Wednesday, 27 November 2019
Judicial Appointments Commission Bill 2017: Report Stage (Resumed)
When we reported progress last night we were in the process of discussing amendments Nos. 7 to 12, inclusive. I was speaking in particular about amendment No. 7 and I want to reiterate a few points I made, not at great length. Amendment No. 7 is effectively to substitute a new definition of the term "lay person" by adding a paragraph (d) to the existing definition. This paragraph (d) adds to the list of the people who are to be considered lay persons. They are persons who do not hold or occupy, and have 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). These are offices or positions equivalent to the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor or a law officer. As the Leas-Chathaoirleach pointed out to me, the term "law officer" was inserted in the original text of the Bill as meaning "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".
The proposed paragraph (d) in amendment No. 7 also states that a lay person "is not, and in the relevant period specified in subsection (2)for the purposes of this paragraph, was not a solicitor or barrister practising in a jurisdiction outside the State in accordance with the law of that jurisdiction". In addition to people who are or have been judges in a foreign jurisdiction of some kind or another, or who are or have been law officers equivalent to the category mentioned in paragraph (b), a further group of people is to be excluded, namely, those who, for the purposes of the relevant period in subsection (2), which is 15 years at the moment, have been a solicitor or barrister practising in a jurisdiction outside the State in accordance with the law of that jurisdiction.
I have pointed out that the phrase "solicitor or barrister practising in a jurisdiction outside the State in accordance with the law of that jurisdiction" is a very unfortunate piece of drafting because effectively it means the law of whatever jurisdiction to which this is supposed to apply has a category of people who equate to solicitors or barristers. As we know, we could possibly say that an advocate in Scotland might or might not be interpreted to be a barrister for the purposes of that clause but when we come to France or Germany, or many of the other member states of the European Union, the distinction between solicitors and barristers is not mirrored in the way purported by this particular section. In fact, what is being said here is that if somebody came to Ireland and remained here for 12 years after having practised in England as a barrister or, let us be charitable to the draftsman, an advocate in France if a purposive interpretation was put on this rather than a literal one, that person would be disqualified from being considered a lay person for the purposes of Irish law.
The value or otherwise of this new paragraph (d) must be judged by what it achieves over the original text the Minister seeks to amend. Effectively it is saying a further category of persons disqualified from being on the commission is being created to exclude people who, within 15 years, had been a practising lawyer in another jurisdiction anywhere in the world. Then we have to ask ourselves why should such a person be deemed unworthy to serve on the Irish judicial appointments commission. At the moment, for instance, the Minister appoints three persons to the Judicial Appointments Advisory Board and none of these exclusions apply. The Minister could, for instance, decide it would be a good idea to have an English judge, a Northern Irish judge, a Scottish judge or whatever, to be a member of the Judicial Appointments Advisory Board just to bring a different perspective and perhaps a common law perspective from a different jurisdiction with a view to improving the spread of ideas on the question of who should or should not be recommended for judicial office to be appointed by the Government by advising the President to do so.
I do not know why it is considered the case that a retired English judge should never in any circumstance serve on the Irish judicial appointments commission. Why would the Minister say that? What logic would there be that no such person could ever serve? He or she would not be eligible to serve under any of the other provisions of the Bill, as drafted. Somebody who within the past 15 years has experience of a foreign jurisdiction as a practitioner is likewise somebody whom the Minister wants to exclude from ever being appointed to this commission. The only Irish practitioners of law that will be on the commission will be a nominee of the Bar Council and a nominee of the Law Society. The Minister is taking steps to ensure anybody who had any equivalent experience will never be capable of being added on because he or she would have to be a lay person. Such people are permanently prohibited from being appointed.
This being the Minister's own proposal, I do not understand why exactly he wishes to extend this area of disqualification. Does he think that a future Government might try to circumvent - I do not know what - a policy of having a lay majority by having somebody with foreign experience of a legal system or actual experience of practising in a foreign jurisdiction at some stage in the distant past, perhaps 12, 13 or 14 years ago? Does he think this will improve the commission? I have to say I cannot understand why this change is being made. To be honest, it never occurred to me that anybody had in contemplation the making of such an appointment but to prohibit it required a degree of ingenuity and determination that I cannot really follow.I cannot understand why a retired High Court judge from Northern Ireland should not be capable of sitting on our judicial appointments commission at all in any circumstance whatsoever. That person is, by some mark of Cain, excluded as wholly unsuitable and a person who may never serve on our commission. There is no logic to this.
I am happy to explain that to the Senator. If he looks at paragraph (d), there are two parts to it and the first part states that a person is a lay person if he or she: "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 no time limit whatsoever on that. The amendment continues: "and is not, and in the relevant period specified in subsection (2) for the purposes of this paragraph, was not a solicitor or barrister practising in a jurisdiction outside the State in accordance with the law of that jurisdiction". Subsection (2) is the 15-year period.
This may end up being voted on. I am only interjecting to the extent that Senator McDowell is willing to facilitate my understanding of this. If I understand correctly, from what Senator McDowell is saying, a person who practised as a barrister or solicitor in a foreign jurisdiction more than 15 years previously and has not done so for 15 years is not deemed tainted, so it is the equivalent of a spent conviction in that regard.
That seems to be the intent of the section. One requirement is that a person has never held a judicial or law officer position in a foreign jurisdiction. The second is that a person has never, in the last 15 years, practised as a solicitor or barrister in a foreign jurisdiction.
I agree with Senator Mullen's point. There is a remarkable discordance, that one could ignore experience as a barrister or a solicitor if it was more than 15 years ago but in the case of a retired or former judge, one cannot ignore any period at any time in the past. It disqualifies the person completely. That was the point that I was trying to make and I hope that I was not unclear in what I am saying. One group of people is permanently and by definition excluded, no matter how long ago they held judicial office or functions similar to that of the Director of Public Prosecutions or Attorney General outside the State. It is easy, with regard to paragraph (b), to be distracted by the fact that the person is not and never has been the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor or a law officer.
The term "law officer" is defined as meaning somebody employed in the service of a state. I presume that we are talking about the service of a foreign state. The definition that was added states: "a condition for the employment of the person was that he or she was a practising barrister or a practising solicitor". Does that apply to advocates in Germany and to various forms of lawyer around Europe or is it solely directed at common law jurisdictions where such categories actually exist? We are left in the dark about that. Even taking the most charitable and constructive view of it, we are left with the dilemma that a person who held judicial or law officer status is permanently and forever excluded from ever serving on the Irish judicial appointments commission, no matter how distant in the past that service was. If a person was, at any stage in his or her life, a barrister or solicitor practising in a jurisdiction outside the State in accordance with the law of that jurisdiction during the qualified period, which is 15 years, that person is subject, as Senator Norris puts it, to a 15-year quarantine.
That is a point that Senator Mullen can make himself. Why was paragraph (d) cooked up? Who sat down and thought that this possible loophole had not been sealed off, that somebody with judicial experience abroad might crawl through a crack onto this commission at some stage, greatly to the detriment of the theory of the Minister, Deputy Ross, that this kind of person is never to be trusted because of his or her experience to behave in other than a cronyish way?
On the back of all of this, as we come to it at some stage over the next few months, the definition of a lay person is relevant in the sense that such a person could be appointed as a suitable person by the Public Appointments Service process and be agreed to by the two Houses of the Oireachtas. This filtration in paragraph (d) is remarkable, given that the only way lay persons, other than ex officiopeople and practitioners, are going to find their way onto the judicial appointments commission is through a very complex process whereby they have to apply to be appointed. The Public Appointments Service has to vet them, recommend them and short-list them. That recommendation has to come before the Houses of the Oireachtas to be approved. It is not as if some wholly unworthy person or a person with a terrible original sin of knowing anything about the law is going to sneak in by some ministerial-----
-----misadventure or nod and wink operation into this commission. A lay person will never appear on this commission unless he or she goes through the evaluation and suitability tests which will be set out for lay persons. That is why I consider this such a gratuitous and pointless amendment. I have not heard any explanation of why it is necessary. What was wrong with the original definition of a lay person? Why was it necessary to say that somebody from outside the jurisdiction with legal appearance might get through the Public Appointments Service and past the Houses of the Oireachtas, which would be a terrible thing? The only explanation can be is that there is a madness at the heart of this legislation, which is that lay persons must be in a majority because anybody who has any experience other than as a total lay person is in some sense inferior at making choices for recommendations.
That is the original sin from which one needs redemption of 15 years in purgatory. Alternatively, it could be that from the very beginning one is damned because one wore a judge's robe.
Those are my objections to the paragraph proposed in amendment No. 7. The Minister has not told us why it is necessary to close this "loophole", especially in light of the fact that a lay person would have to go through an immense vetting process in which lawyers would have no input whatsoever. A retired judge or a person who has been ten years out of practice abroad who came and asked to be on this commission would therefore not be judged by lawyers as to his or her suitability; he or she would be judged by the Public Appointments Service procedure. There would be a public advertisement and a recruitment process, and the recommendations would be made to the Minister, who would then put them before both Houses of the Oireachtas. That is how people would end up on the commission. Why are we singling out even more candidates as incapable of going through this process? No case has been made for this and it should not be permitted. I do not know where the idea came from. It was never raised, as far as I know, on Committee Stage in this House. I am not querying whether the amendment is potentially out of order on that account but I am making the point that no one ever came up with this wild theory that some foreign lawyer might somehow escape the sieve of the Minister, Deputy Ross, get through the system and end up on the judicial appointments commission.
Amendments Nos. 8 and 9, as the Leas-Chathaoirleach helpfully pointed out, will fall aside if amendment No. 7 is agreed to. Amendment No. 9 proposes, in respect of the original text, to add to paragraph (b) of the definition of a "lay person" the exclusion of members of An Garda Síochána, in other words that a person cannot be or have been an Attorney General, a DPP, a Chief State Solicitor, a law officer or a member of An Garda Síochána. I would have thought the Minister would have accepted that amendment. Are superintendents and other members of An Garda Síochána, having completed their terms as members of the force, when they prosecute to be capable of being regarded as lay persons when they retire whereas solicitors who have defended such people whom inspectors, sergeants and superintendents prosecuted are not capable of being seen as lay persons for 15 years after they retire? That is an interesting point because sergeants, inspectors and superintendents act as prosecutors in court, that is, they prosecute people before judges. That is illogical, and I would have expected the Minister to accept that amendment. I presume it is in order for the Minister to say he would expand his definition of paragraph (b) to include members of An Garda Síochána because they are just as much prosecutors and practitioners in the District Court in many respects as a good deal of solicitors, some of whom never darken the doors of courts at all. Many solicitors never go to court and never have anything to do with the courts system. They are in massive palaces all around this city - God bless them, I have no objection to them - and can specialise in activities which have nothing at all to do with the judicial process. They can sit in offices advising on murders, acquisitions, conveyancing matters, commercial contracts and all sorts of other things and never darken the doors of courts and never see the inside of one. I remember a very eminent senior colleague of mine and I were waiting for a case to go on-----
I was just going to examine the matter. An eminent colleague of mine asked why we were waiting, why we were delayed. I said it was because the judge on whom we were waiting was charging a jury. This colleague said to me he had never heard of this and asked what was going on. I suggested he put his nose in. He came out a couple of minutes later and said, "That is amazing." It just struck me that one could live one's life completely oblivious to what happens in courts yet be a very eminent practitioner. I am just making the point that it is proposed on the one hand to allow officers of An Garda Síochána who themselves act as prosecutors, without the aid of lawyers, to be regarded as lay persons after they retire and, on the other, to deem unsuitable people who have spent their whole lives, or part of their lives, engaged in conveyancing and to disqualify them from serving on this commission. The disproportionate discrimination between these two things is fairly obvious.
Amendment No. 11 goes hand in hand with amendment No. 7. That is just technical. Amendment No. 12, however, concerns a serious point. Again, the Minister could have accepted amendment No. 12 or his own variation of it. Why is the proposed period of quarantine 15 years? If someone has not been a practising lawyer or solicitor for seven, eight, nine, ten, 11 or 12 years, why can he or she not be considered a lay person, albeit one with perhaps a bit of experience and knowledge of the law but nonetheless capable of being a member of the commission? If one believes in the whole idea of quarantine and that existing practitioners might have some skin in the game, surely three or five years would be quite sufficient to ensure that people were cleansed of the awful taint of having their hands dirtied by the process of litigation, which presumably is why such people are being excluded. Somewhat laughably, a spouse of a judge or barrister is entitled to serve as a lay person - there is no problem with that. Close family members of lawyers are entitled to be on the commission, but the terrible thing is that people who actually do the job themselves are, as I said, in this sense tainted with the mark of Cain, this original sin that must be either a basis for excluding them forever in the case of certain office holders or the basis for requiring them to go through a quarantine period of 15 years on the basis of what the Minister, Deputy Ross, demands as a purgation of their potential disloyalty to the idea of having a role in choosing members of the Bench. I have not seen any justification offered for the period of 15 years.It is an immensely long period of time. I will give an example. If somebody studies law, and there is no problem about studying law, that person can have as many BCL degrees as he or she wants and still be considered a layperson. The big sin is, for a couple of years, trying and perhaps finding that his or her talents lie elsewhere and then going elsewhere. The big sin is that that experience of knowing what the courts were like for a short period of two or three years somehow renders the person unsuitable for a period of 15 years of being regarded as being on the same plane as the spouse of a serving judge, or something like that. I simply do not understand it.
This latest paragraph in the Minister's amendment No. 7 and the insistence on keeping the 15-year quarantine period demonstrates a hostility towards lawyers and towards legal experience having any positive benefit for somebody who is appointed a member of the commission as a lay person after an exhaustive assessment procedure by the Public Appointments Service. It demonstrates a hostility that is almost pathological. Again, I make the point that one could be a doctor of law-----
One could be a doctor of law, not honoris causa, and could be considered a layperson for this Bill. However, the person's big sin is that if he or she pokes his or her nose inside a court for a couple of years, that person is tainted forever. It is ridiculous and it should not be permitted to be part of our law.
I want to address a matter Senator McDowell referred to in his contribution on amendment No. 9. I would have thought a garda would be considered a law officer because gardaí implement the law and they are certainly part of the legal function.
I know, but that is a bit odd and vague. Turning to Government amendment No. 7, I am a little surprised the Minister has not included academics in this. Could he explain to the House why, having excluded judges, barristers, solicitors and all the rest, he lets academics in? The Minister is shaking his head but I do not know quite what that means.
I want to turn to the contentious paragraph (d). What I find interesting is that it reads, "for the purposes of this paragraph, was not a solicitor or barrister practising in a jurisdiction outside the State in accordance with the law of that jurisdiction”. There are many different legal systems in operation, some of them quite different from the common law system that is operation in this country. I simply do not understand why administering a totally different system of law should possibly disqualify somebody from acting in this situation. It is absurd. For example, the French system is quite different in terms of the way it is prosecuted and the whole legal framework and background is totally different. Why on earth that should disqualify somebody from administering the law in this jurisdiction is completely beyond me.
Amendment No. 8, in my name, which may or may not fall depending on what happens to amendment No. 7, reads, "In page 8, to delete lines 22 to 27", which concerns the definition of "lay person". The Bill reads:
“lay person” means a person who- (a) does not hold, and has never held, judicial office,
(b) is not and never has been the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor or a law officer, and
(c) 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.
I want to get rid of all that content on the definition of "lay person". I disagree fundamentally with the idea that there should always be a majority of laypersons on the commission.
Amendment No. 10 reads, "In page 8, to delete lines 33 to 37." This deals with the period of time. In this regard, the Bill reads:
The relevant period for the purposes of paragraph (c)of the definition of “lay person” in subsection (1)is the period of 15 years immediately preceding the latest date on which a person may apply to participate in the selection process (whereby a recommendation for his or her appointment to the Commission may be made by the Public Appointments Service).
A period of 15 years is astonishingly long. It is an enormous amount of time. If we go 15 years back from this date, it is to 2004. People of my age can hardly remember 2004.
It is an absurd amount of time to put in. I wholeheartedly agree with Senator McDowell's amendment No. 12, which seems perfectly reasonable and moderate because it replaces "15 years" with "3 years". I think three years is plenty. I do not see why they should be disinfected at all, but if the Minister is going to do it, three years is a perfectly reasonable amount of time.
To go back to the deletion of lines 33 to 37, the purpose of my amendment is to delete subsection (2) of section 2. That subsection effectively defines the term "relevant period". The term "relevant period" is used in the definition of "lay person" and provides 15 years as the minimum period that a barrister or solicitor is required to cease to practise to enable him or her to be considered a layperson for eligibility to serve as a lay member of the judicial appointments commission. For the reasons I have given, I completely oppose that.
I wish to speak first on amendment No. 7. This is a Government amendment that further adds to the definition of what a layperson is under the Bill, adding a subsection (d) to ensure that no legal practitioner from outside the jurisdiction might constitute a layperson. It seems the Minister for Transport, Tourism and Sport, Deputy Ross, is truly a believer in the conspiracy theories of the deep state and is so afraid that someone will try to crusade against the Judiciary in this State, which is absurd in itself. All legal practitioners who work overseas are to be banished from having any role or be viewed as a layperson - from the ridiculous to the sublime, one might say. Even the Minister for Justice and Equality must find it hard to defend this Government amendment but we look forward to hearing his response.
We have been well over 100 hours debating these matters in the Seanad, where no Member mentioned the necessity of banishing foreign legal practitioners from having a role on the judicial appointments commission. This is the first amendment the Government has put forward.
To be clear, I have checked it. After all the debate, nobody in this Seanad mentioned the necessity of preventing foreign legal practitioners from having a role on the judicial appointments commission. We are open to correction on this; this is the process. This is the first amendment the Government has put forward. The Minister may say what he has to about this in a minute. What is the point in having us debate this legislation at all if our views are just cast aside to be ignored in favour of whatever the Minister for Transport, Tourism and Sport, in this case Deputy Ross, wants? It is ridiculous. The Minister is no longer a Member of this House. He does not interfere in the management of it and I hope he would not interfere with the work of Deputy Charles Flanagan as Minister for Justice and Equality, which work I acknowledge he does well.
I am curious as to whether this amendment, if we as Members of the Seanad had submitted it, would even have been accepted under Standing Orders. Clearly, there is a theme running through all this. This needs to be examined, taking into account our Standing Orders, given that there was zero debate on this question.
I was allowing the Leas-Chathaoirleach to speak.
What is this all about? We need some explanation. The stenographers do a great job here. There are many hours so there is a lot of reading. By doing a few word searches, it is quite easy to find out what happened or did not happen in this House. Why is the Minister for Transport, Tourism and Sport so afraid of persons who may have had legal experience abroad having a function on the judicial appointments commission? What is everyone afraid of? What is the problem? What are the Minister's difficulties?
In every walk of life, international experience is beneficial. In the medical profession, doctors have been upskilling overseas for decades. Our health system has benefited from this. In business, almost all the entrepreneurs in this country are individuals who have exported goods, services or experiences abroad, including across the world. In education, the Erasmus+ programme is one of the greatest achievements of the European project. It connects students to universities and provides them with an unrivalled opportunity to learn new things and about other cultures. Therefore, what is the motivation behind the little Ireland approach whereby only those who are strictly laypersons who have never gained any legal experience abroad need apply? That is clearly the message. This amendment and its motivation beggar belief. I would appreciate the Minister's response but I recognise commenting is his prerogative.
I find it staggering that Senators are in such a lather over this issue. I am merely putting non-laypersons in this jurisdiction on the same footing as non-laypersons from outside the jurisdiction. It is perfectly normal. I do not see any circumstances in which we should be constrained from appointing a person who practised here as a barrister and who was for a period a layperson, bearing in mind the possibility of appointing a similar person from, say, any other part of the United Kingdom. I do not believe a constraint would be fair. I find it staggering to listen to Senators work themselves up into a frenzy over an issue that is merely a matter of form in the context of treating people outside the jurisdiction in the same manner and by the same means as people from within the jurisdiction. It entails no more and no less. There is no conspiracy, no secret and no cover-up.
Paddy Burke, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Billy Lawless, Anthony Lawlor, Tim Lombard, Gabrielle McFadden, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Niall Ó Donnghaile, Neale Richmond.
Paddy Burke, Jerry Buttimer, Maria Byrne, Paudie Coffey, Rose Conway Walsh, Martin Conway, Maire Devine, Paul Gavan, Anthony Lawlor, Tim Lombard, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Neale Richmond.