Gerry Horkan (Fianna Fail)
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Amendments Nos. 41 to 44, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed. Amendments Nos. 42 to 44, inclusive, are physical alternatives to amendment No. 41. If amendment No. 41 is agreed, these amendments cannot be moved.

Barry Ward (Fine Gael)
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I move amendment No. 41:

In page 44, to delete lines 13 to 40, and in page 45, to delete lines 1 to 26.

This series of amendments is grouped together. Those in my name are amendments Nos. 41 and 44. Amendment No. 41 proposes to delete section 45A which has been inserted in the Bill. Section 63(e) inserts a new section that deals with the “Qualification of certain legal academics for appointment and for nomination for appointment or election to judicial office". I am essentially proposing to delete paragraph (e) on page 44. The reason is that there is a misconception that academics should be people who would be put into judicial office. I do not have any difficulty with that per se. It is important that judges have an academic capacity because they need to understand the academic issues that underpin decisions. First and foremost, however, a judge's role is to govern a court, which is all about practice and procedure. It is less about the academia of the law. While judges need to have an understanding of that, the danger is that if an academic has not been in day-to-day practice over a regular period, he or she would not have the same familiarity with the practice and procedure. The difficulty that gives rise to is that he or she will not understand how the court works. When a person is the referee or chair of the court and responsible for the control and conduct of that court, it is very difficult to throw him or her in at the deep end in this regard and expect that person to understand how the court works and how procedures should operate in an efficient way. That is why I am proposing that those qualification matters inserted by section 63(e) be removed.

Amendment No. 44 is related to paragraph (c) of the inserted section 45A. I am open to correction in this regard but this appears to create lesser qualification criteria for academics on the basis that they somehow have a greater qualification than those who are in practice.Section 45A(1) provides that "A person shall be qualified for appointment and for nomination for appointment ... where he or she is ... for the time being ... a legal academic". However, it goes on to state that he or she must have "practised as a barrister or solicitor for a continuous period of at least 4 years." In the normal course, for those barristers and solicitors who are not coming from an academic basis, and I recognise that the proposed section 45A(1)(a), for example, requires a standing of at least 12 years as an academic, that is honestly a somewhat nebulous requirement. It is very difficult to establish what qualifies for establishment of that standing as an academic. Even leaving that aside, the section then creates a lesser requirement of academics, if they were to seek appointment through the Judicial Appointments Commission, of only four years' practice when the requirement is much higher for people who are actually in practice and may not have held academic office for 12 years. That is an erroneous basis on which to seek to admit academics to judicial office.

I will come back to the point I made in respect of amendment No. 41. As the Acting Chairman pointed out, amendment No. 44 is an alternative to amendment No. 41. If we want to put academics on the Bench - again, I do not have a problem with that per se- the problem arises whereby there is no provision or requirement that they have a clear understanding of how practice and procedure works. It is very difficult to have that understanding if someone has spent his or her time in a university or in a lecturing context. Those people have extraordinary skills and understanding and a greater depth of knowledge of the law than many practitioners. They do not have the same depth of knowledge of the practice of law as practitioners.

If amendment No. 41 is not to be accepted, the four years provided for in the inserted section 45A(1)(c) should be increased to ten years as per amendment No. 44. If anybody expects to be in a position to arrive into a court as a judge or judicial figure to preside over that court and make decisions about the appropriate conduct of practitioners or litigants, or about issues before the court where he or she is deciding on motions regarding practice and procedure, the notion that a person would only have had four years of experience of that practice and procedure is simply foolhardy. That is why amendment No. 44 proposes to extend that period, which is currently four years in the Bill, to a ten-year period.

As I said, these two amendments are not proposed because I have disrespect for academics; I have enormous respect for them. I also acknowledge as a practitioner that they have a great deal more understanding of the law than I do, most likely. However, I suggest they do not have a greater understanding of how the court works. If therefore we want to put them on the Bench, it would make more sense to ensure they have a minimum level of experience of how the court actually works. That is the idea behind the amendments.

James Browne (Wexford, Fianna Fail)
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I thank the Senator. Amendments Nos. 41 to 44, inclusive, are being taken together. Their purpose is to amend section 63, which is an important section. Section 63 provides for amendments to the Courts (Supplemental Provisions) Act 1961, including the insertion of a new section 45A to provide for the qualification of certain legal academics for judicial office as an additional basis for qualification.

The new section 45A provides that a person who is a legal academic or who is the head of a faculty in an educational establishment, and who has practised as a barrister or solicitor for at least four years, shall be qualified for nomination for appointment or election to judicial office. A legal academic is a person who is a permanent member of the academic staff in the field of law in a specified education establishment, including a university, the King's Inns or the Law Society of Ireland.

Amendment No. 41 would delete all of the new section 45A. The effect of that is, of course, that a legal academic would not, in fact, be eligible even for consideration for a judicial appointment. In my view, part of the significance of this Bill is that it goes some way to extending the pool of eligible candidates for judicial appointment. District Court service will now qualify as will employed barrister service.

The third category to which the Bill extends eligibility is legal academics. It is generally and widely recognised that legal academics are well placed to provide legal opinion across a range of matters, and many have significant depth of knowledge and expertise in particular areas of the law. The new section 45A has been tightly drawn. First, a legal academic who is an applicant for judicial appointment must be of not less than 12 years' standing in that role and be currently employed in that capacity. The applicant must also be a qualified barrister or solicitor. The applicant must have practised as a barrister or solicitor for four continuous years and many, of course, will have more practice years than that.These are quite exacting requirements as to eligibility. On top of that, such an applicant must be suitable in other respects, as the Bill requires, such as for example on health grounds, compliance with regulatory law and being in a position to provide the required information. Such applicants must undergo the selection procedures, including a requirement to be interviewed by the commission and, therefore, I cannot support the amendment. The requirements set out are demanding and the addition of knowledge and expertise from within the academic legal field in a court environment is a significant and important addition to eligibility range.

The Senator's amendment also proposes to amend section 63 by the insertion of a new section 45A dealing with legal academics. As I have indicated in respect of the previous amendment, the legal academic who is an applicant for a judicial appointment must be of not less than 12 years standing in that role and currently employed in that capacity, which bears repeating. In addition, the applicant must also be a qualified barrister or solicitor. The applicant must have practised as a barrister or solicitor continuously for four years. Many will, of course, have more practice than that.

The amendment would retain the possibility of legal academics being considered for judicial appointments, but only if those applicants have, along with 12 years standing as an academic, ten years' practice as a barrister or solicitor. The Senator might accept that there is a logic in extending the edge of eligibility criteria to legal academics. However, the extended four-year requirement to have previously practised on a continuous basis to ten years would be problematic and unreasonable. This is exacting, unlikely to be generally achievable and, therefore, not entirely practical. Four years' practice as a legal professional strikes the proper balance between the competing experiences and practices required in this context. On that basis, I cannot accept the amendment.

The applicant will be required under the selection statements to demonstrate that he or she has undergone professional development or training relevant to the role of a judge. The Senator might agree this is relevant to the matter we have debated. Senators Ruane and Higgins have also tabled amendments to this section. I am not sure whether they have moved those amendments.

Gerry Horkan (Fianna Fail)
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That remains to be seen.

James Browne (Wexford, Fianna Fail)
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The purpose is retaining the new provisions extending eligibility to legal academics while modifying the requirements somewhat. This may come from a different perspective to that of Senator Ward, specifically reducing from 12 to ten years the standing term of years required for an employed legal academic or as part of the eligibility requirement of the head of faculty in an educational establishment. The provisions of the new section are balanced.

As I have indicated in respect of another amendment, it seems reasonable to increase the requirement for the duration of legal practice or to reduce the requirement in this case in respect of an employee's standing term of 12 years. On that basis, I am not prepared to accept amendments Nos. 42 or 43.

Gerry Horkan (Fianna Fail)
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I thank the Minister of State.

Michael McDowell (Independent)
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A couple of different points arise on the section that I want to ask a couple of simple questions on. Persons will be considered legal academics if they have been in a place equivalent to an Irish university but outside of Ireland. As a matter of law, is there a requirement that a person should be an Irish citizen? It is not necessary to be an Irish citizen to be, say, a barrister or solicitor, subject to what Senator Ward would say. Is it to be the case that a professor of law in Oxford can, although a subject of His Majesty, become a member of the Irish Judiciary? I am interested in hearing some illumination on that point.

On the question of legal academics, academics are suitable for appointment to some kinds of cases in some circumstances. I do not know what kind of experience being a legal academic would assist one in an application to become a district judge or something like that. I can imagine a world class expert who happened to be a legal academic in European law or the law of trusts, equity or whatever would be a significant addition to the Irish Judiciary. I have no principled objection to learned people becoming judges. As I understand the new section 45A, at some stage in their career applicants will have to do four years of practice as a practitioner.It is not as though they would be totally unaccustomed to the practice of law.

The rules of this House prevent me from putting down an amendment to a Government Bill which might have the effect of imposing a charge upon the Exchequer. If that rule was not there, there is one point that I would have tendered an amendment to achieve. When Alan Shatter was Minister for Justice and Deputy Howlin was Minister for Public Expenditure and Reform, they pushed through a pensions provision as part of a massive Act. Deep within the Schedule there was, without any explanation, side note or warning as to what it entailed, a provision deleting "15" from an Act and putting "20" in its place. The consequence of that particular provision is that with a retirement age of 70, one has to be appointed at the age of 50 in order to qualify for a full judicial pension. This means that if people really get their skates on in being appointed as judges, they need to be considering in their late 40s getting their curriculum vitae polished up and making their few attempts at being interviewed by the judicial appointments commission, if it is established.

It seems to me that there was absolutely no reason to make that change. It was pure meddlesome vindictiveness at the time. The curious thing is that it was never mentioned in Dáil Éireann, in any explanatory memorandum or in this House that it was being done. It was simply hidden away in a Schedule to a pensions Act. There was no publicity drawn to it. The attention of no Member of either House was drawn to it in an explanatory memorandum. The result was that many people who theretofore had considered practice until about the age of 55, with a view to having a judicial pension if appointed at that age, suddenly became disentitled to a full pension for no particular reason, except, as I say, meddlesome vindictiveness. It certainly had the effect of rendering a whole cohort of people unwilling to apply for judicial office thereafter.

I do not want to be too irrelevant, but I want to make the point that when we are considering appointing people to the bench, we should not close down options. We should not tell people who are in their early 50s, “Sorry, you are too late”. That is a mistake. It was an unforced error that can only be explained by some odd motivation. I have never heard a public explanation of it, of any kind. The one thing that is necessary at some stage is that somebody, perhaps in the position of the Minister of State here today, should actually indicate to the Houses that this will not happen again - that a sleight of hand of that kind will not be attempted again because it served no useful purpose. Those are the two points I want to raise, firstly the citizenship issue and secondly to make my point, irrelevant though it may be,-----

Gerry Horkan (Fianna Fail)
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If it was irrelevant I am sure I would have ruled it out and I did not, so it must be relevant in the eyes of the Chair at least.

Michael McDowell (Independent)
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-----that we should be trying to get people of high quality into the Judiciary and not closing off options and knocking people off the list of potential applicants for no good reason.

Gerry Horkan (Fianna Fail)
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I thank Senator McDowell. Senator Ward wanted to respond to the Minister of State, and then I will let the Minister of State respond to both Senators.

Barry Ward (Fine Gael)
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It is not that I disagree with Senator McDowell. I think this point is relevant to my amendment No. 45, under section 66. I might comment on it at that stage. However, in response to what the Minister of State said-----

Gerry Horkan (Fianna Fail)
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Amendment No. 45 is ruled out of order.

Michael McDowell (Independent)
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I told you.

Barry Ward (Fine Gael)
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In that case I will comment on it now. The amendment that I have at No. 45, which I was not notified was out of order-----

Gerry Horkan (Fianna Fail)
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According to my notes, it is.

Barry Ward (Fine Gael)
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I will comment on it under section 66. That is probably the most appropriate.

Gerry Horkan (Fianna Fail)
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I am informed it was a long time ago.

Barry Ward (Fine Gael)
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I have no doubt that it was a long time ago but I have an issue, I suspect.

Gerry Horkan (Fianna Fail)
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You can respond to the Minister of State on amendments Nos. 41 to 44, inclusive, for now.

Barry Ward (Fine Gael)
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I will respond to three points that the Minister of State made. The first relates to the qualification of academics to give solid legal opinion. I do not dispute that. I suspect that the legal opinion offered by somebody who is a world expert or a particular expert in the field is likely to be more considered and more focused than that of an ordinary practitioner in the same area. I can see the value of that. However, the purpose of a judge is not alone to give a legal opinion but also to preside over court proceedings and to render a judgment. A judgment differs from a legal opinion. The important difference between a legal opinion and a judgment is that a legal opinion sets out all the parameters but does not actually come down on either side of the fence. That is the true skill. That is a skill that must be ascribed to Ministers also. People do not necessarily understand that the job of Minister is not necessarily to know everything or to be an expert on everything, but to have the key skill of being able to make decisions that are ultimately saleable and reconcilable. That is a similar skill to that we expect from judges. They are people who can look at multiple sides of an argument and arrive not at an opinion as to what the law on the subject is, but on what the decision in regard to that particular question must be. Frequently, cases come before the courts not for general discussion but for a decision on what is often a very minute question within a particular area of law. The job of a good judge is to consider all those factors but ultimately to arrive at a conclusion that is fair and based on the law - not just to have an opinion but to have an actual judgment that is reasoned and defensible in terms of what appeal might come thereafter. Therefore, I do not accept that the ability of an academic to give a super legal opinion is necessarily a skill that we would require of a judge. I agree with what has been said about the possibility of academics having a particular role. That would particularly apply in the Court of Appeal and the Supreme Court, where they form part of multiple judge panels and the practice and procedure of the conduct of the case falls less on one set of shoulders than it does on multiple sets of shoulders.

The Minister of State said that many of them will have more experience. That is undoubtedly true but we are not setting the parameters for that. We are setting minimum parameters here and the provision set down in the proposed new section 45A(1)(c) is a minimum of four years of experience. Of course many of them will have more experience but that is not the consideration we have here. More importantly, it is not an additional requirement because as the Minister of State knows, many legal academics will also be engaged in practice. The frailty of the definition of "continuous" when considering what constitutes somebody who is, as per the proposed new section 45A(1)(a)(i), "a legal academic of not less than 12 years’ standing who has been employed as such for a continuous period" arises in this context. The frailty of the strict definition of what constitutes "continuous" employment as a legal academic also applies to practice. Some people are in practice because as solicitors they have a practising certificate, or as barristers they are enrolled with the Legal Services Regulatory Authority or are members of the Law Library of Ireland, however costly that might be in regard to insurance or other regulatory costs. They can be in practice yet not appear in court. They can be in practice yet not do the day-to-day work of a practitioner.

While there are difficulties with the definitions, I am not suggesting a change that would impose the four- to ten-year requirement in addition to the 12-year requirement because that would mean that nobody could become a judge, as an academic, without having done 22 years of work. That is not what I am suggesting. I suggest that many of those people who will apply from academia will also have been practitioners for some period, or all of the period, in which they worked as academics. That is true of many of my colleagues at the Bar who also lecture in august institutions such as University College Dublin and Trinity College Dublin. It is not an impractical obligation to have somebody with ten years' practice. I do not agree with Senator McDowell. He is quite correct to say that four years' practice connotes some period in the courts and some understanding. I do not think any of us will be endorsing the notion that fourth-year barristers or four-year post-qualified experience, PQE, solicitors should be taking the Bench on the basis that they have four years' experience. That is why the requirement for those practitioners is 12 years. I have a difficulty with equating a legal academic and legal expert with the judge of a case. I do not think that the two are necessarily equal and they do not necessarily cross-qualify. There is a gap, primarily in the context of section (1)(a)(i). If one were relying primarily on that academic qualification in the context, for example, of courts like the Circuit Court or District Court, it would be a very little use because they are primarily courts that are concerned with practice and procedure, and there are not written judgments, for example. Such a person would be underqualified to be a judge in those courts. That is why I have suggested they should have a greater understanding of practice and procedure, through practice and living what it is to be in court. In this way they would see it from the point of view of practitioners. They would see how cases work and how the practice and procedure is used and sometimes abused, to be honest. They would see how the rules of court can be used to achieve certain ends that may not be in accordance with justice. If a person does not have that experience and then sits on the Bench, it could be very difficult to see through what practitioners are doing. The benefit of that time at practice, doing the same thing oneself, is that a judge is a poacher turned gamekeeper, in many respects. If one has not spent that time poaching, then one will not understand the tricks of the poacher. That is the point I am making. I do not think it is impractical, erroneous or unreasonable to increase the period from four years to ten years as per amendment No. 44.

James Browne (Wexford, Fianna Fail)
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There is no requirement in this legislation, as drafted, for somebody to be a citizen. I will not comment on the 2015 years but the Senator has made his opinions very clear. Regarding the core requirements set out for academics, these are, I expect, the minimum to apply. Obviously they would have to demonstrate to the commission their ability to apply good judgment.

I agree that to sit on the Bench, being able to form an opinion is only one step towards what would make somebody a good judge. A person might be very good at practice and not very good at opinion or vice versa. However, a judge has to be good at both and be able to apply opinion to a practical situation in front of them and to be able to do so in a common sense and humane manner. No matter how intelligent or capable people are, not everybody is always able to show what we would call good judgment. Unfortunately, I have to oppose the amendment. This provision is simply the minimum for someone to be able to apply. Beyond that, applicants would have to demonstrate a lot more skills to the commission before they would even come to the point of being recommended to the Government as one of three candidates to be appointed.

Michael McDowell (Independent)
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On the citizenship point, I may put down an amendment on Report Stage to remedy what is clearly a lacuna in our system. One has to be a citizen of Ireland to be a Member of this House and the Dáil and for many other purposes. It is strange that one can interpret the Constitution while not owing the duty cast on citizens by the Constitution, I think in Article 8 or Article 9, of a fundamental duty of fidelity to the nation and loyalty to the State. I think it is strange that we allow non-citizens to become members of the Judiciary.

Barry Ward (Fine Gael)
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I move amendment No. 44:

In page 44, line 34, to delete “4 years” and substitute “10 years”.

Gerry Horkan (Fianna Fail)
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Amendment No. 45 is out of order as it is not relevant to the subject matter of the Bill.

Barry Ward (Fine Gael)
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I accept what has been said about the nature of amendment No. 45 being out of order. In the context of section 66, which amends section 22 of the 2001 Act, and what Senator McDowell has said about the changes that were made previously in relation to judicial pensions, it is also important to note that that decision also caused a flight of sitting judges because of the additional provisions that are required for them in terms of pensions. They left and, in fact, my understanding is that there is a single judge of the superior courts, so between the High Court, the Court of Appeal and the Supreme Court, there is just one judge in the same position he was in at that time. There has been a massive change over of personnel in the superior courts since those rules were brought in and I do not think that is accidental. I think the two facts are connected.

Another retrograde step made in that regard was to reduce the retirement age from 72 to 70. The difficulty there is that it flies in the face of what we are doing in other respects. At the same time that people are talking at a European level of increasing the retirement age from 65 to 66, 67 or whatever it is that people are saying, we have reduced the retirement age for judges from 72 to 70. That was done, I think, in 1995 or the mid-1990s but it fails to recognise the fact that people are very well able to work beyond the age of 71. It would have, to some extent, dealt with the issue that Senator McDowell raises because it would have meant 52 rather than 50 years in order to get the full pension.

I recognise that I am running out of road at this stage but it is regrettable that we cannot acknowledge the fact that people in their 70s are well capable of discharging the duties of judges, particularly those who have been in that position for decades. We lose manpower by not doing that. Even if we were to put into place a requirement that from the age of 70 judges renew their mandate every year with the president of the court in question, in case any issue were to arise health-wise or whatever it might be. We should do that and remove the age cap on retirement, full stop. As long as the president of a given court, the Chief Justice or the Minister for Justice, if needs be, has confidence that the person continues to be in a position to discharge his or her duties, we should allow that judge to continue. I think of great judicial figures we have in this country. We have lost people like Ms Justice Mary Laffoy and Ms Justice Mary Finlay Geoghegan, excellent judges who retired at the peak of their powers, in many respects, but had to do so because of the rule that was brought in 1995. I also recognise the amendment is out of order so I will not speak on it.

James Browne (Wexford, Fianna Fail)
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The standard compulsory retirement age in the public service was consolidated, following the enactment of the Public Service Superannuation (Age of Retirement) Act 2018, to the greatest extent possible at the age of 70. This position represents current Government policy and is a position which the Department of Public Expenditure, National Development Delivery Plan and Reform seeks to implement in a consistent manner in order to protect the integrity of the policy. In short, Government policy is to maintain a standard compulsory retirement age at the age of 70 across all of the public sector service. There are no plans to extend the retirement age for judges

Michael McDowell (Independent)
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That is the baleful eye of the Department of Public Expenditure, National Development Plan Delivery and Reform. It has very little to do with the Department of Justice as I knew it.

Gerry Horkan (Fianna Fail)
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The Senator would know the Department better than most.

Gerry Horkan (Fianna Fail)
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Amendment No. 46 in the name of Senators McDowell, Boyhan, Craughwell, Keogan and Mullen is out of order as it is not relevant to the subject matter of the Bill. Amendment No. 47 in the names of Senators McDowell, Boyhan, Craughwell, Keogan and Mullen is also out of order as it is not relevant to the subject matter of the Bill.

James Browne (Wexford, Fianna Fail)
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We have been notified of a requirement to amend the Bill arising from the recent change of title as it relates to the now Department of Expenditure, National Development Plan Delivery and Reform and the several references to the Minister of Public Expenditure in the Bill which will now need to be changed.It is the advice that we will seek to bring forward amendments on Report Stage in the Seanad.

Gerry Horkan (Fianna Fail)
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We have seen that a few times recently in respect of other Bills. Does Senator Ward wish to speak to section 67? We have moved on from that.

Barry Ward (Fine Gael)
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I will respond to what the Minister of State said on the same section. Correct me if I am wrong, but that is the only amendment to this Bill that will be brought forward in the Seanad. It will require the Bill to go back to the Dáil. In those circumstances, given the Bill is going back to the Dáil anyway, can greater consideration be given on Report Stage to some of the amendments we tabled? I understand, especially with longer and complex Bills, there is often a desire to avoid the necessity to go back to the Dáil for certain smaller amendments. However, in the course of the discussions we had on this Bill in this House, some things arose that merit a little thought by the Department. I hope the Minister of State and the other Ministers in the Department will ask the officials to cast an eye over some of the amendments that have been tabled to consider whether there might be room to introduce or accept them on Report Stage, if the Bill is to go back to the Dáil in any event.

Gerry Horkan (Fianna Fail)
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Section 67 has been agreed. Does Senator McDowell wish to speak to section 68?

Michael McDowell (Independent)
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There was an amendment in my name. Has it been ruled out of order?

Gerry Horkan (Fianna Fail)
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It has. Both of them.

Michael McDowell (Independent)
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Curious. Can I just say what it was about?

Gerry Horkan (Fianna Fail)
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You cannot really because the amendment is out of order. The Senator can speak to the section if he wants.

Michael McDowell (Independent)
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The point I am making is very simply this-----

Gerry Horkan (Fianna Fail)
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The Senator is generally well able to negotiate the Chair's rulings.

Michael McDowell (Independent)
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We are amending the Judicial Council Act. There is a clear typo in that Act, which the amendment I tabled was designed to deal with. At present, subsection 50(4) of the Judicial Council Act 2019 states: "A complaint may be made under subsection (1) on behalf of ... a member of the [Bar] Council ... by a duly authorised officer of the General Council of the Bar". That was just a mistake; it was meant to state "barrister" and not just "member of the Bar Council", which would be about 20 people. I raised the matter informally at the time and was told the Department proposed to deal with it in other legislation. Bearing in mind what Senator Ward said, at the time it looked like this unconstitutional juggernaut would proceed without any amendment in this House-----

Barry Ward (Fine Gael)
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I do not think that is what I said.

Gerry Horkan (Fianna Fail)
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Is that Senator Ward's phraseology?

Michael McDowell (Independent)
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-----and therefore become law once proceedings in this House were completed. Now there is a clear opportunity to take out the mistaken words and substitute the correct ones. There is every reason, given we are amending the Judicial Council Act, to correct a clear mistake of that kind. That is as far as I will put it.

Gerry Horkan (Fianna Fail)
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I thank the Senator and the Minister. I will put the question.

Michael McDowell (Independent)
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By the way, there is a method to do it, even if it is outside the scope of the Bill and I have to defer to the ruling of the Acting Chair. That correction to the Judicial Council Act can be dealt with under the rules of this House. If there is a will to do it, it can be done.

Michael McDowell (Independent)
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I will say a few things about the Schedule. I will not detain the House long. The Schedule deals with the constitution of the commission and sundry provisions relating to its procedures and staff. I will take the opportunity to reiterate that the Constitution adopted in 1937 accorded to the Government of Ireland, a democratically elected body, the right to choose from eligible people who should be judges. That is a cornerstone of our Constitution. Other people do not like it and have said from time to time that there should be a different way to select judges in Ireland. The former Minister for Transport, Tourism and Sport, Shane Ross, at one stage proposed a constitutional amendment whereby a committee of Dáil Éireann would approve judges and, believe it or not, a majority of the members of that committee would have to be drawn from the Opposition. That proposal went nowhere but when he eventually got into office he proposed the Judicial Appointments Commission Bill in its original form.

We are now putting in place a body, described in some ways in this Schedule, which is to be composed of four judges, four non-lawyers and the Attorney General, who is excluded from having a vote, implying the rest can vote. The outcome of this is that the four judicial members - two of whom will be elected by Judicial Council members having previously been a solicitor and barrister and two of whom will be officeholders from the Judiciary - will have a veto over the appointment of anybody as a judge in Ireland from now on. There is no provision for a casting vote for the chairman. Senator Ward tabled an amendment in respect of this but it was not acceptable to resolve a division of that kind, which means the Judiciary has a blocking vote on anybody being made a judge. These four judges also have a blocking role for anybody being promoted from one court to another. There is no way around that. The Minister of State has frankly admitted that if this Bill becomes law, and survives constitutional scrutiny and challenge, it will be unlawful for the Government to appoint anybody who did not get the nod from those four judges. That is what we are now entering into.

I do not know why it is thought that this legislation is necessary. I previously dubbed it a solution in search of a problem. Its clear effect is to provide that of the current Supreme Court, when a shortlist of three is drawn up for the position of Chief Justice, five members at the very least - and maybe, with legal and academic people or people from the Court of Appeal or the High Court, up to seven members - will become persons who cannot lawfully be appointed to become Chief Justice. I will simply say that flies in the face of the Constitution. To say that five members of the Supreme Court - a majority of members - can, by a decision of four other judges, become ineligible to serve as president of their own court is a breach of fundamental constitutional principle. Successive Attorney Generals have ignored this problem. It will have to be tested in the Supreme Court under Article 26 or through the ordinary courts at some stage, which it will be because any citizen would have locus standito challenge an Act of this kind that trammels the separation of powers in this way.

I believe the mumbo jumbo in the Long Title of this Act referring to European law is there to try to put a veil of respectability over what is fundamentally an unrespectable assault on the separation of powers. The Houses of the Oireachtas may believe they can by legislation curtail the right of a government, on this occasion, to a shortlist of three that excludes five members of the Supreme Court.A different, more malign Government - I have a document here which I am perusing at my leisure - will be able to do similar things. If this is found to be constitutional, it will be able to determine with much greater detail who and what kind of person will become a judge and the Government's role will perhaps be reduced still further. I want to clearly signal my complete disagreement with this legislation.

Attorneys General differ over time. The former Attorney General, Dermot Gleeson, advised the Government of the time regarding the Judicial Appointments Advisory Board. It was an advisory body, which did not deal with judicial promotions and did not bind the Government's hands to appoint any particular person or from any particular group of recommended people. That was his advice at the time. If I had been Attorney General then - this issue never arose when I was Attorney General - I would have advised the Government that this is unconstitutional and a violation of the separation of powers. You can appoint laypeople, for example, to a sentencing guidelines body and give the sentencing guidelines some kind of legal force. However, that in itself is an incursion on the judicial function. Here we are now with a situation whereby the Government is for the first time being told that it cannot look down the list of eight members of the Supreme Court and say we prefer that candidate because of his or her philosophical attitude to any of the three candidates that these four people have put before us, who may be drawn from the High Court or from wherever else, and we have a constitutional right to appoint any member of the Supreme Court to be Chief Justice. I believe that constitutional right cannot be taken away and cannot be legislated away.

This is a shameful day given that this legislation is proceeding in the way it has. I think it is fundamentally mistaken. The saddest irony of all is that it is even worse than the Bill the former Minister and Senator, Shane Ross, twisted the arm of the present Taoiseach to proceed with during the lifetime of the previous Seanad. This is even worse. We do not need a self-appointing or self-selecting Judiciary. We just simply do not need it. It is wrong. The Government is the democratic body which, under our Constitution, carries out that function. In every self-respecting common law jurisdiction with a written constitution anywhere in the world, it is the government of the day that makes these decisions. That includes New Zealand, Canada, Australia and even America, with congressional involvement. In any self-respecting common law jurisdiction with a constitution, it is to the executive to which that power is given. The constitution gave it to the executive and it cannot be legislated away unlawfully, in my view.

Michael McDowell (Independent)
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The Title is not agreed.

Barry Ward (Fine Gael)
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Is there a difficulty with me speaking on the Long Title?

Gerry Horkan (Fianna Fail)
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The Senator may speak after the vótáil.

Barry Ward (Fine Gael)
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There is a difficulty with that. The reason I want to speak on the Long Title is to raise an issue of report. Am I precluded from doing that?

Gerry Horkan (Fianna Fail)
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I do not think so. The Senator may speak after the vote.

Barry Ward (Fine Gael)
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I want to make brief reference to the Long Title so that I can raise an issue on Report Stage. I want to mention three things that may be of interest to the Minister of State's officials in the context of possibly raising them on Report Stage. They are arguably semantic but they are important nonetheless. They relate to page 5 of the Bill and the Long Title. On line 13 I am suggesting that there should be comma after the words "making" and "Commission", which would make it consistent with line 10, where those commas have been inserted. The second suggestion is to remove the word "the" as it first appears in line 17. The third suggestion is to insert a comma after "the Standards in Public Office Act 2001" in lines 29 to 30, which is an Oxford comma but notwithstanding that, I believe the insertion of a comma would improve the reading of the Long Title.

James Browne (Wexford, Fianna Fail)
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I will bring those suggestions to the attention of my officials.

Jerry Buttimer (Fine Gael)
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When is it proposed to take Report Stage?

Barry Ward (Fine Gael)
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Next Tuesday.

Jerry Buttimer (Fine Gael)
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Is that agreed? Agreed.

Jerry Buttimer (Fine Gael)
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When is it proposed to sit again?

Barry Ward (Fine Gael)
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Ar a 10.30 a.m. amárach.