said that he has introduced an element of confusion. To my mind, amendment No. 12 must be read in conjunction with amendment No. 10. The Chair has now split them. I advise against the type of decoupling that we had on an earlier Stage that resulted in contradictions in the Bill, but I am in the hands of the House. I just-----
The House has a disposition to do more than just throw up every procedural angle available in order to ensure that this debate is slowed down. As Chair of the proceedings, I ask the Leas-Chathaoirleach for assistance to ensure the smooth running of the debate insofar as he can. It seems that, if he decouples amendments Nos. 11 and 12 from amendment No. 10, which is now his proposal, we will be in waters that could give rise to a contradiction.
I will be brief. This provides for a new definition of "lay person" to be inserted into section 3 to ensure that the term "lay person" is not confined to exclude only persons who held judicial office, had been the Director of Public Prosecutions, the Attorney General, the Chief State Solicitor or law officers in the State, or had been practising barristers or solicitors in the State. It now encompasses in its exclusions those persons who have held office outside of the State. A person who has held judicial office outside of the State or, subject to the time limit in subsection (2), has been the equivalent of a practising barrister or solicitor in another jurisdiction cannot be regarded as a lay person for the purposes of the Bill under the amendment.
The Minister has very briefly and tersely proposed amendment No. 7. The effect of his amendment is to remove three existing paragraphs and substitute four. The fourth paragraph is the new point in this debate. It would appear that the Government, following Committee Stage in the House, suddenly got the bright idea that the definition of "lay person" was too loose and that what was needed in the definition that it had already proposed was an additional disqualification from being regarded as a lay person, namely, a person "does not hold or occupy, and has never held or occupied, an office or position in a place outside the State equivalent to an office or position referred to in paragraph (a) or (b)", which means judicial office or the attorney general, director of public prosecutions, chief state solicitor or a law officer of another state.In other words, if a person is a civil servant in Britain whose position depends on having a qualification in law, he or she should never, ever be capable of being appointed to the Irish judicial appointments commission. Likewise, if one is a civil servant in Northern Ireland whose job involved having a legal qualification - and let us be clear about this because Senator Ó Donnghaile might have some interest in this - no matter what one does for the rest of one's life, and it could be 20, 30, 40 or 50 years later, one still stands disqualified under this provision from being eligible to be appointed to the judicial appointments commission. Does Sinn Féin really believe this is a good idea? If a person serves two years in a position in the civil service in Northern Ireland, for which a legal qualification is required, and should thereafter come south of the Border - or even remain north of the Border - this amendment would mean that he or she may never be capable of being a member of the Irish judicial appointments commission.
It is a pretty shocking proposal in the Bill. This occurred when the light went on in somebody's brain in the Government - and I do not know who it was - to say the Bill contained a previous definition of "lay person" and that it should be amended to contain that prohibition. I believe this to be pretty shocking. I do not see how we can accept it. I want to be 100% clear about what we are doing.
The definition of "law officer" as I understand it is a person who holds office in the public service, and whose tenure of that office in service as a barrister or solicitor, or whose qualification as a barrister or solicitor-----
I am looking at the wrong document. Yes, I have it now. The Bill's definition is that " “law officer” means a person employed in the service of the State where a condition for the employment of the person was that he or she was a practising barrister or a practising solicitor". Paragraph (b) of amendment No. 7, however, means that if a person did two years' service - for example with the Director of Public Prosecutions Office for Northern Ireland - in a position for which he or she had to be a practising barrister or solicitor - then that person would thereafter never be capable of being a member of the Irish judicial appointments commission, no matter for how long. This is not a 15-year limit; it is forever and ever and the person could never carry out that function. One must ask why this is being done. Why would a young woman who did two years' service in the office of the Attorney General of Northern Ireland, for which the status of practising barrister was required at the time of appointment, be forever disqualified from being appointed to a position in the Republic of Ireland, no matter what she had done in the intervening period? I cannot understand why this is necessary. I do not understand why we are being asked to do that. That is paragraph (b).
Paragraphs (c) and (d) of amendment No. 7 state the person "is not, and in the relevant period specified in subsection (2)for the purposes of this paragraph, was not, a practising barrister or a practising solicitor [...] in a jurisdiction outside the State in accordance with the law of that jurisdiction;”. Again, it is a solicitor or barrister who is to be disqualified. Does this apply to notaries or advocates in France or Germany, or is it purely common law jurisdictions such as Canada, Australia and New Zealand? It may not apply to America as they have a unified profession of attorney. I do not understand this amendment.
Consider the first line of paragraph (d): " [...] has never held or occupied, an office or position in a place outside the State equivalent to an office or position referred to in paragraph (a) or (b)". There is an equivalence matter here, whereby the amendment would disqualify a person who is a magistrate in France, for example, which is an equivalence of judicial function. With the disqualification for persons acting as barristers or solicitors in a foreign jurisdiction it is only barristers and solicitors that the Bill is concerned with. I believe this to be completely irrational. An American attorney would not be excluded but a barrister in the Channel Islands would be. A Northern Ireland barrister is caught by this provision, whereas an American attorney is not. For the life of me I cannot see how this makes sense. I cannot see how such a provision could have been drafted. It is badly drafted.
If one was to try to knock out legal professionals across the world it should have said "has never been a barrister or solicitor or held or occupied an equivalent position anywhere else in the world", but the Minister has not done that. This is a simple flaw with the drafting. The Fine Gael Party came in here and prevented us from looking at this again on Committee Stage. They came in here and said "No" and objected. They said it was all wrong to recommit it. They voted down a motion to recommit this amendment. Now there is another dog's dinner being put into the law, whereby an American attorney can be appointed, a French notaireor advocate can be appointed, or an equivalent anywhere in Europe can be appointed to the judicial appointments commission but anybody whose name is barrister or solicitor cannot, because these are common law descriptions of divided professions. That is a major and embarrassing mistake to have put into legislation. It is inexplicable and indefensible. It should not be waived through this House. The Minister should withdraw the amendment because it simply does not make sense. Very little depends on this amendment and if the Minister withdraws this amendment the Bill will not be hugely changed. The disqualification of some people outside the State from being appointed to the commission is wholly unnecessary, wholly irrational and wholly indefensible because it distinguishes between a person who is described as a "solicitor" or a "barrister" in England, and a person who might be a professional anywhere in the EU, the United States of America, or anywhere else in large portions of the common law world where the profession of barristers and solicitors have been amalgamated into attorneys or equivalents.
It is a mystery to me as to why this proposal was made. I want to examine it again, if I may. Was there a danger that a foreign judge - or a retired judge from a foreign jurisdiction - would be appointed to this commission?The Government, suddenly in its wisdom, when it framed these amendments decided we could not possibly have a retired judge from a foreign jurisdiction appointed to this commission. What is wrong with that? What is wrong, for instance, with having a retired judge from Northern Ireland function on this commission? Is that person supposed to be part of a cronyist cabal of practising lawyers who would tend to dominate the whole system to the detriment of the common good? It simply does not make sense. There is absolutely no reason a solicitor or barrister from all the professions practising law throughout the world should be selected for exclusion unless, and this is what I am wondering, this is aimed at Northern Ireland. I think it must be aimed at Northern Ireland. That is the most likely place from where somebody, if this amendment was not passed, would become a member of the judicial appointments commission.
If someone from Northern Ireland was or continued to reside north of the Border and had retired from practice 12 years ago, how could it possibly be inappropriate that such a person to be considered a lay person if he or she had never practised in a court in the Republic? How could that possibly offend Deputy Ross's view of the legal insider concept? It could not. Therefore, I am strongly of the view that this paragraph (d) which came from nowhere, was never discussed as far as I can recall on Second or Committee Stages in this House or the other House is the product of a hyperactive imagination. Someone saw some loophole whereby somebody with a legal qualification in Northern Ireland might be considered a lay person and quickly put together an amendment, used the term "barrister" or "solicitor", notwithstanding the fact that it does not apply to advocates, notaries and all the other descriptions, abogadosand all the rest of it in Spain and the like, and simply said they did not want it to happen. It reeks of an anti-Northern Ireland prejudice. If the purpose of this lay-non-lay distinction is to exclude people who have practised in the Irish courts, this amendment goes far further than that and has no rational connection with it.