Jerry Buttimer (Fine Gael)
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Before we call the speakers on this matter, I welcome to the Public Gallery the friends of Senator Clonan, his son Darach, who has just finished his exams, together with the final year students of law from UCD and Trinity College Dublin. Their final exam was today and I find it extraordinary they are here in the Houses of the Oireachtas to observe the Members in action. I wish every one of them every success in their exams. We have eminent members of the legal profession in Senators McDowell and Ward and the Minister of State, Deputy Browne, present in the Chamber here today, and I am sure both Senator Ward, Senator McDowell and the Minister of State will be interrogating all of our visitors fairly soon. We hope the celebration is not just limited to being in the Public Gallery today with the finishing of our guests’ exams. I am not sure as a student of many years ago that I would be in Leinster House on the final day of my exams but I am equally sure it is just one part of our visitors’ journey and celebrations. I congratulate, wish all of them well and every success in their future careers, and thank them for being here.

Michael McDowell (Independent)
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On a point of order, when primary schools visit this House, the Cathaoirleach normally gives them their homework off for the day. Would he give these people a first-class honours in their exams?

Victor Boyhan (Independent)
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Or a bottle of beer.

Jerry Buttimer (Fine Gael)
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Our guests will be glad to hear that Senator McDowell is on the National University of Ireland panel and will be looking for their vote, whatever about the Trinity College panel. That is a great idea of the Senator's. I wish them all first-class honours.

Barry Ward (Fine Gael)
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When speaking on this amendment on the previous occasion, I was agreeing with the amendment in respect of the difficulty it places because it perpetuates something which I have described as the difficulty in this Bill from the point of view of failing to recognise that the people who take judicial office cease to be former solicitors or barristers and are in fact judges and that they carry out an important judicial office in that regard that does not tally with their descriptor as a former member of either profession. I believe it is unnecessary in the context of the Bill to describe them as such or to weight the members of the commission in that regard. By the same token, if a casual vacancy arises, to continue or perpetuate that unnecessary recognition of former professions is inappropriate. Although I agree with the amendment, I also recognise that it was something I put down on Committee Stage. It was not accepted then so I do not have any real expectation that is likely to change.

Victor Boyhan (Independent)
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It might change.

James Browne (Wexford, Fianna Fail)
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Amendment No. 12 seeks to amend section 12. Section 12 is a comprehensive provision setting out the arrangements for the nomination by the Judicial Council of members of the commission and it is important to be clear about these arrangements. The Judicial Council shall nominate two members of the council to be members of the commission and these nominees shall be appointed to the commission by the Minister. There are three criteria set out in respect of the nominations. Section 12(2) provides that “one of whom shall be a judge of the Supreme Court, of the Court of Appeal or a the High Court and one ... shall be a judge of the Circuit Court or the District Court”. This subsection further provides that one of the nominees shall be male and one shall be female. For clarity, section 12(2) also provides that one of the nominees shall be a judge who "at the time of his or her appointment as a judge, was qualified for such appointment by virtue of having been a practising solicitor and one of whom shall be a judge who, at the time of his or her appointment as a judge, was qualified for such appointment by virtue of having been a practising barrister".

It is my understanding from looking at the amendment that the Senators have no objection to this categorisation of the requirement Judicial Council nominees must have. The issue appears to be that when one of the judges is required to be replaced again by nomination of the council, these requirements should be dispensed with. My understanding of the effect of this, therefore, is that while the first two nominees would be selected on the basis of the three criteria I have spelt out, the first retiring nominee, for example, if it is a male judge, could be replaced by a female judge. Similarly, as judge nominees retire, the whole basis of nomination would unravel, and perhaps very quickly indeed. I am not in favour of that. The requirements are very reasonable. Nominations are in respect of both the higher and lower courts through the work of the commission. It is also essential there is a gender balance on the commission. This is provided for in the lay members and I believe it can also be provided for in Judicial Council members.

Senators will be aware that the Bill does not provide for a representation of nominees of the Law Society or the Bar Council on the commission. Judge members can bring a perspective reflecting prior practice in the two areas of legal practice. I believe that is a good thing and I am of the view it is adequate to achieve that purpose. These important characteristics will apply under the Bill to the council’s nominees and equally to all replacement nominees. It is reasonable and desirable that there is some certainty in the Bill with regard to what we are asking the council to do. I am not, therefore, in a position to support the changes proposed in section 12. I thank the Cathaoirleach.

Michael McDowell (Independent)
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I am interested in the answer the Minister of State has given to this amendment. During the past week I had the honour to be invited to the Law Society of Ireland to speak at a seminar organised by its students’ legal publication, theHibernian Law Journal. This was to commemorate 20 years of solicitors being appointed to the higher courts. In the course of that very interesting seminar, which I very much enjoyed, a number of judges, including Mr. Justice Quinn and former judge, Mr. Justice Michael Peart, gave their views about solicitor judges and barrister judges. The interesting thing was they both made it very clear that the day that they were appointed to the Bench, they regarded themselves simply as a judge and that their origin did not matter to them, honoured as they were to be appointed to the courts.I do not think the antecedence and whether a person was or was not, ten years prior to his or her election as a Judicial Council nominee to the Judicial Appointments Commission, and the fact that they were there quaa practising barrister at the time of their appointment or otherwise, makes very much difference. In fact, a former president of the High Court, Joe Finnegan, had spent many years in practice as a solicitor and had been at one stage the secretary of the Law Society. I say that just to show that these distinctions do not matter.

The point I made earlier is that with the Legal Services Regulation Act, which is now being slowly implemented, we have reached the point where solicitors and barristers can form partnerships together. Therefore, if they can form partnerships it is very difficult to understand in those circumstances why there should be an artificial barrier as to which of them should or should not be capable, in certain circumstances, of being elected by their fellow members of the Judicial Council to represent the Judiciary on the Judicial Appointments Commission. It is ludicrous that somebody after 15 years on the Bench is either qualified or disqualified for nomination by his or her fellow judges on the happenstance that ten or 15 years before, he or she, was at the time of their admission, a barrister or a solicitor, regardless of the fact that they could have spent the majority of their practice life as a member of the other profession.

I will raise just one other point that the Minister of State has raised, which is that we now have a clear distinction in legislation being put forward by the Department of Justice between male and female persons, yet there is legislation coming before this House in the near future to say that gender can mean male or female, whichever gender you want to be a member of, transgender, and this remarkable add on - "and any other gender". I asked the present Minister for an explanation as to what other genders there were in addition to male or female, your preferred gender, or transgender, but I got no substantive reply. It is odd that we are segregating the Judiciary into male and female for this purpose, but we are coming into this House to say that gender no longer means male or female and that gender can cover virtually anything else. I just wonder how a single Department of State can be so worried about gender balance in the Judiciary and at the same time deny the very concept of gender as between male and female when it produces an incitement to hatred Bill. It is a strange thing to happen. I would love to know if somebody identified themselves as "trans" where they would feature on this spectrum of male or female. Can a judge opt to be regarded as male or female in order to be nominated? That is strange but that is apparently what the law is at the moment. Just in case the Minister of State is wondering about "any other gender", I took the trouble to research this on the Internet and discovered that there are 72 other genders, according to some American specialists, which is a remarkable thing.

In any event, I am saying that the fact that a person was a solicitor at the time he or she was appointed a judge ignores completely that he or she could have been a barrister until a year or two years prior to that. It ignores completely the fact that happenstance 15 years later speaks in no way to anything of significance as regards whether one should or should not be appointed to the Judiciary. The fact that we are now moving to a situation where solicitors and barristers can run joint practices as partners clearly indicates that this is an unjustifiable distinction.

I will finish by saying this: it is meant entirely to be a fig leaf for the complaints made by the Law Society of Ireland that it no longer has a representative on the Judicial Appointments Commission of any kind whatsoever. It was thrown this fig leaf that one of the judicial appointees, on the date of his or her appointment as a judge, would have been a member of each profession, as if that makes any difference whatsoever.

In the circumstances, I have to say that when Senator Ward tabled this amendment I was struck by its correctness. I am glad he is still of that opinion. I share his pessimism that it will be accepted, but in all the circumstances I must put the matter to a vote.

Barry Ward (Fine Gael)
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A Chathaoirligh-----

Jerry Buttimer (Fine Gael)
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Senator Ward cannot speak again. Is this a point of order?

Barry Ward (Fine Gael)
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Yes, it is a point of order. An issue has arisen in the reply for the proposer which was not discussed at any point up to now.

Jerry Buttimer (Fine Gael)
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That is not a point of order.

Barry Ward (Fine Gael)
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It is a point of order.

Jerry Buttimer (Fine Gael)
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No, it is not. It is not a point of order.

Barry Ward (Fine Gael)
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I am making the point of order that if that is done it encourages people to raise it.

Jerry Buttimer (Fine Gael)
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No, that is not a point of order. I thank Senator Ward.

Barry Ward (Fine Gael)
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If you let me finish making the point, a Chathaoirligh, you will see. It applies to the order because an issue has been raised that nobody has had a chance to address, including the Minister of State, and it encourages people to raise issues that are extraneous to an amendment if nobody is allowed to reply to them.

Jerry Buttimer (Fine Gael)
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That is not a point of order.

Barry Ward (Fine Gael)
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It cannot be in order to exclude other speakers.

Jerry Buttimer (Fine Gael)
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Gabhaim buíochas. Does the Minister of State wish to reply?

James Browne (Wexford, Fianna Fail)
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No.

Jerry Buttimer (Fine Gael)
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Amendments Nos. 12a, 12band 12care related and may be discussed together by agreement.

Michael McDowell (Independent)
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I move amendment No. 12a:

In page 13, lines 1 and 2, to delete “are suitable for appointment” and substitute “should be appointed”.

Sharon Keogan (Independent)
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I second the amendment.

Michael McDowell (Independent)
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In order for the House to understand the impetus behind these three amendments, it is necessary to look at section 13 in its entirety. Section 13(1) states:

The Minister shall from time to time as required, request the Public Appointments Service to undertake a selection process for the purpose of identifying and recommending to the Minister persons whom it is satisfied are suitable for appointment as lay members.

That is the test that the Judicial Appointments Advisory Board performs at the moment. It selects people who are suitable for appointment as judges.

Section 13(2) states:

Upon receipt of a request under subsection (1), the Public Appointments Service shall undertake a selection process and subject to subsection (3) recommend to the Minister, from among the persons who participated in the process, those persons whom it is satisfied are suitable for appointment as lay members.

As matters stand, it does not actually appoint or select the lay members from the people who applied. It is simply saying that these people would be suitable for appointment by the Minister. This is relevant because-----

Jerry Buttimer (Fine Gael)
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If I can interrupt for one second. The Madden family from County Cavan are in the Public Gallery and are about to leave. They were guests of Deputy Flaherty. You are very welcome and I thank you for being here.

Michael McDowell (Independent)
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I hope they have had a good visit to Leinster House.

It was emphasised previously in this debate that the Public Appointments Service will be some kind of independent body which will contribute to the independence of the commission. As we can see, all of this is simply a process for weeding out the people who are unsuitable. That is all the Bill actually does. In section 13(1) and (2), it is stated that certain people will be suitable for appointment. By implication, this means that those who are not recommended are unsuitable for appointment.

Section 13(3) states:

The Minister shall agree with the Public Appointments Service the selection criteria and procedures applicable to a selection process under this section having regard to-

(a) the objective that the lay members will, having regard to the functions of the Commission, amongst them possess knowledge of and experience, qualifications, training and expertise in the matters specified insubsection (4).

(b) the need, in so far as is possible to ensure that recommendations made under subsection (2)should comprise an equal number of women and men and reflect the diversity of the population of the State as a whole.

We stop there and say that in sifting out those people who are unsuitable that those involved should have in the back of their minds the need to have a gender and diversity balanced list for the Minister to look at. Section 13(3)(c) states: "the need to ensure that a person recommended to the Minister under subsection (2) is a fit and proper person to be a lay member." This is fairly obvious. Having said that they are suitable for appointment, one of the things that the Minister is entitled to do is to lay down selection criteria to ensure that they are fit and proper to be appointed.

Section 13(4) then states:

The matters referred to in subsection (3)are matters connected with-

(a) business, finance or public service,

(b) corporate governance and human resources (including making, or recommending persons for, senior appointments)

(c) the courts and the operation of the justice system both in the State and in places outside of the State and

(d) the importance of protection of human rights and equality.

That is strange, because now those are being included in addition to expertise, gender balance and diversity balance and the need to ensure that they are fit and proper people that they should also have regard to those criteria. This is the crucial subsection.

Section 13(5) states: "Subject to subsection (6), the Minister shall appoint lay members from among the persons recommended by the Public Appointments Service under subsection (2)." The consequence of that is that the Minister may get a panel of 20 people who are suitable for appointment. The Minister can then choose four from the 20 who proved to be suitable for appointment, having regard to the criteria laid down. This is an occasion where direct political discretion is vested in the Minister as to who the four lay people are, selected from a larger panel. What fascinates me in this context that this is accepted as being perfectly fine. The Minister for Justice decides on four names out of 20, and that is fine; that is independent and that is transparent. The Minister has discretion in this case. However, when the Government comes to look, for example, at the entire membership of the current Supreme Court, it is told that it cannot make a decision based on discretion.It will be illegal to appoint at least five members of the current Supreme Court to be Chief Justice if a vacancy arises in that office.

The point I am making is that when it suits the architects of this legislation to decry executive discretion as to who should be appointed as judges, they say there is something tainted about vesting a considerable amount of discretion in the Government. Under the Bill, however, open-ended discretion is given to a Minister to select from among the people ruled-----

Barry Ward (Fine Gael)
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Will the Senator accept a point?

Michael McDowell (Independent)
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Yes.

Barry Ward (Fine Gael)
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I am not sure if I have misunderstood the point because I agree with Senator McDowell insofar as I believe there should be greater political discretion. One of the downsides of this Bill is that it removes that. Surely the amendment he is suggesting would remove exactly the kind of discretion he is talking about. Would it not be favourable, therefore, to leave the language in section 13 as it is because it allows for that political discretion to be vested in the Minister?

Michael McDowell (Independent)
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No, for the very reason I will outline. The huge pretence in this legislation, which I believe is politically dishonest, is that we are going to have politically neutral appointments made in the future. What we are doing here is vesting in the Minister the right to produce four people, chosen by him or her, to be on the commission to mark the judicial members, so to speak.

Let me address the question of why, if one is in favour of discretion in the appointment of judges, one should be against it here. I will explain. Subsection (6) states the Minister shall not make an appointment of his four nominees unless he has gone to both Houses of the Oireachtas with those names and has approval from each House. He has to theoretically justify his choice of the four people, although it is not clear that the Members of the Oireachtas will be told whom he chose them from and who else was found to be suitable.

The point I find very difficult to accept is that subsection (7) seems to contain an anodyne little provision whereby, before the appointment, and just to get the whole thing up and running, the Minister can designate a person to be the first lay member of the commission. Subsection (9) implies a person designated by the Minister prior to the establishment of the commission shall not be the subject of any Oireachtas scrutiny at all. Where are we now? We are now in a situation in which the first tranche of so-called independent lay members is hand-picked by the Minister without any Oireachtas scrutiny whatsoever. That is what this Bill means. You have to read it very carefully but that is what it means. It means the Houses of the Oireachtas, on the first occasion the commission is established, will have no function at all in approving the people selected by the Minister in power at the time. That is quite a remarkable departure from the spin that has been put on this legislation, which suggests four lay people chosen by an independent body will be in place to act as a counterweight to the Judiciary. Four political appointees will be in place without any Oireachtas scrutiny whatsoever, having been appointed by a Minister who can appoint such people without coming next nor near the Houses of the Oireachtas. Why subsection (9) is included at all, I do not know.

If there are to be pre-establishment designations, why not say they have to be approved by the Houses of the Oireachtas? This is a deliberate ploy to take away from public scrutiny a highly political decision that will be made by the Minister without any Oireachtas scrutiny whatsoever. Who knows what parties will be in government when all this happens? Who knows who will be Minister? We are giving considerable power to some future Minister – maybe the current Minister will still be in office – to stack the commission at its outset with a number of nominees.

The next interesting point is that if you look forward to section 14(4), you see that this sneaky little ploy gets worse. It states that, subject to section 19(3), a lay member shall hold office for a period of three years from the date of his or her appointment, and that where the lay member’s term of office expires with the passage of time, he or she may be reappointed by the Minister to the commission for one further period of three years without a further recommendation by the Public Appointments Service or a further resolution under section 13(6), which is the resolution of either of the Houses of the Oireachtas. Therefore, what we are doing here is giving a licence for six years from the coming into effect of the Act to whoever is making the initial appointments to stack the commission with political appointees. It has got to be understood that this is what is going on. This legislation is far from what it is portrayed as; it is effectively giving the Minister for Justice, at the time it will come into operation, the right to determine who may be in place for six years thereafter without any say-so from the Houses of the Oireachtas or any public scrutiny.

I would be impressed if section 13 at least stated the Houses of the Oireachtas shall be informed, when the Minister comes up with his four names for approval, as to who else is on the list, but I am absolutely sure that will not be done. The Minister will not say A, B, C, D and E were rejected to come up with the list of four, nor will the Minister say 16 people in addition to the four were considered suitable but that he or she chose his or her own political appointees from the list to do his or her bidding. I refer to the making of highly discretionary and subjective decisions about who should or should not be on the shortlist when it is submitted to the Government.

I welcome Senator Ward’s comment but it is in the context of what I have outlined that the amendment is proposed. If we are to have a system whereby people apply to the Public Appointments Service and prove to be suitable, why not give the Public Appointments Service the right to state who the best people are? It is the service that will have interviewed the people. The Minister will not have done so. The Public Appointments Service, an apolitical body, will be considered to be in the best position to make a decision. If there are 20 suitable people, why should the Minister not say to the body that it should select the people and that he or she will go to the Houses of the Oireachtas and propose their appointment? However, none of this is included in the Bill. What we are dealing with here is the direct and diametric opposite.We are vesting in the Minister for Justice the right, prior to the first operation of this commission, to determine without any scrutiny whatsoever who the four lay appointees will be, provided that they have been seen as suitable by the Public Appointments Service, without any regard as to who the other people that service considered suitable were and without anybody knowing the basis on which the Minister made his or her decision to appoint them. It is an elaborate con job. I am quite happy to use that language about it because it is deliberately designed to create a smokescreen of impartiality while creating a situation in which people can be there for six years before anybody in these Houses can have any insight into how they got there, who they were preferred over and so on. There is no reason to include section 13(9). Why is it included in section 13? Why is it said that the people who are there on day one should not also be subject to parliamentary scrutiny? No reason for that provision is given anywhere. The explanation as to why no reason has even been tendered is very simple. This is a political con job on the Irish people. It is proposed with the hope that the Minister for Justice who is in office at the time this commission is established will be in a position to ensure that four people arbitrarily selected by him or her will be in office for at least three and possibly six years without any scrutiny. I find that repugnant.

Each of the amendments Nos. 12a, 12b and 12c simply state that the words “are suitable for appointment” should be got rid of and replaced with “should be appointed”. The Public Appointments Service should be given the role of saying that 12 of all the 20 people who applied are suitable and that a certain four should be appointed and instructing the Minister to go tell that to the Oireachtas. If the Oireachtas does not agree with the Public Appointments Service, it can always say "No" and refuse to pass the resolution. However, the secret appointment on a political partisan basis of four people, who are only required to meet the threshold of not being considered unsuitable in order to be deemed suitable, from a broader list of people is indefensible. That is why these three amendments have been put before this House.

I will make one other point. It has been stated on a number of occasions here that this Bill is somehow necessary to bring our system of appointing judges into line with European norms. The Long Title of the Bill seems to imply the same. I recently spoke to someone whom I will not identify but who is a very senior person in the court of justice hierarchy and that person told me that there is nothing wrong with the Irish system as regards European law and drew my attention to the case brought before the court of justice with regard to a change in the system of appointment to the constitutional court of the Republic of Malta. In effect, the court held that a member state such as Ireland that entered the European Union with its present system intact satisfied the criteria regarding the independence of justice at that time and that no further amendment was necessitated or indicated by the views of the European Court of Justice with regard to, for instance, the interference of the Polish Government in the tenure of Polish judges through recent proposals. I note that the decision was based in part on the opinion of the then advocate general, Gerard Hogan, an Irishman and a very considerable jurisprudent. The court's decision was clearly to the effect that there is nothing wrong with the Irish system at all. Europe should not be blamed for this. This is a different agenda.

I will go back to that seminar about solicitor judges. The Minister of State, Deputy Carroll MacNeill, was there and she made a very interesting point, which certainly struck home with me. She said that it was astonishing that, in the year 2014, some members of the Irish Judiciary approached the then Department of Justice and Equality to suggest that the system of appointment that operated to put them where they were needed to be reformed. I am always amused when I see people do something like that. I always say that everyone remembers and celebrates their own birthday but few people like to contemplate what happened nine months earlier. I make the point that the members of the Judiciary who claimed that there was something wrong with the system that put them in a position to approach the then Department of Justice and Equality to urge reform seemed to have forgotten that they were appointed under the very system they were putting in question. The Minister of State wondered why that was so and said that it was amazing that they did that but I know what it is all about. Some members of the Judiciary wanted then to arrogate to that same Judiciary a role in selecting its own members.

I want this House to know that, to my knowledge, when I was Attorney General and when I was Minister for Justice, Equality and Law Reform, on no occasion whatsoever did any judge, high or low, in any court ever make a representation to me or to Government that a particular person should be appointed to the Bench, promoted to the Supreme Court or whatever. Unfortunately, however, there was a lapse thereafter and some judges became active in deciding who should be appointed to their own courts and lobbying for other members of the Judiciary and for others who were not members of the Judiciary to become judges. That was wholly a departure from the previous convention, which was that the Judiciary did not trespass on the discretion of the Government. It was wrong that some senior judges became involved in campaigning, lobbying or whatever for people to be made judges or to be promoted to particular positions. That was very wrong indeed. The old system has delivered us a really good Judiciary, which is widely recognised and admired across the European Union for its quality, independence, impartiality and freedom from any taint of party political influence. This measure departs from that and hands to the Judiciary four people hand-picked by a political Minister in the way I have just pointed out is proposed under section 13 and states that it is superior to the system that has worked with great impartiality for most of a century.

When I say "great impartiality", I know that when I was Minister for Justice, Equality and Law Reform and when I was Attorney General, appointments were made regardless of people's political affiliation or their previous views of a party political kind. I am not going to embarrass anybody by mentioning names but there were former officeholders who were clearly identified in their youth with parties that had nothing to do with the two parties that were in government when I was there. They were appointed simply on their merit. There was no problem until certain people in the Judiciary decided they wanted to have a role in the construction of that same Judiciary. There was no problem until then but there is now this problem and this legislation. That is why section 13 is a fraud. It purports to state that there is some kind of independent process but, in effect, it gives the first Minister the right to appoint four people on the basis of political discretion without any supervision or transparency.