Tuesday, 15 November 2022
Judicial Appointments Commission Bill 2022: Committee Stage (Resumed)
Regarding amendment No. 33, I have been considering what the Minister said on the last occasion we discussed this Bill. She made the case that what was proposed in this Bill was in line with international practice. I was a bit taken aback by that because clearly it is clearly not in line with the practice in America. I am not holding that out as the great model but I am just saying that is the case. I then checked on Canada, Australia and New Zealand and I found that nothing like what we are proposing here was proposed in any of those jurisdictions. They are significant common law countries. The only country that has similar provisions, in some respects, is the United Kingdom and it has different provisions for the various different courts.
I genuinely believe there is a constitutional issue here. I wrote about it in The Irish Timessince we last met to discuss this Bill. Nobody is infallible when it comes to the Constitution, as we have just learned in the last week. Things can happen that people did not see happening. Regarding the CETA treaty, it should be said that the matter was to be put before Dáil Éireann and the Government decided to guillotine it, with 55 minutes for the total debate. The Green Party kicked up a fuss and as a result it was sent to a committee. The 14 members of the joint committee divided equally on the issue, with seven saying there were constitutional issues and it went back to the courts under Deputy Costello's challenge.
The constitutional implications of this Bill are fairly substantial. We have made provision for the Chief Justice and nine ordinary members of our Supreme Court. If a vacancy occurs in the post of Chief Justice, three names are to be put on a shortlist to be sent to the Government and it is to be attempted to make it illegal to appoint anybody other than somebody on the shortlist to that position. Allowing that some Court of Appeal or High Court judges may be on the shortlist, rather than just ordinary members of the Supreme Court, six or seven members of the Supreme Court will be excluded from eligibility to be appointed Chief Justice at the hands of the Government if such a vacancy arises. That is remarkable. These seven people - or six or five, depending on who else is on the shortlist - are up there in the Supreme Court and the Government will have had an opportunity to see them administering justice there for many years. The Government is then to be told it cannot appoint a majority of the Supreme Court but can only appoint whoever this commission decides should have their name put before it. There is a constitutional issue there.
This Bill refers to merit. Merit is almost like picking up mercury with a fork. It is very hard to define what it is. Is a conservative more meritorious than a liberal? Is a Europhile judge more meritorious than a constitutionalist? Those are the issues that arise when appointing somebody to the Supreme Court. No matter who is in office, those issues will arise. What kind of person will they be? Are you appointing somebody who is radical in temperament or somebody who is extremely conservative in temperament? They can both be claimed to be meritorious. If they are both interviewed by this commission or a subcommittee of the commission, can they be asked questions about those kinds of issues? Can they be asked if they are conservative, liberal or radical, pro-European or Eurosceptic or whatever? None of those questions seem appropriate to ask people, particularly practising members of the Judiciary, to answer. Maybe the Minister will help us with regard to this issue. The Bill states that when the shortlist is sent to the Government, the commission is obliged to inform the Government that it has interviewed the candidate who is about to be appointed.I want to know whether that interview is supposed to happen before or after he or she is short-listed. Is it to be the case that it is sufficient to interview the candidate after he or she has been short-listed or is it to be the case that it is to be done before being short-listed?
Moving on to amendment No. 36, this is where the Minister, I have to warn her, is about to walk onto a landmine with the Bill as currently constructed. Amendment No. 36 is designed to create a situation in which, if somebody who is a member of the superior court is appointed to a position either in the next court above, to the presidency of a court or whatever, and a vacancy arises on that account in the court in which he or she was serving prior to his or her appointment, it is quite possible, for example, if an ordinary judge of the Supreme Court is appointed Chief Justice, that the question could arise as to who should succeed that person as an ordinary judge of the Supreme Court. As I read this Bill, one has to start the process all over again. One cannot, as is the case now, at Cabinet state that Ms Justice so-and-so is being appointed to the Supreme Court, that creates a vacancy in the Court of Appeal and that the Cabinet will appoint A or B to fill that position, that she happens to be a High Court judge and that the Cabinet will fill that as well and there is a shuffle upwards of positions. Under the Bill, if it is passed, the consequential vacancies will have to be filled one-after-another because one cannot anticipate that it will be an ordinary judge of the Supreme Court is being made Chief Justice or a member of the Court of Appeal. One cannot advertise the vacancy in either court on the assumption that that will happen. It could be an ordinary judge of the High Court who is made Chief Justice or whatever. The process has the requirement for interviews, advertisements and invitations for applications.
It is interesting that the Bill prohibits one from putting in a standing application. One cannot, as a member of the High Court, state, if any vacancies occur in the Court of Appeal, consider him or her as applying. That is prohibited by this Bill. The process has to be run repeatedly. With the best will in the world, is an appointment duly made in accordance with this process to take place in respect of any vacancy within three months of its arising? If an ordinary member of the Supreme Court is made Chief Justice, a judge of the Court of Appeal is eventually found to be short-listed and approved by the Government to fill that vacancy and a High Court judge is eventually found suitable to fill the Court of Appeal vacancy, that will take at least nine months. Why should we do this to ourselves? Why should we create such a tortoise-pace system of appointments? Why should it not be open to the Government to state that it knows who the candidate is for Chief Justice, that creates this vacancy, the Government would consider A, B and C should fill the vacancies that arise from that, and the Government does not consider it necessary to start advertising all of those positions or to leave them vacant for up to nine months, if this Bill is enacted in its present form.
I raised this issue in relation to the previous Bill, which was the project of the former Minister for Transport, Tourism and Sport, Mr. Ross, and I got no satisfactory answer. I got many answers from the then Minister for Justice and Equality, Deputy Flanagan, but he had no way of answering what would happen to this cascading line-up of delay in filling vacancies. That is where this amendment comes from. We tabled it on the previous occasion. We got no explanation as to whether it is satisfactory that it takes nine months to fill three vacancies which arise in the manner that I have described.
It should not be attempted. It is wrong in principle to attempt to do this. It is wrong in principle to say that if one appoints somebody to be Chief Justice and that takes three months with interviews, etc., and that if that person is already a member of the Supreme Court, it takes another three months to fill that position.
This is a dog's dinner of an approach in terms of legislation. When I was Minister for Justice, Equality and Law Reform and when others were Minister for Justice, and others were Attorney General, one sat down and asked what we would be doing to the Judiciary if we appointed A to a position and who would be the right person to achieve gender balance or whatever else in his or her wake. The Cabinet came to a rational decision among the people who were there on the proposal of the Minister for Justice, with consultation of the Attorney General and the party leaders in a coalition Government and stated that this is effectively the series of changes it would make that afternoon. That is entirely impossible now.
I take it the Minister accepts what I am saying that if there are three appointments in a chain like that, it would take nine months at the earliest to fill them. If that is the case, the Minister should accept amendment No. 36 and bring some level of sanity to the problems which this legislation is bound to create.
To respond briefly to the previous conversation, I reiterate nobody is being excluded and nobody is being disqualified. Everyone must go through the same process, irrespective of what level along the Judiciary he or she is. They merely have to go through a process. Nobody should be excluded from that, irrespective of who he or she is, particularly where we are talking about a promotion.
In terms of the international standards, I suppose what I was saying or meant was to some extent having regard to international standards, not saying we must go with one or the other. The Senator has referenced some. It is to take into account international standards as well as European rulings and European standards.
It is my advice - I appreciate the advice I receive at Government level - that three is the appropriate number for the recommendations. It limits in a way the current position, where I could potentially have 40 names which some could argue is not the right way either, but it still allows discretion for Government to be able to appoint off those three names. That would be my view on that and that is the advice I have received.
In terms of amendment No. 36, I suppose the purpose of the reform of this Bill is that we are filling individual positions as they arise. I am aware now, even as positions arise in the various different courts, there may be requirements at different stages for different types of expertise, knowledge and cases and a specific surge in particular types of areas of law that is required by the President of any new judge being appointed. This ensures that the appointments, the interview process, the questions and the requirements are specific to the role that is being filled as it changes. I suppose that is one of the main reforms proposed in this Bill that every person going for appointment goes through that process and it is specific to the role that has arisen, not potentially somebody who has sat on a panel or has been put forward already for a different role where circumstances may have changed. It is for that reason that I am not in favour of the amendment. It goes against what many of the core changes in this legislation are trying to achieve.
I have to say the following: we live in a real world rather than a theoretical world. If I apply as a judge to be appointed to a vacancy on the Supreme Court for which I am interviewed but unsuccessful - I could be in the top three - it would be bonkers for me to have to go through the interview all over again when a second vacancy arises in that court for whatever reason a week later. Why can I not say I applied two months ago, was interviewed three weeks ago and my application stands? Why would one wish to interview me again? Will different people interview me? Will they put different questions to me? It is the same vacancy at the same level and for the same purpose. If I was on the shortlist the last time, why in the name of heaven should I sit down to be re-interviewed for the same job?
We are dealing with "Alice in Wonderland" nonsense here. No company would interview the same person again and again for promotion to chief clerk or another position. The company would remember it had interviewed the person three weeks ago when the person was second on the list and decide to appoint him or her. However, here we have the cruel system of forcing people to go through the whole process again and we are putting down a statutory requirement whereby a person who was interviewed a month ago has to be re-interviewed for the same position because it arises in different circumstances.
If a child was listening to this debate would he or she think it was a reasonable thing to do? If a person applies to be a High Court judge on the death of Mr. So and So, is in the top three and recommended to the Government and somebody else is chosen, does it make any sense not merely to ask the person to apply again and restart the effort of getting referee but to interview the person again by the same or a different group of people? A child would realise that is a stupid thing to provide. No other organisation in Christendom or anywhere else for that matter would operate on that basis and, yet, a rigid approach has been taken whereby it is said not a word of this Bill can be changed now that it is in the Seanad because we might have to bring it back to the Dáil. We are now on a kind of autopilot. This plane is on autopilot to crash into the mountain but we cannot change course. It is too late now because we have made our decision. It just does not make sense.
I am sceptical enough about what would happen to a Court of Appeal judge at interview for promotion to the Supreme Court. What questions will the person be asked? Will the person be asked whether he or she plays golf, has a family or likes walking or swimming? Will it be something to do with the person's temperament as a judge when he or she deals with counsel? If one has been in the Court of Appeal everybody knows whether the judge is good, bad or indifferent on that front. Will the person be asked about his or her general attitudes? Will the interviewers be asked to be completely agnostic as to whether the person before them is a deeply conservative person or a social liberal? Is the interview to have nothing to do with that issue which is fundamental to why the Government might choose one rather than another to be appointed to the Supreme Court?
It is based on a fiction, when the Minister says all appointments will be made on merit, that she can say social conservatism is less meritorious than social liberalism. To say appointments should not be made on that basis to a Supreme Court of a constitutional State is deeply misguided. It is simply wrong to say the Government of the day should not be concerned with whether Mr. Justice Bloggs or Ms Justice So and So is a deep conservative or a raving social liberal on moral matters and other things. It is wrong to think a Government should not say it does not wish to fill up the Supreme Court with that kind of a person.
An appointment is effectively made at the behest of sitting members of the Judiciary because the four lay people will be at a considerable disadvantage in some respects compared with the four judicial people. To say the appointment is made on merit is to suggest that there is some kind of merit test which decides between being left wing and right wing or liberal and social conservative. That does not make any sense whatsoever. It is a choice for Government. The Minister then says that nobody is being disqualified. Yes, people are being disqualified. If one says to a Supreme Court which has a Chief Justice and should have nine ordinary members, that only three of them can be considered by Government, by definition, six or eight of them cannot be considered depending on who the other candidates are.
I do not see any basis on which it is constitutional to say to the Government of the day that somebody who has already been on the Supreme Court for a number of years cannot be appointed Chief Justice, because four judges in particular come up with a list of three which does not include that judge. That is a person being excluded. There is no way around it. It is precisely what is being planned here. That is not what happens in Canada, New Zealand or Australia which are great and very commendable common law jurisdictions. Canada has a written constitution. None of those states has done this to vandalise the method of appointment of people and to restrict the capacity of the Government of the day to make proper decisions in the manner that has happened heretofore with regard to appointing Chief Justices or members of the Supreme Court.
I do not want to be accused of filibustering but I protest very strongly against this Bill and the failure of the Minister to face up to what is in amendment No. 33 and, in particular, amendment No. 36 which is nonsense. It is nonsense to say that it can take nine months to fill three ladder consequential appointments. We have never had to do this until this day. I remember many times the Cabinet said that if So and So was going to the Supreme Court, So and So would go to the High Court, or if So and So had been made Chief Justice, somebody else from the High Court would go to the Supreme Court. It is all done in an afternoon and, sometimes, even Circuit Court people are appointed in the same train of succession to the High Court. It is all done at a Cabinet meeting because the people who are in a position to judge these things put their minds to it and come up with good solutions.
It is ridiculous to say that the Minister will appoint someone on foot of a three-month selection process and another three-month process will be started to fill any vacancies it creates. It is simply ridiculous and indefensible.I will not put it any further than that.
This is a dog's dinner of a Bill. It is not best practice internationally. The Minister mentioned European this and European that. I want to say one thing about Europe. In Europe judges become judges, except in systems like the Conseil d'État in France, through a system of promotion much like departmental officials. People join the judiciary at a lower level and keep moving up. It is a completely different job. People are not independent arbiters, chosen in their 50s to hold the scales evenly between the State and citizen. That is not the common law system. The civil law system in France is radically different from ours. Its concept of judge is radically different from ours.
There is no point in us pretending that because we are members of the European Union our system of common law and adversarial justice, rather than documentary justice done through processes such as we see in the Court of Justice of the European Union, are one and the same. They are quite different. The kind of people we need are quite different. In order to make our system work, we need to appoint people who are wholly independent of the State, people who have not worked their way up through promotion from assistant judge to judge of this, that or the next thing. That is not the system we have.
Our courts system is one of our biggest national assets. In the context of the CETA decision, let us remember that American and Canadian investors in Ireland understand our system of law and have confidence in its ability, transparency and integrity. We do not need to make these deeply damaging changes to the way in which we appoint judges. This is a solution in search of a problem. There is no problem. I ask the Minister, in the strongest terms, to take on board amendments Nos. 33 and 36 to save the Bill from a constitutional challenge under Article 36 or elsewhere.
It is all very well for the Minister to say she has been advised X and Y. So were the people who attempted to pass CETA. I am not claiming to be infallible and nobody else is either. That is all I am saying.
Before I ask the Minister for a brief response and put the question, it is my pleasure to welcome our Dáil colleague, Deputy Cormac Devlin, to the Gallery, along with his friends from the Rotary Club of Dún Laoghaire. They are welcome and it is great to have them here. They are here for an interesting Bill. I hope they enjoy the debate and their entire visit to the House.
I fundamentally disagree with the argument that just because one is a sitting member of the Judiciary one should not have to go through an interview process. I have not engaged with just the Attorney General, but also the Chief Justice and many others. There does not seem to be a view that this is something that should be excluded or removed from the Bill. What does anybody ask anyone in an interview process? Structures need to be set out, and that will be done.
What the Senator is suggesting is that a panel on the commission will intentionally exclude certain people because they do not like them and have their own reasons for that. That can happen anywhere, with members of Government or a Minister. I am trying to make sure that we have as clear and transparent a process as possible. The Senator asked a question about the interview process concerning when the names are presented to the Minister. They will have gone through the interview process and it will be helpful for the Minister in making a recommendation to Government colleagues, be it in a coalition or any other Government.
I fundamentally disagree that because someone is a sitting judge he or she should not have to go through the process any other person at any other stage goes through. We might differentiate between our Judiciary and another type of profession, but if one is seeking a promotion an interview process is the normal process to go through. I do not see why this should be any different.
I value the advice of the Attorney General. It is important that we listen to the advice he gives to Government. What we have here makes the process even more transparent.
I fully agree with the Senator that our Judiciary is one of our strongest and best assets. We are renowned worldwide in terms of the qualifications and exemplary way in which our Judiciary works. This Bill will only benefit those who are sitting judges and are seeking to become judges. I disagree with the Senator's argument. What is proposed is not just for the sake of it or to slow down or speed up the process. I have not filibustered or tried to prevent the debate from happening. We are giving as much time as possible to this discussion. I take on board everything Senators have said here and what Deputies said in the Dáil.
The interview process is a fundamental part of the Bill. Three names will be put forward and each individual position will be based on that position, the requirements of the day, the requirements of the President, the types of cases and situation we are in at that point in time. That is why the Bill has been set out in the manner in which it has been.
Catherine Ardagh, Jerry Buttimer, Micheál Carrigy, Lisa Chambers, Lorraine Clifford-Lee, Martin Conway, Ollie Crowe, Paul Daly, Aidan Davitt, Aisling Dolan, Pippa Hackett, Gerry Horkan, Seán Kyne, John McGahon, Pauline O'Reilly, Ned O'Sullivan, Mary Seery Kearney, Barry Ward, Diarmuid Wilson.
I move amendment No. 34:
In page 26, line 7, after “language” to insert “and Irish Sign Language”.
Amendment No. 34 would provide that recommendations from the commission should reflect the need to ensure a sufficient number of judges with a proficiency in Irish Sign Language, ISL. The Seanad has a proud record when it comes to ISL. It is vital that users of ISL are able to equitably and fully participate in the legal system, both as judicial officers and as members of the public taking cases. There has been a lot of discussion in the debate over the last few weeks regarding equality. This amendment seeks to address issues of both equality and equity in the legal systems of our society.
Amendment No. 35 is a consequential amendment to ensure consistency with the insertion proposed by amendment No. 34. Amendment No. 39 would provide that the commission will consult the Courts Service about the needs of users of the court with respect to proceedings being conducted in ISL. This amendment sees to ensure that the Courts Service is accessible for ISL users and that there is consultation by the commission with the service on its requirement to provide for accessibility. Article 13 of the United Nations Convention on the Rights of Persons with Disabilities provides for access to justice for disabled people. It explicitly states that parties to the convention:
... shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
I see no reason the Government would oppose these amendments. They are relatively simple and reflect and complement already existing legal obligations that the State has agreed to. Amendment No. 40 would provide that the commission would consult the president of the High Court, Circuit Court or District Court, as the case may be, about the needs of users of the court concerned in respect of proceedings being conducted in ISL.
I thank the Senator for putting this forward. This group of amendments is proposed in respect of sections 39 and 56. Section 39 specifically deals with the recommendations of the commission being based on merit. Subject to that requirement, account shall be taken of other objectives, which include meeting the needs of users, as the Senator said, of each court in the State with respect to proceedings being conducted in the Irish language. Section 56 deals with consultations and submissions or observations at the request of the commission, including about the needs of users of the court with respect to proceedings being conducted in the Irish language.
The effect of these amendments would be to add to these provisions matters relating to proceedings being conducted in ISL. The Irish Sign Language Act 2017 provides for the use of ISL in legal proceedings, including the right of a person to use ISL in any court. It is already the duty of the court to make sure any person may be heard in that language and there is provision of interpretation of proceedings into ISL. What has been set out in these amendments is already set out very clearly in the 2017 Act and there are already provisions whereby this objective can be achieved through an interpreter. A consequence of this proposition could be that proficiency in ISL should be a statutory requirement on members of the Judiciary. I am not sure if that is what is intended but I do not think it would be practicable as a statutory requirement when appointing people to the courts. What we are trying to achieve here is to make sure everyone who has access to the court has access in their own language. The use of interpreters, as already set out in the 2017 Act, will be able to achieve that same overall goal. I fully appreciate the intention behind these amendments but I think what we have in law already makes sure that can be achieved.
I have considerable sympathy for the points made by Senator Ruane. However, I would make one point. The other amendments in this grouping deal with the possibility of conducting the entire proceedings through ISL. Let us be realistic about this. The great majority of participants in most court cases would not be proficient in ISL and are unlikely to ever become proficient in it. We all get ten years of education in the Irish language, whatever effect it has, and there are difficulties for a lot of judges in conducting cases in the Irish language, which is a deep pity. It will inevitably end up that the Minister's remedy of having an interpreter would be the case. There will never be a case where everybody - witnesses, barristers, solicitors, the judge and the registrar or clerk or whatever - will be able to understand what is going as they are all proficient in ISL. In cases where ISL speakers use the provisions the Minister referred to, there is always going to be an interpreter in court. I wonder whether we are asking too much of the commission to first conduct a study to see how many judges would be required to be proficient in ISL. To say that justifies appointing one person rather than another to a position, for instance in the Supreme Court, is pushing things out, especially since the other members of the Supreme Court would not know what was going on unless the matter was interpreted for them.
I also have sympathy with these amendments and I understand where the proposers are coming from. It would be wonderful if we had judges who were proficient in ISL. I recognise what the Minister said about the Irish Sign Language Act 2017. I also recognise that even if the judge in a single-judge sitting, or all the judges in a multiple-judge court, was proficient in sign language, the reality is they could do their work through sign language alone. They will always be relying on an interpreter because there would be registrars and other people in the court who will most likely require those interpretation services. As the Minister said, it is important that anybody who is an ISL user will have equal access to justice, just as people who are Irish-language speakers should have equal access to the court. From the point of view of what a judge does in the course of a hearing, he or she will be sitting there and - without wishing to use a term pejoratively - will be listening to the arguments and making notes. If there were a judge or judges who were competent to conduct a hearing through ISL, with the benefit of an interpreter for those who could not understand ISL, it would not be feasible for a hearing to be conducted in that way. For that reason, I do not think it is a relevant consideration, particularly when no similar requirement exists for the registrar, the Courts Service officials or the lawyers. We would still require the facilitation of translation in the courtroom.However desirable it might be to have a judge who does not just have a competence in Irish Sign Language but, perhaps more important, an understanding of what it is to communicate through ISL and what that means in the context of a court setting, the reality is that judge would not be able to conduct his or her function through sign language. This is because of the need to take notes, maybe to consult texts, or to read documents that have been presented before the court. That in and of itself means the requirement for a judge to have an ISL competency is negated in real terms, however desirable it might be.
I will briefly respond to those comments. I understand the complexities this requirement would bring in terms of the need for translation and interpretation. Irish Sign Language is recognised by the State as a language. It should not be the case that somebody is not able to fluidly communicate with the most powerful person in the room in a language fully understood by all present because, even if there is interpretation, nuances can be lost. It is about trying to equalise the participation of somebody in the court process.
I play football. There is woman who is a deaf player on one of the other teams at my club. I remember watching her team play and the managers communicating with her in Irish Sign Language. I know that took place on a football pitch but I was so impressed. I thought how amazing it was that somebody was equally able to communicate with the managers in the same way everybody else on the team was. I asked the managers how it came about that they knew Irish Sign Language. I wondered if they learned it just to be able to communicate with the football team, but many of them worked in schools or were special needs assistants. The fact is more of us should be proficient in Irish Sign Language in order to be able to equalise some of those interactions to the point where people can communicate in sign language even when they are running around on a football pitch.
There is definitely room for us to encourage judges, clerks and anybody else in any sort of institution or public body, and incentivise people, to learn Irish Sign Language and be able to use it every day, especially if they work with people who are already in the vulnerable position of being in court and further feeling that vulnerability because they cannot communicate directly with the judge or other people in the room in their preferred language. I will move the amendment, notwithstanding the contributions made.
As Senator Ward was speaking, I wondered where we would be in jury cases? A jury of people who know Irish Sign Language could not be empanelled with any convenience. We have to be realistic. ISL is recognised as a language under the legislation referred to by the Minister but, in its present state of usage, there are limits to how realistic it is to conduct proceedings entirely through that language.
I will raise a few matters relating to section 41 that I want explained as to what they actually mean. There is a prohibition on canvassing in this section that states:
An applicant shall not, in relation to the process of selection and recommendation (including any step that may be taken in consequence of such a recommendation) of ... [any person] for appointment or for nomination for appointment or election to the judicial office to which his or her application relates—
(a) canvass, or attempt to canvass, support for his or her application from any person involved in that process,
(b) attempt to improperly influence a decision of any person in that process,
(c) otherwise interfere with or compromise that process in any way, or
(d) procure or counsel another person, on his or her behalf, to engage in the conduct referred to in paragraph (a), (b)or(c).
What are we actually saying here? We are creating a criminal offence. Are we saying that somebody who has applied to the commission and has been shortlisted cannot make any representation to the Attorney General or any member of the Cabinet regarding his or her suitability? Is it open, for instance, to the Cabinet to discuss with third parties, on behalf of a person or whatever, whether or not a person on a shortlist would be recommended? I am slightly concerned. Are Ministers to be in a state of omerta about this in that nobody can talk to them about it? The bit that slightly worries me states, "any step that may be taken in consequence of such a recommendation...". Does that mean a decision by the Government to select from among the persons recommended? Is that really what is proposed?
This section sets out exactly what it sets out. It prohibits canvassing for individual positions. It is based on the fact that every person will go through a process. Names will obviously be put forward and the recommendation will be based on those names, the interview process, and the information that has been provided from the commission itself. Yes, the section states that canvassing will be an offence. I do not anticipate that we will go around prosecuting people, but it is very clear in this Bill that canvassing is prohibited and is not something people should engage in.
A point that arises in this context - I have not located it in the Bill and perhaps the Minister could assist me - is whether the shortlist is to be kept secret in all circumstances. Is that provided for in the legislation?
Is a Cabinet Minister at liberty to say to Senator Ward, for example, that he is one of the three that may be eligible next time? Is a Minister entitled to have that kind of conversation? If Senator Ward is number 1, 2 or 3 on the list, is he entitled to know that?
I know there is no number 1, 2 or 3 on the shortlist but is somebody who is shortlisted entitled to know it? Is anybody else entitled to know it? Is it a secret and is it an offence to reveal it? That is a point I would love to know about and I do not see it in the legislation. Maybe it is there.
The three individuals who are put forward to be shortlisted will be notified. Anybody who is not shortlisted can request and ask but will not be notified unless he or she requests it. If people are within the top three, they will be notified. A person can request to be notified or not. It applies if an individual requests to be notified. It had been the case that everybody would be notified following discussion and engagement. On a request put forward, it is now the case that if somebody requests to know, that person will get the information, but if they do not request the information they will not get it.
Most people who go to the trouble of applying and being interviewed would like to know what happened and whether they were or were not in the top three.Some people are so modest that they do not want to know whether they made the shortlist. Assuming that is the case is there some rule that the identity of the persons on the shortlist coming to the Government is to be kept secret except for communicating it to them?
It is not going to be published beforehand but names will be presented at Cabinet. As Senator McDowell knows anything that comes before Cabinet is bound under Cabinet confidentiality. That is still the case. It is the same if I was-----
If I was to bring forward a name now obviously the list of eligible judges or the list of those who applied is set out as well and available for people to see but obviously there is Cabinet confidentiality. That applies in the same way but they are not going to be published prior to Cabinet. They are not going to be made available. As I said we actually had in the Bill that every person would be told and, on further engagement with the Judiciary and with others, it was amended so that if a person asked and wanted to know he or she could be told. If such people did not, and it is their right if they do not want to be informed whether they are on it, they would not be given that information.
The Bill sets out that the three names must be given to the Minister for Justice. The Minister will engage as is set out in the handbook and the rule book with the leaders of the coalition or whoever is in Government, with the Attorney General and with Cabinet colleagues. However, names going to Cabinet are bound under Cabinet confidentiality.
I fully appreciate what the Minister has just said but we need more clarity. The Minister gets a list of three names and goes to the leaders of the coalition parties in Government. Are they prohibited from asking any questions of anybody else as to which of the three is the better or more suitable candidate? I do not think it is in the Bill. This is not a fanciful thought. If I was the Minister, Deputy Eamon Ryan, and the names of three barristers or solicitors appeared in my hands would I be permitted to ask others for their opinion of the three?
Such a thing would happen. Let us not cod ourselves. If people ask others for advice as to which of the three should be appointed or what are the qualities of the three as far as the Government is concerned, such issues would involve who is liberal and who is conservative. If they are free to make those inquiries this will leak like a sieve. There is no point in codding ourselves that that will not happen. In what I call the Shane Ross Bill, I thought there was some prohibition on any leakages of this kind but I do not see it here.
We are looking at that in the reverse so that is not somebody canvassing, that a person is free to understand who the individual is or to ask the question, that is currently the case. Names are put forward and there has to be an understanding of who is being put forward, particularly if people do not know all the names, especially as a large number of names are often put forward or a name that has been recommended by myself, just one name. We are not talking about the leaders of parties canvassing. We are talking about them making a decision.
It is outside the scope of this Bill but this specific section is very much around canvassing and individuals taking it upon themselves to talk to somebody else or to canvass. What Senator McDowell is talking about is making a decision. I am not sure if the leader of a party or anybody else is going to make a statement that he or she is asking about an individual who may or may not be on a list. That is a process that is outside the scope of this Bill. I do not see that as canvassing. I see that as somebody making a decision.
Going back to the point about the interview process and more information, the process that has been set out here gives the information to those who are making the decisions to the Minister to put forward that name and give that information where it is currently not available, where a person might not know the individual and the name being proposed from Adam, and might not know anything about the person or his or her background. That is already the case now and the system we are putting in place means that there is more information on the individuals who are potentially being put forward for a recommendation. What Senator McDowell is talking about is not within the scope of this Bill. The canvassing is a separate issue. For a person to be asked for an opinion, he or she obviously has an ability to ask questions.
To my mind section 41(1) only refers to the applicants. There is no restriction. The offence can only be committed by an applicant rather than by a member of Cabinet or anybody else involved in the process. The applicant is the person named so that is the person who is prohibited from doing the things described in section 41(1).
What Senator McDowell describes is something that presumably could already happen. He is quite right in being concerned about the confidentiality of the process. That is paramount because if potential applicants or applicants do not have faith in the confidentiality of the process, many of them simply will not apply because they do not want a situation where they are potentially discussed in a negative context of not having been selected. That is the reality of the people we are talking about as potential members of the Judiciary. That is important.
I personally do not think this is necessary, certainly not in the very strict terms in which it is described here. I do not think it creates any prohibition either on the Minister making his or her own inquiries if I can put it is those terms. I disagree with the Minister in regard to her statement on the interview process adding to the information available to Cabinet. I have an amendment later to section 46(1)(b) to remove that requirement because the difference between what is being suggested here and what the Minister is suggesting is that the Minister’s suggestion requires the Minister to rely on information that is coming to him or her through the Civil Service process, through the process that is nominated in this Bill which is fine. However, it is a different quality of information from information which a Minister might obtain from somebody he or she trusts, who might perhaps know the individuals or the system. There is a different quality to the information provided through both of those processes, on the one hand through an interview and the competitive Civil Service style process that is envisaged by this Bill and, on the other hand, a person with personal knowledge who might pass it on to somebody he or she knows or trusts in those processes. I do not think section 41 is necessary but maybe I have more faith in the system than I should. In any event I do not believe the problem envisaged by Senator McDowell exists because this section only applies to the applicant.
I appreciate there is a difference between canvassing and the process whereby the leader of a small party in coalition would receive three names from the Minister for Justice and say "I do not know these three people from Adam and I do not know between them, which of them is the best, because the Bill says there is no order". If I was the leader of a party in the Government I would certainly want to take soundings before walking into Cabinet to be told they are all on a list and they are all of equal standing, all equally eligible for appointment. I would like to know whether a person is liberal or conservative or whatever. In order to do that, even if there were three people there, I would ask somebody I trusted for advice, such as a member of my own party perhaps who was a lawyer if I was not one myself, on which of those three is the best, in his or her view, rather than going to Cabinet and just sitting there in a state of ignorance.It is important that we take on board that a consequence of this Bill being drafted in this way is that while it is a criminal offence for the applicant for a position to engage in canvassing, curiously, the wife or husband of the applicant can do it like billy-o. Paragraph (d) states “procure or counsel another person ... to engage in the conduct” but an ambitious spouse or ambitious friend can canvass furiously. The only person who is prohibited from doing it is the applicant himself or herself.
This has not been thought through. If I inform a politically influential friend that I believe I am shortlisted, and that person on my behalf decides to tap the shoulder of Cabinet members and say “That person would make a good judge”, in those circumstances, is an offence committed? An applicant would be disqualified under subsection (2) but a friend of the applicant who knew that he or she was shortlisted would not be disqualified and no offence would be committed unless it was done at the behest of the applicant. I wonder what we are attempting to achieve here. I believe the absence of a guarantee of secrecy from the whole process is going to deter a lot of people from making applications. If you read on the front of a newspaper that the political correspondent of the Daily Buglehas ascertained that you were turned down by the Cabinet three times in a row, what are you to make of that, what are you to do about it and what right of complaint have you got about it? None.
What I would say is that people are not put off by the current process. What we are talking about in section 41 is specifically on the issue of canvassing and does not relate to where a person has been put forward or names have been put forward and decisions have to be taken. We are bound by Cabinet confidentiality and the commission is bound by confidentiality as well. I have not seen a scenario where names for a High Court appointment are on the front of a newspaper where people have not been appointed. I do not see that changing with this Bill. The canvassing section, whether people believe it is necessary or not, is based on the advice that this is included in the Bill. I think it is standard practice. It is to try to prevent and prohibit that type of canvassing but, as I said, it is outside the scope of this Bill.
The point concerns communications between Cabinet colleagues or, as the Senator said, whether a person might speak to or ask advice of a Cabinet colleague who may have a legal profession or have background information or knowledge. We are not changing the process that currently exists or the option that is there, and we are not prohibiting that. It is specific to canvassing by the individual. As I said, it is the advice that is there and it is standard practice. I cannot see a situation where people will not apply because they are fearful that Cabinet colleagues are going to start breaching confidentiality or that the commission itself, which is yet to even be established, is going to start breaching confidentiality. We need to have trust in the commission that will be chaired by the Chief Justice and assume that these rules that have been set out will not be breached.
Again, I go back to the point that if individuals want to know where they came in the process, they can seek to apply and ask. If they do not, that is not going to be forced on them either.
The bottom line of this section is that there is no prohibition on somebody approaching a member of the commission or the Government to suggest that a particular person should be shortlisted or, if shortlisted, should be appointed. That may be the law we are about to make, namely, that anybody except the applicant can approach anybody on the commission. It would also go the other way around in terms of suggesting that a person should not be shortlisted by approaching a member of the commission and saying, for example, that Michael McDowell is a most unsuitable person to put on the Bench. If that is permissible, I do not know what this section is all about. I really think this has not been thought through.
Garret Ahearn, Catherine Ardagh, Jerry Buttimer, Micheál Carrigy, Lisa Chambers, Lorraine Clifford-Lee, Martin Conway, Ollie Crowe, Paul Daly, Aidan Davitt, Aisling Dolan, Timmy Dooley, Pippa Hackett, Gerry Horkan, Seán Kyne, John McGahon, Fiona O'Loughlin, Pauline O'Reilly, Mary Seery Kearney, Barry Ward.
I spoke to the Minister during the earlier stages of this debate about section 42(1), which states:
(1) The Minister may request the Commission to make recommendations for appointment or for nomination for appointment to judicial office, as the case may be, where— (a) a judicial office stands vacant, or
(b) he or she reasonably anticipates that there will be a vacancy in a judicial office.
It seems to me that the word "may" seems to confer discretion on the Minister on this matter, and that it will not be the duty of the Minister to make recommendations. When it is invited to do so, the commission will issue an invitation through advertisement for applications from persons who wish to be considered for selection. In those circumstances, the commission will issue information, as set out in subsection 4, in addition to the invitation by advertisement. Regarding the phrase "he or she reasonably anticipates that there will be a vacancy in a judicial office", and returning to the point we made earlier, if it is likely that an ordinary judge of the Supreme Court will be made Chief Justice, can the Minister at the same time seek applications to fill any vacancy that would arise from such an appointment or must the Minister wait until the vacancy has actually occurred? On one view of section 42(1)(b), the Minister could reasonably anticipate that there will be an appointment to the position of Chief Justice and, in all likelihood, there will be a vacancy in the Supreme Court. Alternatively, must the Minister bide her time and wait for the actual outcome of the first three-month process before shooting the firing pistol to fill any consequential vacancy?
We previously discussed the word "may" but a situation has arisen even in my case where a decision was taken not to fill a particular vacancy or a decision was taken by the president of the relevant court that it was not required, so that allows for that discretion. That is not to say that a Minister might randomly decide not to fill positions in the District Court or elsewhere when they might clearly be needed. This just ensures that the Minister may do so if that is what is necessary.
On the question of reasonably anticipating that there may be a vacancy, the same is the case at the moment - a person may be appointed by the Cabinet but the official process of going to the President, being officially nominated and moving into that position does not happen immediately. If that person has been appointed by the Cabinet, we know that a vacancy has arisen, which allows the process to start even though the person has not officially been appointed. There is a reasonable understanding that having been appointed by the Cabinet, the person will be appointed. It is often a case of having to work with the President's schedule. Sometimes there is a wait for one or two different appointments to happen at the same time and the ceremony happens in the President's residence at the same time. This allows for a process to start when a person has not officially been appointed but it is reasonable to anticipate that a vacancy will arise once he or she has been appointed. In response to the Senator's previous questions, it allows for a process to start.
I anticipate that the commission will be more resourced and, hopefully, more efficient in terms of the process. Therefore, rather than every application taking three months, it could be done much more quickly. That would be set out by the commission. When things start, it might take a bit of time but I anticipate that things will move quickly enough. What this really does is anticipate that a process can start when a person has been appointed but has not officially taken on the role for the reasons I have outlined. This is very similar to what happens now.
I do not think I am exaggerating when I say it is three months, but it certainly must be two months. You must put up your advertisements, give people a reasonable amount of time to consider whether they want to apply and give them time in which to get any requisite references. Then the list comes back. In the case of the District Court, for example, if there are 40 applicants, the first thing is whether all of them get an interview. I wonder if they do. That could take a long time to get through. Decisions then have to be made on who is best suited to be on the shortlist. That must then go to the Cabinet. I would be very surprised if the commission manages to do this in less than two months. Between the jigs and the reels, I think it is most likely that it will take three months.
Another point is that as I understand it, the post of Chief Justice is held by a judge for seven years. Is it to be the case that as we come towards the end of the seven-year term, the Minister will advertise for replacements in order to be in a position to fill the position as soon as the Chief Justice steps down? We know that barring accidents, Chief Justices retire at 70 or retire having done their seven-year term. The question that arises is whether, when the current Chief Justice or some other Chief Justice is three months away from retirement, the Minister will start the process of filling the position at that point. Is this eventuality covered by section 42(1)(b), which provides for the Minister to "reasonably [anticipate] that there will be a vacancy in a judicial office"?
Yes, that is the process that happens now, particularly for the type of vacancy mentioned by the Senator. It ensures there is no gap, particularly for such significant roles. I do not propose to change that. It very seldom happens that a person promoted to a position from one court to the next is automatically appointed or takes up that position immediately for the very simple reason that we must work with the President.A process can start quite quickly and leave a relatively short gap between when a person vacates his or her current position and takes up the new one and another person takes it on. I appreciate there can be a gap. There can be a vacancy that needs to be filled immediately but the intention here is to allow that flexibility to make sure that one can plan insofar as possible. It is the case where one knows that a vacancy, whether it is the Chief Justice or potentially president of a court, is coming up that one can plan and prepare. That is exactly what happens now.
I move amendment No. 36:
In page 28, between lines 28 and 29, to insert the following: “Right of Government to advise President
43. Notwithstanding the provisions of section 42, nothing in this Part affects, limits or inhibits the right of the Government in any case where it advises the President to appoint any member of the Supreme Court, the Court of Appeal, or the High Court to any judicial office in any of those courts to the vacancy thereby created without seeking any recommendation from the Commission.”.
It seems that the process of filling the position of Chief Justice will be carried out by the commission, normally where the Chief Justice is in office and will participate as one of the four judicial members of the commission making a decision, but if, for instance, there was a resignation or whatever, the next senior judge of that court would carry out that function. Am I correct in thinking that?
Section 45(1)(a) envisages the Chief Justice making an application to the commission, and I presume that that would be for appointment to some European court or something of that kind. There is the question that he "shall not attend any meeting of the Commission held for the purpose of the performance of that function". Is it to be the case that meetings can only deal with one application? For instance, the Attorney General might be applying to be a High Court judge and the commission might on a particular afternoon be also considering an appointment to the Circuit Court. Do they have to be separate meetings to ensure that the Attorney General does not participate in any part of the meeting where the Attorney General is under consideration? Should it not be that the Attorney General shall absent himself or herself from any portion of the meeting held for the purpose of the performance of that function?
The other matter is that section 45(1)(d) seems to imply that the Attorney General shall not cast a vote but I thought that we had decided in an earlier section for some reason that he or she had not a vote to cast in the first place. Am I right on that?
The answer to the Senator's first question is, "Yes". The second most senior person will take on that position. Obviously, we make no reference to voting and it is "take no part in the performance by the Commission". The performance of the commission is not only to vote but also to discuss the recommendations and the names at hand. That is why the Attorney General would be included.
Essentially, this section is around recusal and making sure of that where a conversation takes place. I suppose it would be a decision of the commission to decide what meetings it was having and what positions it was filling. It is not likely to happen too often in all of the various different meetings that the commission will have. If there is a particular meeting happening, I am sure that the commission would be able to figure out how to hold a meeting, either to adjourn it and then to reconvene the same meeting or to have two separate meetings if there were different positions being put forward at the same time or different positions going forward to Cabinet or being requested at the same time. That is a decision that can be taken by the commission. It is something that could probably be resolved quickly.
This section is around making sure that if a person who will be on the commission is applying for a job, he or she is not in the room talking about it and discussing it at the same time for obvious reasons.
I had not considered what Senator McDowell has raised there. I am wondering if the Minister can clarify that in the context where the situation under section 45(1)(a) arises and the Chief Justice is an applicant for a position, there is no procedure whereby the Chief Justice can be substituted in relation to that commission meeting. If, for example, the President of the Court of Appeal stepped out, there is a process whereby he or she can be replaced. Perhaps I misread that. In section 9, there appears to be provision for replacement of certain members, and certainly replacement of the Chief Justice as chair if the Chief Justice were there. However, if the Chief Justice is an applicant under section 45(1)(a), am I right in saying, therefore, there are seven voting members of the commission rather than eight?
Since we are discussing it, not because it is important but because I see it, section 45(1)(b) appears to contain a typographical error. Just at the beginning, the spacing is wrong. It is not an important point, one way or the other, but I thought I would say it given that I am an uber-pedant.
I think it does, in fact.
On a slightly different point, in relation to subsection (4), the Judicial Council appoints a substitute member if one of its elected members is looking for promotion or whatever. Are they free to nominate any member to be a member of the commission? For instance, if the person for whom the substitution is made was originally a barrister, can he or she appoint a judge who was originally a solicitor as the substitute or does that balance still apply as between solicitor judges and barrister judges?