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 Senators 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.

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?

Or a bottle of beer.

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.

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.

It might change.

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.

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, the Hibernian 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 qua a 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.

A Chathaoirligh-----

Senator Ward cannot speak again. Is this a point of order?

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.

That is not a point of order.

It is a point of order.

No, it is not. It is not a point of order.

I am making the point of order that if that is done it encourages people to raise it.

No, that is not a point of order. I thank Senator Ward.

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.

That is not a point of order.

It cannot be in order to exclude other speakers.

Gabhaim buíochas. Does the Minister of State wish to reply?

No.

Amendments Nos. 12 a , 12 b and 12 c are related and may be discussed together by agreement.

I move amendment No. 12 a :

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

I second the amendment.

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-----

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.

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 in subsection (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-----

Will the Senator accept a point?

Yes.

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?

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.

That could possibly be the case for six years after the commencement of the commission. I regard that, in effect, as a fraud on the public. It is utterly inconsistent that a Minister could have such wide discretion in selecting who will be a lay member, while the Government could have no discretion in saying, for instance, that one or other member of the present Supreme Court could or could not be appointed Chief Justice because his or her name was not on a shortlist prepared by judges and the four political appointees for which section 13 provides.

I welcome to the Gallery members of the Ógra Fianna Fáil central officer board, who are guests of Senator Malcolm Byrne. They are in Leinster House to discuss the wonderful topic of Seanad reform.

The discussion is mainly about the university panels.

Senator Horkan knows far more than I do about the workings of Ógra Fianna Fáil.

I agree with some of what Senator McDowell said. I am blue in the face making one of the points he made, which is to acknowledge that we have a functioning Judiciary that has served the people of this country exceptionally well and also served our judicial and courts system very well. The rule of law is applied consistently by our judges. I also agree with what the Senator said about the lives of judges before they become judges and how that should not have and does not have an impact on their decision-making capacity as judges. Without thinking of any person in particular, there have been individuals who were formerly involved in politics who went on to become judges and were very good judges who, objectively, have done an excellent job. By the same token, it should never be the case that because somebody was previously politically active, he or she is therefore debarred from judicial office or any other of a list of offices. That is a danger that may arise in the context of this Bill.

I also agree with what Senator McDowell said about the comparisons with Europe. I am a committed Europhile. We have benefited enormously from our membership of the European Union, including from the work that has been done by the Council of Europe and is being done in Reykjavik this week. We must start with recognising that the judicial and legal systems that exist in almost every other country in Europe are dramatically different from what we have here. That civil system operating under the Napoleonic Code generates judges of a very different formation, training, history, culture and all the rest from the ones who exist in the common law system, under which the rule of law and application of precedent are central. Senator McDowell spoke about the reference in the Long Title of the Bill to the recommendation of the Council of Europe's Group of States against Corruption, GRECO, and the recommendation of the Committee of Ministers on judges' independence, efficiency and responsibilities. That reference probably is misplaced. The problem I have with it is that, as has been noted, it suggests we needed somehow to address this issue. I am happy to say there has never been a suggestion that there was corruption in the appointment of judges in the State. In the history of the State, it is almost impossible to point to judicial misconduct in connection with any suggestion of corruption in the manner of appointment. We have a tremendously proud tradition we can stand over in this regard. There is a maxim that if something is not broken, it should not be fixed. That certainly could be applied to judicial appointments in this jurisdiction. I said that on Committee Stage and it has been consistently reflected in the amendments I have put down.

Amendments Nos. 12 a to 12 c , inclusive, address provisions within the Bill that are important. There are two discrete issues to consider in regard to these proposals. The first is the issue raised by the amendments and the second is the issue that arises in amendment No. 12 d , which is not coupled with these amendments and will be discussed separately. I agree with the Senator on one issue and disagree with him on the other. In regard to this group of amendments, I disagree with him. One of the things he has railed against in the context of this Bill is the removal of political involvement in judicial appointments. We agreed on Committee Stage that there is an important role to be played by democracy, in the form of the Executive, in the appointment of judges in this country. The Judiciary is a branch of government. Once appointed, judges are not quite immune from removal but it does not really happen and, thankfully, it never really needs to happen. The point is that they are appointed for a long period but they still form part of government in this State insofar as the judges of the superior courts are tasked with and given responsibility for interpreting legislation, the Constitution and other statutory instruments that govern this country. They have a hugely important role. I can confidently say they discharge that role with ethical standards, the application of the rule of law and without fear or favour.

It is not referred to in this Bill, because it is a constitutional matter, but I recently attended the swearing in of judges in the Supreme Court. The oath that is provided for in the Constitution is grossly outdated in its undertaking to show no "ill-will towards any man". It also has a strong focus on being guided and sustained by God. I wonder about the applicability of that in a modern context. It is an issue Senator McDowell and I have discussed. It is something we should change and there is an opportunity to do so this coming November in the context of the referendum on women's place in the home. We should consider adding a proposal to change the oath judges must take, including using gender-neutral language. I am not able constitutionally to make such a move from the Seanad but I hope the Government will take it into account. The oath sworn by all judges who take office in Ireland is taken seriously. It requires them to apply the law without fear or favour and without ill will towards any person.

Unfortunately, I am at variance with the Bill in that I fully believe in the importance of a political role, by which I mean a democratic role, in the appointment of judges. To take that away, which this Bill proposes to do in many respects, is to take away the democratic element of the appointment of the Judiciary. That is problematic and it is not necessary. As we have discussed, the old system has delivered judges of a very high calibre. Where these amendments contradict that notion is in the fact, as I noted when Senator McDowell was introducing them, that they will remove that political discretion. The point he makes in regard to amendment No. 12 d is valid and I hope the Minister will give it consideration. He envisages a scenario, which is possible but I hope unlikely, in which the appointment of lay members is prolonged. The Senator referred to those appointees as so-called independent members. There is no suggestion in the Bill that they must be independent. The prolongation of their terms without democratic accountability is potentially an issue.

Amendments Nos. 12 a to 12 c , inclusive, seek to remove what is currently a ministerial discretion to appoint people who get through the Public Appointments Service, PAS, system. Instead, PAS is to be given the job of ranking candidates and giving a list of people it recommends to be appointed. It would make recommendations for appointment rather than just assessing for suitability for appointment. There are two problems with that. I have already gone into the first, which is the lack of democratic accountability with such a system. The second problem is the notion of PAS making the decisions on ranking people.

I understand where Senator McDowell is coming from when he says PAS will have interviewed the candidates and gone through a process the Minister has not gone through. However, this proposal is inconsistent with some of the pronouncements he has made elsewhere in the process of dealing with this Bill. He has suggested, and I agree with him, that we should retain the democratic element of ministerial discretion to the greatest extent possible. However, he has put down amendments that seem contradictory to that notion. Instead of vesting power in this instance in the democratically elected Government or Minister and, by extension, the Oireachtas, he is putting it into the hands of the Civil Service. The PAS is independent of the Government and apolitical, as it should be. There certainly is a role for it but there is always the possibility it will not select the best candidate because that candidate does not tick the boxes the Civil Service form requires him or her to tick. I say that without any criticism of the Civil Service, which has served this country well. There is a danger of constantly trying to force things into a metric that can be measured by a form. The reality is that this proposal would take us to a situation whereby judicial appointees are selected from those who fulfil a different standard from the one that has been applied until now.

It is one they have been assessed on and the system has worked but now we are saying we will put them into a system whereby they have to fulfil certain criteria, not one decided by elected representatives, the Executive or democrats but by civil servants and functionaries. I say that without criticism of civil servants but their role is different from that of those who make executive decisions. I cannot agree with amendments Nos. 12 a , 12 b and 12 c because, while it is arguably for good reason, they take away that ministerial discretion. The stronger point that is made is in amendment No. 12 d , which we will come to.

The second point Senator McDowell made was on the possibility of the application of section 14(4) and how there can be a continuation of a member's period for up to six years without Oireachtas discretion. There is merit in that amendment and we will come to it in due course.

There is another issue that has not been addressed and I put down amendments on Committee Stage on the make-up of the commission. The commission will have nine members but only eight voting members. The reality is that the way section 9, which establishes the make-up of the commission, is constructed creates a juxtaposition, and arguably an opposition, between four judicial members and four lay members, be they political appointees or otherwise. The danger is that those two may become groups, which I hope would not happen. In putting people onto a commission like this, both judicial and non-judicial, one hopes they will work for the best possible result but this section arguably creates an opposition between those two groups which will result in a stalemate. Nobody has explained to us how it will work if the vote is four against four. I put down an amendment that the Chief Justice should have the casting vote, which I saw as a reasonable solution to what was involved. Section 9(3) removes the vote of the Attorney General, so one ends up with eight voting members of the commission and if a vote is tied, there is no solution for how they go about doing their business. Notwithstanding that in most of these matters business is done much more by consensus than by votes, there is no way of ensuring that scenario will not arise. One way to prevent it would be to have an uneven distribution of votes such that, however people voted, there would have to be a clear vote on one side or the other, which is possibly unfortunate.

I refer to what Senator McDowell said about those appointments of laypersons. He raised the issue of whether the Oireachtas would be told, or not, from whom the selection had been made. We know clearly we will not be told from whom the selection will be made as we have never been told before about any of the other appointments that come through this House by resolution.

Senator McDowell also said it would be up to the Executive to explain to the Oireachtas why these particular people had been chosen but we also know from experience that this does not happen. What happens when resolutions come before this House is that a list of names is given and it comes before the House for decision. There is democratic accountability in that. There is no explanation or justification given, and I am not sure there should be either because I rely on discretion being exercised by a Minister and a member of the Executive and I assume due diligence has been exercised. Unless there are some genuine reasons a person whose name is on the resolution is objectionable, I do not have a difficulty with it being done that way. There is also an opportunity for me to make inquiries if I want to do so because the resolution is given to us in advance and we know, before we have to vote on it, who the individuals in question are. There is still a democratic element in that and the point Senator McDowell makes in No. 12 d is one that is worth considering because section 14(4) arguably creates the potential difficulty of removing this accountability to the Oireachtas, probably unnecessarily. Although I do not have a difficulty with the power of the Minister to reappoint someone, there is a streamlining and efficiency to that which makes a lot of sense. It is worthy of looking at the manner in which the appointment is made.

I cannot agree with Senator McDowell on these amendments. They further fetter the ministerial discretion that is important. They also further put into the hands of functionaries the decision-making function that should be exercised by members of the Executive and not members of the Civil Service. Successive Governments have far too often abdicated that responsibility and conceded the point, even though there is no basis for doing so, that there is somehow a need to do this in order to ensure transparency, efficiency, an absence of corruption, etc., when there is no suggestion that there is any corruption. If it is not broke, do not fix it. There is no need to make that change because there is no suggestion that we do not have a functional and effective Judiciary.

I support the notion of having greater accountability through appointment by a Minister who has been duly elected, is democratically accountable and can be taken out of office if he or she makes a decision incorrectly but that cannot be done, by the same token, to the Public Appointments Service, PAS. It is not accountable to the people in the same way a Minister is and it is not accountable to the polity of Ireland in the same way an elected person is. That is why I would much rather see greater power in this regard vested in accountable people being democratically elected people than I would in civil servants, who do an excellent job but who have a particular function. That is why I cannot support amendments Nos. 12 a , 12 b and 12 c .

Amendments Nos. 12 a , 12 b and 12 c are grouped. These amendments seek to amend section 13 of the Bill. Section 13 provides for the manner of selection and appointment of lay members to the commission. Lay members are selected by the PAS and appointed by the Minister. The criteria, that is, the knowledge and experience required of lay members, are set out in this section. I thank the Senators for their comments.

Amendment No. 12 a proposes to delete the words "are suitable for appointment" and substitute "should be appointed" in subsection 1. Amendment No. 12 b has the same effect in subsection 2 while No. 12 c is related. Amendments Nos. 12 a and 12 b both deal with the nature of the recommendation to be made by the PAS and would appear to impute the view of the PAS that, more than simply being suitable for appointment, the recommended persons should be appointed.

It is interesting that it is not being suggested that the Minister shall appoint the recommended persons. This makes sense as it is not inconceivable that at one particular time PAS could recommend more than four laypersons for four positions. If there is just one position, for example, more than one layperson might be recommended for it. If two were recommended, clearly two people could not be appointed to one position. While there is no particular expectation that the public appointments system will recommend more than the number that is required, this could not be ruled out and makes perfect sense if it was the case that two excellent candidates were recommended in respect of a single vacancy.

We would be disappointed if there was not a significant level of interest in these positions and numbers of eminently suitable persons. I suggest, therefore, that the Senator's suggested formula is not practical and is unnecessary. We are leaving it to PAS to put the best persons forward. These are the persons who will be appointed by the Minister or the appointment will be made from such persons. If it is the case that more recommendations than the exact number of vacancies are submitted, it would be by no means exceptional that PAS, in equivalent circumstances, would recommend more persons than there are vacancies. I see no reason, if any latitude or choice is available - and this may not always be the case - why the Minister of the day should not have an element of discretion. This is not unique. All of the persons must be suitable, fit, proper and qualified.

Laypersons of the sentencing committee and the conduct committee of the Judicial Council are recommended by PAS for appointment by the Government. It is then a matter for the Government to appoint persons from among those recommended. The suitability criteria for the commission of appointments will be rigorous, as the Bill provides, and the House can have confidence that the appropriate appointments will be made. Therefore, I cannot support amendments Nos. 12 a or 12 b . I also cannot support amendment No. 12 c , which would delete from subsection 5 the words "appoint lay members from among the persons" and substitute "appoint as". It is reflecting the approach the Senators are taking in amendments Nos. 12 a or 12 b , essentially providing that the persons recommended are to be appointed and that while it is perhaps likely that there will be an exact number of recommendations for the position available, it can never be otherwise.

I have indicated that I do not agree with this train of thought.

Some interesting points have been raised by Senator Ward. One of them, with which I agree up to a point, is that there appears to be an inconsistency in delimiting ministerial discretion at this point while arguing at later stages for governmental discretion of a far wider kind than this Bill, if enacted, will permit. I would gladly withdraw these amendments if I thought the Minister of State would indicate that he has, on consideration, decided that the whole idea of a shortlist of three people for the position of Chief Justice, thereby excluding five members of that court, was unacceptable. If I had any hint that anything has been said in the House by those who oppose this Bill because of its defects, I would be quite happy to be as consistent as Senator Ward wishes I should be.

I go back to the language that is used in the Bill. It is phony language. Subsection 2 states, "Upon receipt of a request under subsection (1) , the Public Appointments Service shall undertake a selection process". It does not undertake a selection process. It undertakes a vetting process to decide which of the people who have applied for consideration by the Minister are suitable and which of them are not. It is not a selection process. The reply prepared for the Minister of State contained the term "select". There is no selection. If I say "Would you mind selecting two members of the Seanad to do something?", and then I am told that does not mean select and asked if I would mind going over the whole Seanad and preparing a list of people who could be selected by somebody else, I do not carry out the selection. It is part of the fraudulence of the section that it suggests that lay members are somehow selected by the Public Appointments Service, PAS.

Let us consider the sentence again. It states, "Upon receipt of a request under subsection (1) , the Public Appointments Service shall undertake a selection process". We are then told that it is not a selection process at all. Rather, it is a vetting process or a weeding out of the unsuitable. That is all it means. Anybody who is suitable for appointment is to be placed on a list that will be handed to the Minister to make a selection. The language of the section is entirely designed to create the illusion that the PAS carries out a selection process. It does not. That irks me because it is not a selection process. It is a vetting process.

The only analogy I can see for calling it a selection process is the Judicial Appointments Advisory Board, JAAB. It goes through the people who apply to be made judges and indicate the people who are suitable for appointment. It indicates to the Minister, for transmission to the Government, the names of the people who, in its view, are suitable for appointment to be members of the Judiciary. That is the existing system.

If somebody told me that the JAAB carried out a selection process, I would say, "Come off it. You are bending language beyond breaking point". There is no selection involved. It is purely a case of the Minister getting a list from the JAAB of the people who it considers to be suitable for appointment. The understanding is that he or she brings that to Government. The Government then looks at those names and decides from among them who is suitable.

Curiously, even the JAAB system we have at the moment requires that the Government be told about the people who are found to be unsuitable so it can have a vague idea of what is going on and who is being left off the list. Unfortunately, the impression is being created that the PAS will be a neutral selection agency for the four people concerned. It is not. It is going to be, at best, a body to sieve out the people who are unsuitable.

When I come to Senator Ward's point, if we were establishing the JAAB or rejigging the JAAB process, I would have no problem with that, provided the language was slightly more honest and it was described as a vetting process, as the JAAB legislation makes it clear it is involved with. However, that is not the case. We are given the impression that this is a selection process. That is the very phrase used in the Bill. It refers to undertaking a selection process.

We are told it is to recommend to the Minister from those who participated in the process, that is, everybody who applied, those persons whom it is satisfied are suitable for appointment as lay members. The Minister of State said he hopes there will be a good deal of interest in the process. I do not know what kind of person would apply for this job. Maybe a legal academic, sociologist or whatever might apply. I agree with the Minister of State. It is to be hoped that if he puts an advertisement in newspapers and asks people to submit their names that a good number will apply. I have no reason to believe that the ten or 20 people who apply would be considered individually to be suitable for appointment to the JAAB.

If the Minister wants to make sure somebody has experience of business, finance or public service or somebody who wants corporate governance or knows something about the courts, who are those people? We said that neither Senator Ward nor I can have any act or part in it because we know something about what goes on down there. Will it be people from the Courts Service or insurance managers who have an interest in how the courts system operates? Is it to be governors of prisons? We have no idea what we are doing here.

If the Minister wants to choose the names of four out of the 12 or 20 people who come up for consideration, maybe he or she should be obliged to do A, B, C and D in order to provide balance. That is not there. The balancing process is not provided for in the weeding out of the unsuitable. The Minister is not under an obligation to say that any individual who is appointed is appointed because he or she is A, B, C or D. What kind of persons are interested in the protection of human rights and equality, other than academics, NGO types, Irish Council for Civil Liberties people or people like that? These are the kinds of people we think should be appointed, but no legal practitioner may be appointed. The one group of people who cannot be appointed is legal practitioners. No excuse has been offered as to why legal practitioners are excluded, except the threadbare suggestion that they want to keep the number of people on the commission to a manageable amount.

I cannot follow how anybody in his or her right mind could say that it is important that somebody who knows about the courts and operation of the justice system in the State, and in places outside the State, and the importance of protecting human rights and equality and who is eligible on either of those two grounds should be appointed on one condition, namely, that he or she is not a legal practitioner.

How crazy is that? It is pathetic. It is shameful really, but there you are; that is what this Government, with its huge majority, is going to try to railroad through this House.

I am glad that Senator Ward is participating and showing an independence of spirit. He made the point that the four names will come before the Houses. One thing we are absolutely certain about is that whatever Government is in office at the time, a party whip will be imposed on a majority in either House or both, if a majority supporting the Government does exist. There will be no questioning of the suitability of the people by anybody who has any capacity to prevent the appointment of the Minister's appointees.

This is all smoke and mirrors. It is an illusion that there is going to be scrutiny. There is not going to be scrutiny. Four people are going to be plonked on a list before this House one day and the people who approve their appointment are never going to know about the 16 who were not mentioned in the House by the Minister but who were considered by the PAS to be equally suitable. One cannot find out about them because it would be embarrassing to reveal the identity of people who the Government overlooked. It might compromise the whole system because people might be publicly humiliated.

The Minister of State has not established why it is appropriate to confine the discretion of the Government in the appointment to the position of Chief Justice in a manner that excludes at least five serving members of the Supreme Court. How that is an appropriate or constitutional thing to do while also insisting that the Minister for Justice should be entitled to appoint the lay members of the first commission without any scrutiny whatsoever by the Houses of the Oireachtas? The Bill also provides, deliberately, that if the Minister decides at the end of their three-year period that he or she wants to reappoint them, then those people need not have any scrutiny for a second term. No reason whatsoever has been advanced for that nonsense. It is sad, sad stuff, and it shows a fundamental confusion as to what is or is not needed at present.

What we need is the Government to exercise the powers that the Constitution gives it conscientiously. What we do not need is a self-selecting process whereby four judges and four politically appointed allies of the Government end up drawing up short lists which exclude five members of the Supreme Court from eligibility for consideration for the role of Chief Justice. Ultimately, that is what all of this is about. There are nine members of the Supreme Court, and the position of Chief Justice is to be filled. There will be a shortlist of only three and the Minister of State has come into this House and said that it will be illegal to appoint at least five of the nine members of the Supreme Court. Of course, it could be even fewer than that because there could be one or two members of the High Court or the Court of Appeal on the shortlist. It might be illegal to appoint seven or eight out of the nine members of the Supreme Court to the position of Chief Justice under this legislation.

Surely the Government has constitutional discretion to look at the Supreme Court, which has served this country well and is carrying out important functions, and decide that when it comes to the position of Chief Justice, it is the Government that will decide who is appointed to that role, not this hybrid committee of four political appointees and four judges. The Judiciary has, heretofore, never had any function of that kind and I deny it the right to have an input into this. As I said earlier, it is a serious departure from constitutional norms and probity for members of the courts to become involved in canvassing for individuals to be appointed as judges in the first place, or to be promoted in the second place. That lapse took place after I left office and apparently continued for some time. It was wrong. It was fundamentally wrong that somebody in the Minister's office should be told that judge A should be appointed to the Court of Appeal by another judge or that Mr. So-and-So or Ms So-and-So, who is a solicitor or barrister, should be appointed to the courts. Appeals were made to the Minister for Justice by members of the Judiciary for the first time in relation to who becomes a judge. It was simply wrong and a lamentable collapse in standards from the people involved.

I was never communicated with, either as Attorney General or as Minister for Justice, by any member of the Judiciary to urge upon me the appointment of any other person to be a judge or be appointed to any office in the Judiciary. It never happened because the Judiciary at the time knew it was none of its constitutional business to become so involved. However, the Judiciary convinced itself, sometime between 2007, when I left, and 2015, that it should have a role in all of this. It was utterly wrong and it did not, by the way, improve things in the slightest. It is arguable that those people that the Judiciary favoured were in no way better than people who the Government, on the advice of the Attorney General, would have appointed to the various positions in question. It was fundamentally wrong that some senior members of the Irish Judiciary, but by no means the majority, became involved in canvassing for the appointment of people to be their colleagues or to specific roles within the court system. It was fundamentally wrong. Their function was confined to their membership of the JAAB. In that capacity, they did what this section says should be done. They simply said that, in their opinion, somebody was suitable or unsuitable and left it to the Government to make its mind up. It is a really sad degradation of the separation of powers that members of the Judiciary ever imagined that it was part of their function to become self-selecting by making phone calls to the Department of Justice, the Attorney General and members of Government to see whether their particular preference as to who should be made a judge from the legal profession or who should be appointed to particular offices or courts would receive support. It was a lamentable departure and it should never have happened.

It does not please me to say these things. It does not please me to have to say that senior members of the Judiciary exceeded their function and became recruiting sergeants for other people to the Judiciary and would-be influencers as to who got promoted within the Judiciary. I am ashamed of that fact. I am also ashamed that people put up with it and entertained their representations. It never happened in my time or in Mr. Rory Brady’s time. I regard it as simply unacceptable that it should have started and that the same members of the Judiciary should then have urged on the Government that they should be given a statutory role in determining who should be judges in future.

It is simply wrong. It is nowhere to be found in the constitutional order of things or in the constitutional tradition of this country that the Judiciary should have such a role, and nowhere required by European law or by anything under the Council of Europe. It is nowhere required that, in a common law country such as ours, members of the Judiciary should slowly be converted into a self-selecting elite. This is a shameful act and I do not know where it came from. In fact, I do know where it came from; it came from the activism of the former Minister, Shane Ross, and this was then put forward as a compromise on his misconceived views. It should not happen.

In any event, if the Minister of State said to me, “I agree with you, and we are going to bring about a situation where any member of the Supreme Court should be capable of being made Chief Justice if the Government, having considered the matter, so decides”, or if he indicated the slightest concession on that front, I would be quite happy to withdraw these amendments. I would tell him to pack what would then be an advisory commission with whoever he likes because, in the end, the Government will make the decision untrammelled by the views of these people. However, if these individuals are to have the capacity to prevent somebody from being appointed to the Judiciary in the first place, or to any office within the Judiciary, simply by leaving them off a shortlist, then it becomes all the more important that the commission should not be populated by political appointees under a thin veneer that the whole process is one in which the PAS carries out a selection process. It does not.

Before I put the question, I welcome to the Visitors Gallery Deputy Paul McAuliffe and his guests, Councillor Briege Mac Oscar and her parents, Brendan and Anne. Thank you for coming to Seanad Éireann today. I hope you enjoyed the debate. To have a former Attorney General address this important issue is truly seeing the political process in action. I also welcome Senator Maria Byrne and her guests, Councillor Ita Reynolds Flynn, Dr. Mihai Bilauca and Mr. Rob Lowth. Thank you for being here this afternoon.

Under Standing Order 62(3)( b ) I request that the division be taken again other than by electronic means.

When is it proposed to sit again?

Tomorrow at 9.30 a.m.