Thursday, 14 December 1995
Seanad Éireann Debate
Mr. Daly: I want to get a general overview of what the situation is. In much of the legislation that we debate here it is very difficult to get an overview of what the end result of passing it is. Apart from whatever additional powers we are giving under this legislation, what other Acts are affected by it and are some of them to be repealed? I want to get some indication of what the situation will be at the end of the day.
Mr. Mulcahy: My apologies, a Chathaoirligh. This is a very obvious amendment. A similar section was inserted into the 1991 Courts Act in that judges of the District Court are now individually called a judge. Of course, the Irish for a judge is a bhreitheamh.
I listened to the Minister in the Dáil and she said it would be a matter for the rules committee of the superior courts or for judges who are involved in the administration of justice to decide what judges should be called. Why should it be in statute that a District Court judge is called “judge”, yet there is no appellation for judges in this Bill? The commonly used term for a judge of the Circuit  Court, the High Court or the Supreme Court is “my Lord”.
Mr. Mulcahy: It is an anachronistic and archaic term and is a relic of a bygone era, of former colonial days. This is a young, modern, democratic and pluralist republic. We believe in the equality of all people. It behoves us in all our statues to use forms of address which show equality of treatment. When one must address a judge of the superior courts as “my Lord”, it is not in keeping with that spirit.
I am not trying to do something new. In 1991 the Oireachtas decided in its wisdom — perhaps the Minister will correct me if I am wrong — that judges of the District Court would be called “judge”, not Justice or Mr. Justice. Some of the amendments to this Bill try to bring equality of treatment to the various courts in terms of their status. Later amendments will require that District Court judges should not be required to retire at 65 years, but at 70 years. Why should we address a District Court judge in a different form of appellation to a Circuit Court, High Court or Supreme Court judge? Will we show less respect to District Court judge?
For the first time solicitors will be able to become judges of the District Court and Circuit Court and, after four years' experience there, of the High Court and the Supreme Court. We are trying to bring equality to all the courts. I hope that over time that equality would pertain to courthouses. We all know about the disgraceful condition of some of the District Courts. On many occasions judges have refused to sit in the District Courts because they believed it was contrary to respect for the law that people should be required to go to such premises.
There is a strong and unarguable case to accept this amendment. The precedent already exists that judges of any of the courts should be called “judge” or “a bhreitheamh”. This point was made by the Fianna Fáil Justice spokesman,  Deputy O'Donoghue, in the Dáil. I do not know whether the Minister is aware that in the 1991 Act District Court judges have been called “judge”. I ask my colleagues and the Minister, in the positive spirit she outlined yesterday, to make this radical change to bring our courts into a young, modern, pluralist and egalitarian Ireland.
Mr. Currie: I listened with sympathy to some of the points made by the Senator, particularly in relation to the antiquated and colonial term “my Lord”. If we were in the House of Lords, I would refer to the Senator as the “Noble Lord”. Thankfully, we are not there. The Senator said he listened to the Minister, so he will be aware of the likely reply which I will make. Having listened to the points made, he will hardly be surprised to find I am not convinced that this is the appropriate way to deal with this matter in that it should not be in primary legislation.
It is a matter of practice and procedure which comes within the responsibility of the rules committees of the various courts. These committees are made up of judges and others — for example, the superior courts rules committee includes the Chief Justice, the President of the High Court, the Master of the High Court, two practising barristers and two practising solicitors. The rules made by the different committees provide for the modes of address of judges in the superior courts, the Circuit Court and the District Court. I am satisfied that if judges wish to change the way they are addressed they could bring suitable proposals to the appropriate rules committee.
I am advised that the change in the 1991 Act to which Senator Mulcahy referred was that “Justice” was changed to “judge”. It was not an attempt to tell lawyers how to address a District Judge. I do not believe it was as fundamental a change as the Senator suggested. It is not appropriate that this House should involve itself in how judges should be addressed in court. I understand the  Senator has a professional interest in this matter but I am not sure it is one which should concern the House. I am confident that if the Judiciary wishes to be addressed in a particular way, it would not regard itself as being bound by any custom or practice which operated in the past or which might have been common prior to the foundation of the State. This is a matter at which the working group on the courts commission which we have established might look. If the Senator is anxious to take the matter further, I suggest he raise it with the working group, which would be a more appropriate forum than the House.
Mr. Daly: If this amendment was accepted, we would send a clear message that we want to modernise things in the courts as we have done in other areas. Before the foundation of the State, I would probably have been referring to Senator Mulcahy as my right honourable colleague from the southwest. That kind of rubbish is gone and it is time we eliminated the intimidation that the jargon, wigs and gowns have led to in the courts over the years. We should send a clear and strong signal that we are modernising the practice and procedure in the courts as we would anywhere else. I support the amendment and the Minister of State would be wise to accept it. It would send a clear message that this is a reforming Government.
Mrs. McGennis: I also support Senator Mulcahy's amendment. I am not convinced that we should not take the initiative because it is not included in the Bill or is a matter regulated by the Judiciary itself. There is a slight suggestion in the Minister's reply that we will allow judges to decide this matter for themselves because we do not want to ruffle their feathers or their wigs. The removal of the ban on wigs applies only to barristers while the Judiciary is to retain that particular item of apparel. I have a preference for the Irish version, “breitheamh”. I said yesterday  in the context of discussions about wigs and gowns, that this is snobbery. The use of the phrase “my lord” must be the highest form of snobbery if it is not directed to the Lord Almighty. I fully support this amendment and I do not believe the Government should have any reservations about it.
Mr. Mulcahy: I did not find the Minister's reply satisfactory. He agreed that there was a precedent for the Oireachtas dictating — it is a bad but accurate word — to one section of the Judiciary how they are to be addressed by members of the public. The Minister did not deny that precedent exists. What is sauce for the goose is sauce for the gander. If it is good enough for a District Court judge to be called judge and to be told by the Oireachtas that he will be called judge, why can the same not be done for other judges? There is no logical reason for it. I agree with my colleagues, Senator Daly and Senator McGennis. We want to try and rid the courts of all this anachronistic behaviour.
I am disappointed that the Minister of State will not accept this moderate amendment. We are not looking for any drastic change in the Bill. It is a common sense move for which there is statutory precedent. I am sorry that the Minister has not seen fit, in line with his Christmas generosity, to take on this first amendment, which I thought would signal the acceptance of many more amendments this morning. Under those  circumstances this matter will have to be pressed because it will mark a line of division between those in this Oireachtas who are prepared to intervene to make the running of the courts more modern and egalitarian. I see Senator Gallagher smiling.
Mr. Currie: I enjoy debate as much as anyone else and there is no doubt that this debate is already far ranging. I did not expect wigs to be mentioned under this amendment, but bewigged, bothered and bewildered I am not.
Mr. Currie: I am surprised at the point Senator Daly was making. After 70 years of a democracy and a republic, this should not be the touchstone against which we judge how democratic and republican we are. I would have thought that our democracy and republic was sufficiently self confident not to be bothered by trivialities of this nature. In the context in which Senator Daly was speaking, this really is a triviality. The Committee divided: Tá, 16; Níl, 21.
|Belton, Louis J.
Cregan, Denis (Dino).
Enright, Thomas W.
Farrelly, John V.
Ross, Shane P.N.
Tellers: Tá, Senators Fitzgerald and Ormonde; Níl, Senators Cosgrave and Burke.
Amendment declared lost.
Sections 7 to 12, inclusive, agreed to.
Mr. Mulcahy: I move amendment No. 2:
In page 8, subsection (1), line 34, to delete “informing” and substitute “advising”.
This amendment relates the provision, in Part IV of the Bill, for a Judicial Appointments Advisory Board. I hope I am not misinforming the Minister of State or this House by stating that during the debate on this matter in the Lower House the Minister for Justice strongly stressed the notion that the board will be an advisory one. It is, therefore, open to the Minister for Justice and the Government to ignore the recommendations of the Judicial Appointments Advisory Board, having first given them due consideration.
Section 13 (1) of the Bill states that the board will be established:
For the purposes of identifying persons and informing the Government of the suitability of those persons for appointment....
The amendment proposes to substitute “advising” for “informing” in this subsection. When someone states the they are “informing” they are speaking in relation to certain knowledge. If they state that they are “advising” this represents an indication of expert or considerable knowledge or opinion. A difference exists between the two. It should not be open to the advisory board to make absolute stipulations. From the use of the word “informing”, I am of the opinion that the board will be able to do so. It would be more in keeping with the spirit of the board being of an advisory nature, and would not remove any of the weight of the subsection, to substitute “advising” for “informing”. The use of the word “informing” is too strong and confers a  status on the advisory board which the Minister for Justice did not intend.
Mr. Currie: The purpose of section 13 is to establish a Judicial Appointments Advisory Board to identify and inform the Government of the suitability of persons for appointment to judicial office. The amendment tabled by Senator Mulcahy seeks to substitute the word “advising” for the word “informing”. This is essentially a drafting matter. I am satisfied that the wording of section 13 (1) makes it clear that an advisory function is involved. I do not believe that anyone could possibly be in any doubt in this regard. Section 13 (1) states that the function of the board is:
For the purposes of identifying persons and informing the Government of the suitability of those persons for appointment to judicial office, there shall be established a body to be known as the Judicial Appointments Advisory Board (in this part referred to as “the Board”).
A person would have to be very dim to not understand the purpose of that section. Another interpretation of it would not be permissible. Senator Mulcahy, wearing his lawyer's hat, may consider that no other interpretation is permissible because the Government is constitutionally required to decide upon on judicial appointments. I believe that the Senator will withdraw the amendment following due consideration.
An Cathaoirleach: Is the amendment being pressed?
Mr. Mulcahy: Yes, but I will not put the matter to a vote.
Question put and declared lost.
Mr. Mulcahy: I move amendment No. 3:
 In page 9, line 3, to delete subparagraph (v) and substitute the following:
“(v) the President, for the time being, of the Law Reform Commission.”.
I am not sure that my contribution with regard to this amendment will be as brief as those in relation to the first two amendments because we are approaching the substance of the Bill.
Section 13 (5) seeks to appoint the Attorney General as a member of the Judicial Appointments Advisory Board. The Attorney General is the legal adviser to the Government. It has been accepted in recent years that the Attorney General also has a role to play as the public's watchdog in relation to law. Primarily, however, he or she is the legal adviser to the Government. The position of Attorney General is a constitutional one. The person who fills that office is appointed by Government. The Constitution does not stipulate that he or she must possess any legal qualification. However, it is usual that they do. The Attorney General is normally a barrister, but in my opinion no barrier exists to prevent a solicitor holding the office. The fact remains, however, that the Attorney General is the legal adviser to the Government.
The Minister is aware that a threefold division of powers exists in this country between the Executive, the Legislature and the Judiciary. Certain wags might express the opinion that a Fourth Estate exists which is more powerful than the three to which I have referred. However, those three represent the basic constitutional arms of the State. Not only are these three distinct, but they are intended to be independent in their function. In that context I cannot understand how the chief legal adviser to the Government can also, with any constitutional credibility, possess a role in the appointment of judges. The Minister of State cannot tell me that the Judicial Appointments Advisory Board will not have a role in appointing judges.
Mr. Neville: The Minister had better not do so.
Mr. Mulcahy: This body will be involved centrally in the selection of judges for consideration by the Government. According to the Bill, they will advertise the positions and interview and consult people.
Mr. Neville: And they will advise.
Mr. Mulcahy: They will do all these things. They will draw up shortlists, for want of a better phrase, and will submit them to the Government. I make no comment on the constitutionality of Part IV of this Bill in the first, second and third place. I will not repeat my comments or those of Senator O'Kennedy yesterday——
Mr. Currie: We must be grateful for that.
Mr. Mulcahy: ——and they were fine comments to the effect that if it is not broken, do not fix it — nor will I repeat the fact that Ministers have failed to provide one whit or shred of rationale as to why there should be a Judicial Appointments Advisory Board in the first place. They have not said there was one bad judicial appointment and they have not said there ever was a problem.
The House may feel I am digressing slightly and trying to re-enter the debate on Second Stage, which of course I am not, but I will not be taken from this point quickly because I regard it as a point of the gravest concern that the Executive arm of Government would seek to impose its will on the judicial arm of Government. In this regard the Government's proposals are wrong, unlawful and, I am almost sure, unconstitutional. What is the more regrettable is that this subsection shows up the reality of the farce of this part of the Bill in that the Government has now sought to weight and have effective control of the Judicial Appointments Advisory Board by having three representatives and the Attorney General appointed.  The Government will have a minimum of 40 per cent of the board; so they do not just want to control the Government, they want to control the body which will make the shortlist of judges.
A further question arises from this subsection; it is a point of my later amendment and it is a most serious one. I can be corrected by the transcripts if I am wrong, but I read the proofs of Minister Owen's contribution in Dáil Éireann and she said that the Attorney General will inform the Government of what went on at the Judicial Appointments Advisory Board. She said he would be the messenger boy. She did not use the words “messenger boy”——
Ms Gallagher: She hardly did.
Mr. Mulcahy: ——but she said that he will bring the news. I have an amendment down on that too.
Mr. Neville: Are we discussing one or two amendments here?
Mr. Mulcahy: Any attempt which the other side of the House might make to distract me from the importance of this point——
Mr. Neville: Never. We would not dream of it.
Mr. Mulcahy: ——will not be successful. Why does the Government insist the Attorney General be a member of the Judicial Appointments Advisory Board? Is there an implication that there is not enough expertise on the board with the Chief Justice, the President of the High Court, the President of the Circuit Court and the other persons to suitably advise the Government on the appointment of judges? Will the Attorney General bring some extra special expertise to this board, such that will not be there available? Does the Minister agree, even if everything I said were not the case and my arguments are wrong, this still has the appearance of connection between the Executive and the judicial functions? Does the Minister  agree that at every stage and in every act of the Oireachtas Governments must bend over backwards when framing legislation to ensure there is no ambiguity on this point and that there never is a connection? It is all very well. These things can happen with the slip of a pen and they can go through in a debate which has not been as comprehensive as it should be but we are, and I say this with all seriousness, talking about the most fundamental principles of our democratic Constitution. I am not saying the Government would in any way attempt to subvert those principles, let me be clear about that, but I am trying to warn the Government. In reality or appearance, there will be a crossover between these two arms of Government.
In that regard the proposed change recommended by the Fianna Fáil Party is remarkably sensible and easy. It would bring — I see the Minister nodding and I am delighted — to the Judicial Appointments Advisory Board——
Mr. Currie: I would be surprised if the Senator said anything different.
Mr. Mulcahy: ——a person of undoubted legal expertise, familiarity, etc: the President for the time being of the Law Reform Commission. As I understand it, past presidents of the Law Reform Commission consisted normally of judges of the High Court, but perhaps also of the Supreme Court. These people are suited eminently to being on the Judicial Appointments Advisory Board. If I am not mistaken, former chairmen of the Law Reform Commission include Judge Brian Walsh and Judge Anthony Hederman. Is the Minister suggesting for a moment that people of this calibre are not suited to the Judicial Appointments Advisory Board?
An Leas-Chathaoirleach: The Senator should not personalise the debate.
Mr. Mulcahy: I am sorry. I was only trying to give an example, so let me put it in general terms. To my knowledge, in all past cases the president of the Law Reform Commission has been a person of eminent status and standing. There would be no fear, if this amendment was accepted, of any crossover between the Executive and judicial functions. I strongly urge the Minister to accept this amendment and, by doing so, get rid of the fear that this Bill might be open to constitutional challenge.
On the Attorney General's membership of the advisory board, I would also like clarified whether it will be the role of the Attorney General to communicate its proceedings to the Government? If so, to what extent will he be bound by the later confidentiality provisions contained in the Bill? Subject to that and to my right of reply, which may be of equal length depending on the Minister's answer, I strongly urge the Minister to take Government politics out of this board and to put in an independent person.
Any Attorney General — this is not a personal attack — is not an independent person. The Attorney General is the legal adviser to the Government. If I am a lawyer for a company, I would not be asked by a third party to adjudicate on an issue affecting that company. Nor can the Attorney General, who is the legal adviser to the Government, be asked to adjudicate independently on any issue affecting that Government. He is on the Government side; he is its legal adviser. Although certain parties sought to undermine the integrity of the relationship between the Attorney General and the Government——
Ms Gallagher: That is not right. It is completely erroneous.
An Leas-Chathaoirleach: Will the Senator stick to the scope of his amendment?
Mr. Neville: The Senator has still not got over what happened 12 months ago.
An Leas-Chathaoirleach: This has nothing to do with the amendment. The Senator must address the amendment in the context of the Bill before the House.
Mr. Mulcahy: While I respect your point, Sir, I want to argue why I am making a theoretical point——
Ms Gallagher: The Senator would say that. He is on the other side of the House.
Mr. Mulcahy: ——about the Attorney General. I am entitled, when making that theoretical point, to illustrate it by examples that support it.
An Leas-Chathaoirleach: Can the Senator confine himself to the contents of the amendment as tabled?
Mr. Mulcahy: I have given strong reasons why the Attorney General should be removed from this board and the president for the time being of the Law Reform Commission should be put in his place. Of course the president of the Law Reform Commission is appointed by the Government. If this is the fear, it does not exist. Subject to my right of reply, I will press this amendment with all the strength I can muster. I would especially like a reply from the Minister on the statement from the Minister for Justice, Deputy Owen, who said that it was the Attorney General who would communicate the proceedings of this board to the Government.
Mrs. McGennis: I will not be making as lengthy a contribution as Senator Mulcahy, who has a more in-depth knowledge of the business of law than I. In what I described yesterday as the Baldonnel Bill No. 1, I understand it was the president of the Law Reform Commission and not the Attorney General who was intended to be a member of this advisory board. If that is the case, why has the Government decided that the Attorney General is more appropriate to be a member? While I do not  question his ability or impartiality, the Office of the Attorney General, as we discovered 12 months ago, was inundated with work with which it could not cope, although substantial changes have been made to that Office. It is also inappropriate that the Attorney General could be considered to be a member — he is certainly not a messenger boy — of an interview board for this purpose.
Senator Manning stated in his contribution yesterday that this was important, radical and reforming legislation. If this is the case, it appears this amendment is appropriate. The president of the Law Reform Commission seems to be the person best suited to being a part of what the Government side has called a most important reforming legislation.
Mr. Enright: Has the Senator any word on Baldonnel No. 2?
Mrs. McGennis: This is it.
Mr. Neville: Senator Mulcahy spoke for a considerable length of time. He essentially said the adviser to the Government should not advise it and the adviser on legal issues, the Attorney General, should not be involved in any advisory body. I am not a lawyer. I cannot talk for an hour on a small amendment; it may be an important amendment in Senator Mulcahy's eyes. The Senator is saying that the Government adviser should not advise and communicate information to it from an advisory committee but that another adviser appointed by the Government, the president of the Law Reform Commission, which is an advisory body, should do so. It is one of the key advisory bodies to which we have referred in my involvement in the justice area. Therefore, I see a contradiction here. I do not see any difficulty with the legal adviser to the Government being involved in a body advising the Government on judicial appointments and with the Attorney General, as adviser, communicating that information to the Government.
Ms Gallagher: While I have reservations regarding the role of the Attorney General on the board, the argument that there is a breach of the separation of powers is unfounded. Article 35 of the Constitution makes it an Executive power. That has been delegated to some extent by the Government in the form of the advisory board but there is no breach of the separation of powers. Therefore, there is no constitutional argument here at all. The president of the Law Reform Commission is also a Government appointee and on that basis I see nothing to be gained by him replacing the Attorney General.
As Senator Mulcahy said, the president of the Law Reform Commission is more than likely a former judge and on that basis he is being asked to select among colleagues. That suggestion is not workable or good.
Mrs. McGennis: The board could not possibly work if it were all composed of judges.
Mr. Enright: I will refer to the section as a whole later. In regard to the 1994 Bill, which Senator McGennis referred to as Baldonnel Bill No. 1——
An Leas-Chathaoirleach: We are considering amendment No. 3.
Mr. Enright: With regard to appointments provided for in section 23 of the 1994 Bill, and in this Bill, few of those specified to be involved in the appointments process are in touch with barristers in a serving capacity. However, the Attorney General is a practising barrister, he attends his office and advises the Government, but he also conducts cases on behalf of the State. It is now a full time position. It is important that somebody involved in these procedures sees barristers at work and can assess their suitability for appointment.
Those specified under the provisions of the section include the Chief Justice, somebody in whom we have the utmost faith, the President of the Circuit Court, the President of the District Court and,  now, the Attorney General. Somebody is required who is involved, who has occasion to brief barristers, sees how they perform, whether they are efficient in the discharge of their duties and are conscientious in looking after their briefs on behalf of the State, and, having seen them practise, will then be in a position to know whether that person has the wisdom, understanding and ability to be appointed a judge. It is, therefore, a sensible proposal to include the Attorney General here, because he will understand, from a practical viewpoint, the qualities that are available and the people that are available with talent for appointment.
The Attorney General has been long recognised as the leader of the Bar. Government's choose Attorneys General carefully and those normally appointed have come through the legal system and shown their ability. It is on ability and their legal experience that Governments appoint them. It would be wrong not to have somebody like the Attorney General on the board.
Senator Mulcahy suggested that there will be many judges on the board. It is good that somebody will be included who is not a judge; therefore it is right to appoint the Attorney General to this position. I support the proposal.
Mr. Currie: Senator Mulcahy admitted he was digressing. He also told us he intended to make a long speech. which he did, and he threatened us with making another long speech if he was dissatisfied with what I had to say.
Mr. Neville: A frightening prospect.
Mr. Currie: As I listened to the noble and learned Senator, I could not help recalling some lines of poetry I learned many years ago, from “The Hound of Heaven”, which includes lines such as “I followed him down the nights and down the days”, and “The labyrinthine ways of my own mind”.
Mr. Enright: We have a Séamus Heaney in the making.
Mr. Currie: The Senator made a long speech but I will not encourage him by making a long speech in reply. Somebody told me that Fianna Fáil is having its Christmas party this evening. I hope it is not the intention to leave here and go to it directly. This would be unsatisfactory from my point of view.
Mrs. McGennis: It may well be the case; much rests on the Minister's shoulders.
An Leas-Chathaoirleach: We are all digressing.
Mr. Currie: My constituency colleague, Senator McGennis, told us that attendance on this advisory committee would put an additional load of responsibility, time and work on the shoulders of the Attorney General. This is not the case. There will be one or two vacancies a year and the number of meetings would be very few.
I allow myself a slight smile when I hear members of Fianna Fáil preaching to us about the qualities and the role of the Attorney General. Events of a year ago would have indicated to them that they are not very strong on this area.
Mrs. McGennis: On the contrary, history has proved us right.
Mr. Currie: The experience they learned a year ago may make them a little more careful about preaching to the rest of us about the role of the Attorney General.
Mrs. McGennis: That is unwarranted. I did not preach; I expressed some views on the matter.
Mr. Currie: I was not referring to the Senator. She made a short, relevant speech. The 1994 Bill provided that all the members of the board would be either judges or lawyers. In reviewing the 1994 Bill, the Minister concluded that it was important that the board should be broadly based and should not be exclusively made up of judges and  members of the legal profession. This was a fundamental flaw in the 1994 Bill. The president of the Law Reform Commission is a judge, and it was felt that the board was sufficiently representative of the Judiciary. Senator Mulcahy quoted the Minister out of context. The Minister said, “I have decided that I would like to have the Attorney General on the board for precisely the reason Deputy O'Donoghue has highlighted”. She was agreeing with the Deputy. The Minister went on: “The Attorney General will bring the information back to the Cabinet when it is considering the recommendations of the advisory board”. The Senator should not take this out of context because it is clear, when one looks at section 16, that it is the board who will make the recommendation to the Minister.
It is very appropriate that the Attorney General should be a member of the board. As Senator Enright has pointed out, he is long recognised as the leader of the Bar, and he or she will have experience as a practitioner in dealing with barristers and solicitors. Who is better qualified to make an assessment of barristers than one who has such an intimate knowledge of them? In addition, in his role in defending the Constitution, the Attorney General has regular contact with and experience of both branches of the profession. Indeed, the Attorney General is uniquely suited to be a member of the board whose function it is to advise on appointments to judicial office. This is a section of the Bill where we have gained considerably from the experience of the 1994 Bill, and it is a section I strongly support.
Mr. Mulcahy: In case anybody makes a joke about the length of my contribution, I hope everything I said was relevant. I also hope there was proportionality between the length of my contribution and the importance of this section. It might have an important role to play for many years to come so I make no apology for trying to make every relevant point.
 The first argument I wish to debunk is that made by Senator Gallagher. She said — and I paraphrase her comments — that because the president of the Law Reform Commission has usually been a judge he would not be a suitable person to sit on the Judicial Appointments Advisory Board.
Ms Gallagher: I did not say he would not be suitable. I said that I did not think there was anything to be gained from it.
An Leas-Chathaoirleach: Senator Mulcahy without interruption. Senator Gallagher will have a chance to speak later.
Mr. Mulcahy: I welcome the interruption because I wanted to get what the Senator had said correct. I am sorry if I have misquoted her. The Senator appeared to suggest that it would not be a good idea to have the president of the Law Reform Commission on that body because he or she would be a judge.
Mr. Neville: She did not.
Mr. Mulcahy: We can examine the Official Report later. The Chief Justice and the President of the High Court are judges as well.
Mr. Neville: That is the point.
Mr. Mulcahy: What is wrong with another judge?
Ms Gallagher: That is the point. Have we not got enough of them on the board?
Mr. Mulcahy: I am not sure that is how the Senator expressed her point.
Mr. Neville: That is how I heard it.
Mrs. McGennis: It was not.
Mr. Mulcahy: We will examine the Official Report to see if the Senator's version is correct.
Ms Gallagher: I can explain it afterwards, in private if the Senator wishes.
An Leas-Chathaoirleach: The Senator should address the amendment and points relevant to it.
Mr. Mulcahy: That was a delightful invitation and I will take it up nearer to Christmas if I may. The Minister in his contribution sought to denigrate the honour and esteem the Fianna Fáil Party might have for Attorneys General. He cited recent events in making that point.
Mr. Currie: I did not say that.
Mr. Mulcahy: It appears that Members on the other side of the House either have short memories or are rewriting the script.
Ms Gallagher: Or else the Senator does.
Mr. Mulcahy: The essence of what the Minister said is that Fianna Fáil did not have high regard for the independent role of Attorneys General.
Mr. Currie: It was your judgement I was questioning.
Mr. Mulcahy: It is because Fianna Fáil values the independence of Attorneys General as legal advisers to the Government that we are opposing this section. The people who organised for various Attorneys General to be paraded before a ridiculous series of meetings of the Select Committee on Legislation and Security, which arrived at absolutely no conclusions, have a lot to answer for.
An Leas-Chathaoirleach: Those events have nothing to do with the amendment. They are history at this stage.
Mr. Mulcahy: The Minister brought them up in his contribution and I have a right to reply. The Minister also quoted correctly from the contribution of the Minister for Justice, Deputy Owen, in the Dáil. She said, and the Minister can correct me if I am wrong: “The Attorney General will be the person who will bring the information back to the Cabinet when they are considering the recommendations of the advisory board”. That is not in the Bill. In this statement to the Dáil the Minister for Justice has let the cat out of the bag. This Government envisages the Attorney General acting as its eyes and ears on the board. The Government wants it both ways. It wants the Attorney General on the board deciding on the shortlist and it wants him in the Government advising the Government on making the final decisions.
Either the Minister for Justice corrects this statement or a serious situation will emerge. The Bill does not provide for the Attorney General communicating such information to the Government. It is a gross impertinence — and I choose those words carefully — to suggest that anybody other than the chairperson of the board will communicate the findings and the recommendations of that board to the Government. If that is the case there will be two people communicating to the Government — the Attorney General by the back door and the chairperson of the advisory board, the Chief Justice, through the official channel.
It is important that the Minister's statement be amended. In fact, her statement that the Attorney General would communicate the findings of the board is contrary to the confidentiality provisions of the Bill. I hope the Leas-Chathaoirleach does not think I am straying, but the two matters are connected. The Minister has put it on record that the Attorney General will relay these messages; yet in another section of the Bill there is a confidentiality clause. This issue must be clarified. Perhaps we would take the Minister's word if she were to come to the  House and clarify the position. Did she really mean that the Attorney General will communicate back to the Government, or will she withdraw that comment? Will she accept that the Chief Justice, as chairperson of the board, through his or her secretary or office will communicate with the Government? The Minister's statement about the Attorney General has the effect of undermining the position of the chairperson of the board. It is a matter of gravity with regard to whether or not the Attorney General should be on the board. I did not find the Minister's arguments convincing and he did not find mine convincing. That is life.
Mr. Currie: We will call it a draw — just withdraw the amendment.
Mr. Mulcahy: I am putting on record my objection and the objection of my party to the Attorney General being a member of this board. It is wrong and looks wrong. It sends the wrong signals. It is probably unlawful and is almost certainly unconstitutional. I ask the Minister, first, to clarify the Minister for Justice's statement regarding communications by the Attorney General and, second, for the sake of maintaining the division of powers enshrined in the Constitution, to accept what everyone would agree is an eminently sensible suggestion. Nobody could rationally disagree with the chairman for the time being of the Law Reform Commission taking the Attorney General's place.
Mrs. McGennis: There may be a serious problem with regard to the appointment of the Attorney General to the board but there is a greater problem relating to its composition. There are later amendments dealing with this.
An Leas-Chathaoirleach: The Senator may address those points when we deal with the section.
Mrs. McGennis: My points relate to this amendment, because if it is carried it will deal with problems which may  arise later. Senator Mulcahy made the case for not having the Attorney General as a member of the board. This case is also made in section 18. Subsection (1) of that section states that “The Board may recommend the Attorney General for appointment to judicial office” and subsection (2) states:
Where the Attorney General wishes to be considered for appointment to judicial office, he or she shall withdraw from any deliberations of the Board concerning his or her suitability for judicial office.
It seems to me to be a waste of time establishing a board, a member of which may have to absent himself or herself in the event of being considered for appointment as a judge.
This section makes the case for the Attorney General not being a member of the board. It specifically mentions the Attorney General but it does not mention the barrister and the solicitor who are to be members and the three persons to be nominated by the Minister. There is potential for a conflict of interest here. Such a conflict arose after the appointment of the present Attorney General, which he immediately disclosed. The Bill will place him in an invidious position in that he may have to absent himself from the board if it is considering him for appointment as a judge. I cannot talk about the legality and the constitutionality of this because I am the only Senator present who is not a lawyer or a solicitor.
Mr. Enright: Senator Mulcahy and Senator O'Kennedy both said that “If it ain't broke don't fix it”. In the past the Attorney General made recommendations to the Government on judicial appointments because of his experience in the legal field. People on all sides of the House will agree that judicial appointments have been eminently satisfactory and our Judiciary is the  envy of democracies throughout the world. Our democratic system, and in particular our Judiciary, are of a high standard. The honesty and integrity of those appointed have never been called into question. In the main, appointments have been made by Governments on the recommendations of the Attorney General. Because he is a practising barrister, his views should be expressed at meetings of the board and we should take account of them. His words should be listened to with attention and they will be of considerable benefit to the board.
All of the members of the board proposed in the original Bill would have been based in Dublin. Membership of the board proposed in this Bill will allow for membership of persons other than solicitors or barristers.
Mr. Currie: I agree with Senator Enright. As a member of the board, the Attorney General will be listened to with great attention and interest. His experience fits him for his role on the board. However, he is only one member of the board and it is the board which will make recommendations to the Government. Senator Mulcahy worked himself into a lather in saying the Bill is unconstitutional.
Mrs. McGennis: He is a noble Senator.
Mr. Currie: I do not question that. He went over the top on this issue. He quoted from remarks made by the Minister, Deputy Owen, in the Dáil. He seemed to pay more attention to them than his Fianna Fáil colleagues in that House, who did not pass any comment on them and took them in the proper context. I suggest to Senator Mulcahy that he should do the same.
Question proposed: “That the words proposed to be deleted stand.”
 The Committee divided: Tá, 21; Níl, 18.
|Belton, Louis J.
Cregan, Denis (Dino).
Enright, Thomas W.
Farrelly, John V.
Ross, Shane P.N.
Tellers: Tá, Senators Cosgrave and Burke; Níl, Senators Fitzgerald and Ormonde.
Question declared carried.
Amendment declared lost.
An Leas-Chathaoirleach: Amendments Nos. 4 and 5 are related and may be discussed together.
Mr. Mulcahy: I move amendment No. 4:
In page 9, paragraph (b) (i), line 4, to delete “a practising barrister who shall be nominated by”.
The Minister may breathe a sigh of relief as I do not intend to spend as much time on these amendments as the previous amendment. However, this is not to say I can be rushed on sections of this importance.
The amendments relate to the composition of the Judicial Appointments Advisory Board. It is proposed that the chairman for the time being of the Council of the Bar of Ireland and the president for the time being of the Law Society of Ireland will each have the power to nominate an individual to the board. However, the only specification is that the individuals have a legal qualification and are either practising barristers or solicitors. My problem is that the provision is undemocratic and there is no sense of control regarding the appointments.
The effect of my amendments is that the president for the time being of the Law Society and the chairman for the time being of the Bar Council would sit on the board. The Minister may accept, by way of judicial notice or common knowledge, that the chairman of the Bar Council is invariably a practising barrister. It is also the case that the president of the Law Society is invariably a practising solicitor. They were democratically elected by their peers and colleagues as people of ability and integrity.
The Minister would have no difficulty with the presence of these people on the board and I do not suggest otherwise. However, I am sure he understands my point. There is no governmental control over the nominee of either person and it  is possible the person appointed by the chairman of the Bar Council or president of the Law Society would not be of calibre and may be unsuitable. The position is unclear because there is no sense of control. It is unlikely that will be the case but why not go for the best? Why not opt for the person in the Law Society or Bar Council who was elected by their peers? They have a democratic mandate and there is no stronger weight in their favour. It makes sense and I ask the Minister to accept the amendment.
Mrs. McGennis: I strongly support the amendment for the reasons outlined by Senator Mulcahy. The chairman of the Bar Council and the president of Law Society were elected by their peers and are the obvious people to appoint to the advisory board. Will it not be difficult for the chairman of the Bar Council or the president of the Law Society to identify a solicitor and a barrister who does not want to be a judge? There will be practical problems in identifying people who want to sit on the board but who do not want to be considered for judicial appointment.
Mr. Neville: It is normal for chairmen or chief executives to nominate people to various boards, such as the advisory board. I was nominated in that manner to the Employment Appeals Tribunal by the head of IBEC and appointed by the Minister. There is nothing unusual about this approach. It is long standing practice. I have every confidence that the chairman of the Bar Council and the president of the Law Society will choose people of proper calibre. They would not be at that level if they did not have the ability and expertise to select suitable people for posts.
Mr. Currie: I listened to the Senator explain the reasons behind his amendments. However, on balance, it is better the two nominating bodies have as wide a discretion as possible. It may prove to be the case that the chairman for the time being of the Bar Council or the  president for the time being of the Law Society would be unable to carry out their functions under the Bill because of other duties. Paragraph (2) states the persons nominated by the Bar Council and the Law Society shall hold office for three years. This is an important provision to ensure there is some continuity on the advisory board.
As I understand the position, the president of the Law Society holds office for only one year; this also applies to the chairman of the Bar Council. The effect, therefore, of the Senator's amendment would be that the representatives of the Bar Council and the Law Society would have to change every time a new chairman of the Bar Council or president of the Law Society was appointed.
A further problem could arise under the provisions of section 18 which prohibits the board from recommending for appointment to judicial office any of its own members. For example, if the chairman for the time being of the Bar Council wished to be considered for appointment as a judge, he or she could not be considered by the board for as long as he or she was chairman of the Bar Council. On balance, therefore, it is best to leave some flexibility in this area. We can safely leave it to the chairman of the Bar Council and the president of the Law Society to nominate persons as they see fit. Nothing in the section would, for example, prevent the president for the time being of the Law Society nominating himself or herself. This would also apply to the chairman for the time being of the Bar Council. I hope, following due cogitation, that the amendments will be withdrawn.
Mrs. McGennis: It is always a disadvantage when we do not have copies of written replies on Committee Stage. Did the Minister say the chairman of the Bar Council and the president of the Law Society may not be able to fulfil the tasks because of their workload?
Mr. Currie: I said “because of other duties”.
Mrs. McGennis: In a previous reply to a question I raised about the Attorney General the Minister said he accepted my point, but he was happy the Attorney General's workload would not increase substantially as there would be two meetings or vacancies a year. Is the Minister saying the workload of the chairman of the Bar Council and the president of the Law Society would exceed that of the Attorney General? Without dealing in detail with the purpose of the section, it is clear the advisory board will not be capable of functioning. It will not work. As I said earlier, the Attorney General is on the board and may absent himself if he wishes to be promoted. However, the Minister said the chairman of the Bar Council and the president of the Law Society may wish to be considered. The situation does not add up.
The Minister is a man whom I totally respect because of his political involvement both inside and outside this Republic. He knows in his heart of hearts that this is nonsense. Senator Mulcahy's worry is that this advisory board might be taking away some of the powers of the particular arm of Government. I am convinced that this Judicial Appointments Advisory Board is a sham. It will do nothing. We will come to it when we deal with its composition. Of the members of this board, one, as Senator Mulcahy said, will be the law officer to the Government and the other three will be appointed by the Minister. It will be a sham and it will not work. The Minister's reply in relation to these amendments utterly contradicts his reply on the exact same question about the Attorney General. So the Minister knows that it will not work.
Mr. Currie: Whatever the board is, it is certainly not a sham. We can take that for granted. I would take the point Senator McGennis was making in relation to my previous remarks about the Attorney General if we were talking only in terms of the workload. However, there may be other reasons personal to the two people concerned why they  would not want to be on this board. We are effectively saying to them you must be on this advisory board. The only point I am making is that they may not wish to be.
If we are seriously concerned about improving the Bill rather than going through the motions, you should seriously consider the point I made about the president of the Law Society and the chairman of the Bar Council holding office for one year. That is an important point and I hope on that basis that we will not put the burden on your colleagues in other parts of this building to come back once again to vote.
Mr. Mulcahy: Perhaps, I misunderstood something, However, as I understand the amendment in terms of the chairman for the time being, according to my amendment the actual chairperson of the Bar Council would be appointed on that date.
Mr. Currie: For three years.
Mr. Mulcahy: At a certain period of time they might cease to be chairperson of the Bar Council while they were still on this body. That is correct and I think the Minister will agree that that is not a problem in their appointment. It may be an appointment for the last six months, 18 months or two years of their reign. But it is not a problem of appointment because on a certain date there is a vacancy and the Minister can say “Yes, Miss Y is the chairperson of the Bar Council, therefore I will appoint her.”
Mr. Currie: Senator Mulcahy made a lot of noise about how democratic a solution this would be and that here was someone elected by his peers. Now he is suggesting that he or she be appointed because of the position they hold at the time there is a vacancy and that they will continue for another two years when they no longer hold that particular position. You are turning this logic on its head a bit, are you not?
Mrs. McGennis: Does that not apply to the Chief Justice, the President of the High Court and the Presidents of other courts, if they all retire within the three year period?
Acting Chairman (Mr. R. Kiely): I would appreciate it if you would let Senator Mulcahy complete his contribution.
Mr. Mulcahy: I have an idea. In fairness, the Minister of State, Deputy Burton, said she would take things into consideration. She admitted that this Bill was unique in that it was formulated by a Fianna Fáil-Labour Government which was succeeded by a different Government. Therefore, the Bill has been a process. I have a suggestion on my amendment which I would ask the Minister to consider over lunchtime and then I will perhaps withdraw my amendment.
Mr. Currie: You are not going to keep it going until 1 o'clock are you?
Acting Chairman: Senator Mulcahy, without interruption please.
Mr. Mulcahy: My suggestion is that it would be a practising barrister nominated by the Bar Council and a practising solicitor nominated by the council of the Law Society — in other words, the governing committee. I presume that Senator Neville, in his position as a member of the Employment Appeals Tribunal, is nominated by a body.
Mr. Neville: I am president of it, yes.
Mr. Mulcahy: Correct me if I am wrong, but in most nominating situations, Senator, you are nominated on the election of a body. I think the Minister would have to agree that it would be very democratic and seen to be involving both professions if the practising barrister or solicitor were nominated by the governing body of each of their professions. Please, Minister, do not dismiss that idea out of hand. There is  some merit in it. In the spirit of the way we are progressing I would ask that to be considered.
Mr. Neville: If this amendment was accepted would the chairman of the Bar Council when he ceased to be chairman be obliged to resign from it? It says “chairman for the time being of the Council of the Bar”. I assume that the person appointed would be obliged to resign, not being chairperson of the Bar Council. That would be one interpretation, but I will leave that to the Minister.
Mrs. McGennis: If the Minister's interpretation of Senator Mulcahy's amendment is correct — in that he is saying it is unworkable to have Marion McGennis, who happened to be president of the Bar Council, nominated to this board for three years because she would only be president of the Bar Council for a year — may I ask the Minister to explain that? Take the example of the President of the High Court. We referred to the Attorney General and I do not wish in any way to politicise this issue. Harry Whelehan was appointed President of the High Court and, as you know, he subsequently resigned; but had this advisory board been in situ at the time, would he not then have been a member of this advisory board for three years? That is a crisis scenario.
I know there is provision in the Bill to appoint people on the death of members, but are the Chief Justice and the other members of the board, if their term of office expires within one year of that, not entitled to continue on for the three year period? More particularly, in view of the crisis situation that prevailed in relation to the President of the High Court, is he not entitled to retain his position on this advisory board as the appointment is for three years?
Mr. Neville: The logic of what Senator Mulcahy is saying — that the person appointed would remain even though he was not president of the Bar Council — surely cannot be accepted on  the basis that the same would apply to the Attorney General. Surely the Attorney General, once he ceases to be Attorney General, even though he has only served six months——
Mr. Mulcahy: It is not in the Bill.
Mrs. McGennis: That is the question I am asking.
Mr. Neville: I am entitled to ask a question as well, Senator. Surely the Attorney General must resign and withdraw from the board when he ceases to be Attorney General.
Mrs. McGennis: It does not say that.
Mr. Neville: The new Attorney General will be a member of the board on the basis of the legislation before us.
Mr. Mulcahy: Senator McGennis has highlighted a very important point. There are specific retirement and replacement provisions in section 15, subsections (2), (3) and (4), for the presidents of the three courts, but there are no retirement and replacement provisions in the Bill for the Attorney General. The Minister need not put his eyes up to heaven. We are only going by what is in the Bill and trying to make sense of it. Unfortunately, no flexibility has been shown, even though we were assured by the Minister of State, Deputy Burton, yesterday that if good suggestions were made they would be considered.
The second point concerns the president “for the time being” of the Law Society. It is frequently a term in a contract that in the event of a dispute, the matter will be referred to the president of the Law Society of Ireland. If that matter is referred on 1 January, whoever is president of the Law Society takes seisin of that case. Even if they retire on 2 January, they still have seisin of that case and arbitration could last for 25 years. The Minister must agree that election by one's peers is democratic, but I am offering a second possibility  which is even more democratic and has the safeguard of the control of the professional organisation.
Unfortunately, I have not tabled an amendment to this effect. During Committee Stage of the Criminal Law (Incest Proceedings) (No. 2) Bill, 1995, the Minister accepted the spirit of an amendment but said she would formulate another. I will withdraw my amendment if the Minister accepts that the two people would be nominated by the two governing bodies, which is a sensible suggestion.
We are here to make good law and to protect the public. However, if the chairman of the Bar Council or the president of the Law Society of Ireland wants to become a judge, they can nominate a crony to the Judicial Appointments Advisory Board on the understanding that they will argue cogently and strongly in support their colleague who wishes to become a judge. The Minister cannot say that will never happen. I propose that the governing bodies of the two professions nominate somebody. This would ensure the independence of that person and would guarantee integrity and democracy.
My legal colleague, Senator Gallagher, would agree that the council of the Law Society of Ireland is responsible and so too is the general council of the Bar of Ireland. Surely, they are more appropriate to make such a nomination. I plead with the Minister to consider this.
Mr. Currie: There is no need for the Senator to get down on his knees to plead with me in this respect because the answer is no. He can decide on that basis whether to press the amendment. As regards nominating a crony to the board, I never cease to marvel at the deviousness of the Fianna Fáil mind.
Mrs. McGennis: I could list members in our constituency who could be described as cronies who have been  appointed to positions — perhaps not by the Minister.
Mr. Currie: I am not aware of any.
Mr. Neville: It is known as balancing.
Mr. Mulcahy: The Minister's words could be interpreted as suggesting that I was being devious. I am trying to protect the public and it is improper of the Minister to describe me as such. I ask him, if those words could be interpreted in that way, to withdraw the allegation.
Mr. Currie: I said I never cease to marvel at the deviousness of the Fianna Fáil mind and if the Senator interprets that——
Mrs. McGennis: That is unfair.
Acting Chairman: Were you referring to Senator Mulcahy as such?
Mr. Currie: No, it was a general point. I do not know enough about his mind to make a judgment on whether it is devious.
Mr. Neville: The Minister is learning fast.
Mrs. McGennis: I support Senator Mulcahy's request. As a friend of the Minister, I ask him not to describe the minds of members of the Fianna Fáil Party, of which I am proud to be a member, as devious. It is unfair and it is not becoming to a man of his calibre to speak about any political party in that way.
Mr. Currie: I will not withdraw the remark because I did not mean in the way in which it has been taken.
Mr. Mulcahy: The Minister said it did not apply to me.
Mr. Currie: I made a general point. The Senator may decide whether it applies to him.
Acting Chairman: It was unfair of the Minister to describe a political party in such a way.
Mr. Mulcahy: The Minister said it did not apply to me.
Mr. Neville: It is a reasonable political point. These points are made every day.
Mrs. McGennis: Not in the Houses of the Oireachtas.
Ms Gallagher: They are made in the Houses of the Oireachtas. Lies have been flung at my party by the Opposition and nobody batted an eyelid. That is politics.
Mr. Mulcahy: The Minister said the remark did not apply to me personally but it was a general one. While I disagree with him and I echo Senator McGennis's remarks, he is entitled to make a general remark. However, I would like him to categorically state that it did not apply to me personally.
Mr. Neville: He already said that twice.
Mrs. McGennis: I do not attack people personally or political parties by calling them liars or devious; I refer to specific instances. I will not allow the minds of members of the party of which I am a member to be referred to as devious. If this remark does not apply to Senator Mulcahy's mind, although he is a member of Fianna Fáil, then it must apply to mine. I ask the Minister to withdraw the remark.
Mr. Currie: I will not withdraw the remark. It did not apply specifically to Senator Mulcahy and certainly not to Senator McGennis.
The Attorney General will be on this board by virtue of his office. When he or she ceases to be Attorney General, they will cease to be member of the board.
Mr. Mulcahy: Where does it say that?
Mr. Currie: The Attorney General is there by virtue of his or her office.
Mr. Mulcahy: The Minister made a statement which must be clarified. He said the Attorney General is there by virtue of his office. The implication is that he or she must retire if they cease to be Attorney General or if the Government falls. This a serious point. There is no provision which states that if the Attorney General resigns, he must resign as a member of the board; this is extraordinary. Section 15(1), (2), (3) and (4) refers to the Chief Justice, the President of the High Court, the retirement of the President of the Circuit Court and the death or retirement of the President of the District Court, respectively. There is no mention in the retirement provisions for the Attorney General. The Minister is making up law as he goes along. He is making up rules which are not included in the Bill.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
Mr. Mulcahy: I was wondering if the Minister wanted to respond to the practical proposals I made before lunch. He obviously has not changed his tack. I pointed out that there were certain problems associated with the chairperson of the Bar Council or the president of the Law Society nominating people to this advisory body. I have been disappointed with the inflexible attitude the Minister of State has shown today. I am also surprised because it is in marked contrast to the attitude shown by the Minister of State, Deputy Burton, yesterday. Her statement that she would be flexible and take account of any valid suggestions has not been taken up by this Minister of State.
In addition, he decided to try and malign the reputation of the Fianna Fáil Party by describing it as devious. I accept that the description did not apply to either Senator McGennis or myself  but, having reflected on the matter over lunch, I believe he would do himself a great service if he were to withdraw the comment that he regards the entire Fianna Fáil Party as devious.
An Cathaoirleach: I ask the Senator to address himself to amendments Nos. 4 and 5.
Mr. Mulcahy: I thank the Chair for its wisdom in assisting in this debate.
The amendment deals with whether the chairperson of the Bar Council or the president of the Incorporated Law Society should be entitled to appoint anybody who is practising within their profession. It could be a solicitor of two weeks' practice or a barrister of one day's practice. There is no qualification or description of the barrister or solicitor to be appointed. We do not know what knowledge, insight, wisdom or positive attributes this person will bring. We are leaving it entirely to the president of the Bar Council or the chairman of the Incorporated Law Society to appoint a person of their choice.
Mr. Manning: Each of whom is elected by their peers.
Mrs. McGennis: He said that earlier but the Senator was not present.
Mr. Manning: I listened on the monitor.
An Cathaoirleach: I ask Senator Mulcahy to address himself to the two amendments, without interruption.
Mrs. McGennis: If the Senator had been listening properly, he would have heard——
Mr. Manning: I listen to what is worthwhile.
Mrs. McGennis: On a point of order, for the second time today members of  Fine Gael have attacked Members on this side of the House.
Mr. Manning: Such sensitive souls they are.
An Cathaoirleach: With all due respect, that is not a point of order.
Mrs. McGennis: The point of order is that the Member corrected Senator Mulcahy by saying that these people are elected by their peers. I simply stated that Senator Mulcahy said that in an earlier contribution.
An Cathaoirleach: That is not a point of order.
Mrs. McGennis: The point of order is that Senator Manning said he was listening to what was worthwhile. All of Senator Mulcahy's contribution was worthwhile.
Mr. Manning: On that we must differ.
Mr. Neville: Is a difference of opinion allowed in this House?
An Cathaoirleach: That is not a point of order. I ask Senator Mulcahy to speak on the two amendments. We have already discussed them at length.
Mrs. McGennis: If the Leader stayed out of the House we might get our work done.
Mr. Manning: Coming from the Senator that is something.
Mrs. McGennis: Everything I say means something.
Mr. Mulcahy: I understand that nobody, particularly at this time of year, wants to be here for a long time. However, this is an ill considered Bill, the rationale for which has not been shown. On the amendment, I accept my colleague's point, although badly expressed, that we want democracy. I  am speaking to the amendment, a Chathaoirligh, but I will not be rushed because it is too important.
An Cathaoirleach: I have not said anything to the Senator.
Mr. Mulcahy: You gave me a little hint.
An Cathaoirleach: No, I did not.
Mr. Manning: They are very sensitive today.
Mr. Mulcahy: I have two proposals to safeguard democracy. The first is that the president of the Law Society and the chairperson of the Bar Council themselves should be members of the board because they have been elected.
Mr. Neville: Whether they want it or not.
Mr. Mulcahy: The second proposal is that the person be nominated by the council of the Law Society or the Bar Council. That is a positive suggestion.
I am surprised to the extent of annoyance that the Minister does not seem to have taken proper consultation on this relatively modest proposed change. Can he not see the good sense in having a democratic mandate, either by way of selection by the Bar Council or the Law Society or by having the chairperson of either body on the board? It eliminates all the dangers.
I want this debate to proceed in as expeditious and good mannered a way as possible but we are dealing with some of the most sensitive issues affecting the administration of justice. If we must pore over every word for hours, it will be time well spent. I look forward to hearing what the Minister has to say on these sensible proposals and his withdrawal of the remark that the Fianna Fáil Party is a devious party.
Mr. Neville: This side of the House agrees that this is a very important Bill and we have no problem giving it as  much time as is necessary to get it right. I want to put that on the record. There is an implication that this side of the House wants to rush this Bill. We have no problem staying here to discuss it. I am my party's spokesperson on the Bill and I will stay here until 12 midnight, or 12 midnight Christmas Eve, to get it finished.
Mr. Currie: I agree with that. If we have to stay until midnight we will stay until midnight, but I detect, rightly or wrongly, an element of filibustering——
Mrs. McGennis: No.
Mr. Currie: ——which I am not prepared to facilitate. The Senator asked me two questions. he asked me whether I would withdraw remarks I made earlier and whether I had changed my mind over lunch time. The answer to both questions is in the negative.
Questions, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Mr. Mulcahy: I move amendment No. 5:
In page 9, paragraph (b) (ii), line 7, to delete “a practising solicitor who shall be nominated by”.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Mr. Mulcahy: I move amendment No. 6:
In page 9, lines 11 to 17, to delete paragraph (c) and substitute the following paragraph:
“(c) not more than three persons who are, for the time being, the President or a Chairman of a vocational body which said body is  a nominating body for candidates for elections to Seanad Éireann.”
I am sorry that the Minister would seek to denigrate my contribution here today as an attempt to filibuster and as merely——
Mr. Manning: The Senator should not be so sensitive.
Mrs. McGennis: He will be as sensitive as he wants to be. Senator Manning is not in a position to dictate anything.
Mr. Neville: It is nice to see Senator McGennis has been converted.
An Cathaoirleach: Senator, I must ask you, are you moving amendment No. 6?
Mr. Mulcahy: I am, a Chathaoirligh.
An Cathaoirleach: Senator Mulcahy without interruption, please, on amendment No. 6.
Mr. Mulcahy: Nothing I am saying here today is by way of a filibuster. I do not believe in filibusters. This is a good amendment. It is worthy of consideration and a chance for the Government to show its bona fides in respect of this board and of this Bill and I would hope it can see its way to accepting it.
In order to discuss this amendment properly we have to remember exactly what is the purpose of the Judicial Appointments Advisory Board: it is supposed to give the Government independent and competent advice in the shortlisting of candidates for the Judiciary. It has been totally accepted that it is the constitutional prerogative of the President on the advice of the Government to appoint judges. This body is to advise on the shortlisting of candidates aside from that process.
The Minister has made it very clear that in no way is she or the Government seeking to control this advisory body. However, she will be able to do so because the Minister appoints three persons  to the board, the Attorney General, who is appointed by the Government, is also a member — there are, therefore, four direct Government appointees — and then, of course, there are judges who may have been appointed by the Government. There will, in effect, be a Government appointed majority on this board. That is not to suggest that any person, especially from the judicial side, would be anything other than fair, impartial and objective in their deliberations and advice. I am not suggesting that that would be otherwise. However, let us think about how this will appear to the public. The Government has the Attorney General and three other appointees on this board; that is four out of ten or 40 per cent of the vote. That is close enough to a majority for people to be able to say that the advisory board is Government controlled, not independent as it is supposed to be.
My amendment would deliver some degree of control on the pool of persons the Minister would have in his or her discretion to appoint to the board. Nobody here needs reminding of the type of vocational bodies I am talking about. The Minister will be aware that, under our Constitution, for candidates to go forward in a Seanad election they must either be nominated by a parliamentary party or by certain vocational bodies which have this nominating ability by operation of law. It would be an excellent idea and in a sense mirroring the intention of the Minister in the form of words that she has used in the provision which talks about the knowledge or experience that the Minister considers appropriate of commerce, finance or administration. It is almost a paraphrase for the type of bodies that one would find on the nominating panels for Seanad Éireann — the Licensed Vintners Association, the National Youth Council of Ireland, etc.
It would be an excellent idea and it would send out the right signals if the Minister were to commit herself to appointing as these three people the  head or heads of three of these vocational organisations. It could be said that it might not include certain bodies who are not members of vocational panels. Yesterday she gave some examples. She specifically listed Women's Aid, Women's Refuge, people who go into court assisting the victims of crime, etc. The Minister said these were the types of people she might be appointing. If so, those bodies could also apply, and there is an application process to become nominating bodies for Seanad elections. Correct me if I am wrong, but the correct procedure is that these bodies apply under law to the Cathaoirleach of the Seanad for such status. I ask the Minister to give us a signal that the three people she will appoint to this board will be from that type of background and will not be chosen totally at random. Subject to that, there is no need for me to go over the wording of my amendment, but if there is any flexibility being shown by the Minister, this could well be considered in a positive light.
Mrs. McGennis: I support Senator Mulcahy's amendment. I am pleased with paragraph (c) in that it allows for participation of outside bodies or people on this advisory board. That is in marked contrast to the Civil Legal Aid Act, 1995, to which I and other Members submitted amendments which would have given the same effect as the Government's proposal, which would have allowed for consumers of the service to form part of that board, but in that instance the Minister, Deputy Taylor, refused absolutely to allow those kinds of people to participate on that board. He said it was inappropriate and that the board should be composed of barristers and solicitors and people who were au fait with the working of the law.
I welcome the acknowledgement that consumers of the service should be included on this board which I still feel is a sham.
I disagree with what is proposed in the section because the Minister will  have responsibility to appoint these three people to the board. The amendment proposed by Senator Mulcahy attempts to depoliticise that process and remove the responsibility for making such appointments from the Minister of the day. That would strengthen the specific intent of the section.
In addition to the Minister's entitlement to appoint three additional persons, the Attorney General will also serve on the board. This means that Government will control 40 per cent of the board. That is not the way to deal with this situation. It will not provide the kind of strength and independence to judicial appointments that the Minister intended.
Section 13(3) states that “The Board may act notwithstanding a vacancy in its membership.” If the board must make a decision, does the Bill state how many of its members need be in attendance in order to make a recommendation?
Mr. Mulcahy: A quorum.
Mrs. McGennis: I do not mean a quorum for the purpose of convening a meeting. How many members need be present to make a recommendation? It may happen that the Chief Justice or the Presidents of the High, District and Circuit Courts might not be in a position to attend as a result of their workload. The three members nominated by the Minister and the Attorney General could, as a result, make specific recommendations to the Minister. Perhaps this situation is dealt with under the Bill, but I am not aware of it. The subsection merely states that the board may act notwithstanding a vacancy. What is the situation in relation to members who are unable to attend?
The intention behind section 13 (2) (c) is good and is similar to the intent I proposed in relation to the Civil Legal Aid Act. However, in the interests of ensuring balance and independence, the Minister should not be permitted to nominate the three additional members to the board. When the names of candidates are put forward, it will ultimately  be the Minister's decision to approve their appointment. The amendment might help broaden the scope of the list of names of those suitable to hold judicial posts. The Minister for Justice and both Ministers of State, Deputies Burton and Currie, have referred to the independence and impartiality of the board. In that context, it is imperative that the Minister of State amend section 13(2)(c) and take on board Senator Mulcahy's recommendation.
Mr. Currie: With regard to Senator McGennis's query in relation to the number of members of the board who need be present to issue a recommendation, I draw her attention to section 14 (1) which states:
The Board may adopt such procedures as it thinks fit to carry out its functions under this Act and may establish subcommittees of the Board to assist it.
The board must agree its own procedures. The legislation does not impose any particular procedures on the board.
Mrs. McGennis: Does that mean that one person could submit a shortlist?
Mr. Currie: The Senator inquired about a quorum.
Mr. Mulcahy: One person could submit the list?
Mrs. McGennis: Could they submit it if they so decide?
Mr. Currie: The Board may adopt such procedures as it thinks fit to carry out its functions under this Bill.
I have noted the points made by Senator Mulcahy. Subsection (2)(c) provides that the Minister may appoint three persons who must be engaged in, or have knowledge or experience of, commerce, finance, administration or persons who have experience as consumers of the services provided by the courts, that the Minister considers  appropriate. This gives the Minister discretion to appoint persons from the private and public sectors who would bring to the board suitable experience and knowledge. The Minister would be required, under the provisions of the section, to satisfy herself that the person she appointed had appropriate knowledge or experience.
The provisions of the section will allow the Minister to introduce a wide range of experience into the advisory board's process, including persons who can represent people who rely on the courts on a daily basis. Representatives of victims of crime, women's groups and other bodies could bring an invaluable and new perspective to the consideration of the suitability of candidates for judicial appointment. The provision, as it stands, allows for the appointment of suitably experienced persons to the board. I hope that the Deputy will withdraw his amendment.
An Cathaoirleach: Is the amendment being pressed?
Mr. Mulcahy: Do I have a right to reply to the Minister?
An Cathaoirleach: Briefly.
Mr. Mulcahy: I am extremely disappointed with the calibre of the Minister of State's contribution to what is a decent and considered proposal. When I say “calibre”, I do not mean it in a personal sense. However, the Government has obviously decided not to invest its time, effort and energy in a consideration of the proposals we have put forward. My suspicion — that the Government is determined to grimly retain control of 40 per cent of the membership of the board — has been confirmed. This is what is being done. The Minister cannot dispute the fact that his reply made no mention of the merits of the amendment which I tabled. The Minister merely quoted from the section and stated that the provisions are adequate. He did not state  why the three nominating bodies to the Seanad would not be suitable. That is not good enough.
A proposal has been put forward to remove, from the Minister for Justice and the Government, the obloquy they might be under if they were seen to “pack” the Judicial Appointments Advisory Board. This is similar to the case of the Attorney General, where the Minister of State could not inform the House whether that officer should retire. The Minister has stated now that he does not know if a quorum is required. As Senator McGennis discovered, we could be faced with a situation where the attendance of one member of the board constituted a quorum.
I do not mean this in a personal sense, but it would have been better to have had the same Minister of State, Deputy Burton, present again today in the interests of continuity. I stress to the Minister of State that I do not mean this in a personal sense.
Mr. Currie: What other way can I interpret it?
Mr. Mulcahy: The same person should have dealt with the entire debate.
Mr. Currie: Deputy Burton spoke on the Government's behalf yesterday and I am speaking on its behalf today.
Mr. Mulcahy: Is the Minister informing me that he studied the debate at length——
An Cathaoirleach: Senator Mulcahy will confine his remarks to matters relevant to the amendment.
Mr. Mulcahy: ——we had yesterday.
An Cathaoirleach: We are dealing with amendment No. 6, Senator.
Mr. Mulcahy: I am disappointed that the Minister of State did not pay us the courtesy of informing us why the amendment is not suitable. It has a clear  advantage over the Bill, as it stands, in that in nominating three chairpersons from nominating bodies to the Seanad, one traverses the hurdle of accusations of bias and “packing” in relation to the board. I urge the Minister of State to show a degree of flexibility which has heretofore not been shown.
Ms Gallagher: I will be brief. With regard to the amendment, Senator Mulcahy is sincere in what he proposes. I believe that the section is somewhat vague in terms of the possible scope of appointees. Be that as it may, the section attempts to ensure that the three ministerial appointees possess some experience in the areas of commerce, administration or as consumers of the system.
I have a problem with regard to the proposed amendment in that it would be very difficult to select three from the 100 nominating bodies. I would have grave concern if the chairman of the Irish Kidney Association, for example, were nominated. I intend no disrespect to any of the associations but their members would not necessarily have any experience in relation to what is required of them as members of the advisory board. I do not believe the amendment achieves anything in practical terms and those are the reasons for my objection to it.
Mrs. McGennis: There seems to be an inconsistency in the Government's approach to section 13 (1) (b) and 13 (1) (c). Maybe we are right on one issue and wrong on the other because in section 13 (2) (b) it is the chairman of the Bar Council of Ireland or the president of the Law Society of Ireland who will appoint someone from their respective organisations. We have not been told the reason because, as Senator Mulcahy says, we have not been told there is a problem with his amendment. If it is the chairmen of these associations who will recommend the persons to the Minister under the Bill, I cannot see why there would be any problem. For example, if the National Women's Council was a  nominating body — and I do not know if it is but, as Senator Mulcahy said, it is open to them to apply — would it be acceptable to the Government that its chairperson recommend a person as a member of the board? Apparently the Minister of State, Deputy Burton, said yesterday in this House that she wanted to see ordinary people represented on this advisory board, so there is an inconsistency here. Why, when we are dealing with barristers and solicitors will the Minister not make the direct appointment? If there was consistency throughout this section the Minister would nominate the barrister and solicitor because it would not be considered appropriate that the group or organisation make the nomination. However, when it comes to the “ordinary people” who were discussed yesterday — the users, consumers and the people with the expertise — it is not good enough or appropriate that the bodies they represent should make the nomination and it is only the Minister who should appoint these people.
Either there is something wrong with section 13 (2) (b) or section 13 (2) (c) or we will bring consistency to bear and agree, where outside bodies are concerned specifically, that it should be the body which should nominate the persons concerned. Amendment No. 6 is a huge improvement to the Bill. It would strengthen it and give the board the desired independence.
Mr. Manning: There are a number of serious flaws in this amendment. First, using the vocational bodies introduces an element of restriction into who it is possible to appoint. These bodies are fairly wide in scope but they do not include all aspects of Irish life and there are some serious omissions. There are also some odd or strange bodies which are good in their own way but are almost closed shops; anybody who has ever looked for a nomination will know the extent to which many of these bodies are effectively closed shops. To that extent, if the Minister must pick from among these bodies, it probably  excludes people who might well make the sort of contribution Senators are talking about.
Second, by concentrating on the chairman or president of those bodies, it may well exclude people, even on those bodies, who might be worthy of consideration. The chairman or president may not always be the more appropriate person as sometimes people are elected to the chair or presidency because they have given long service, it is their turn, etc.
Third, how does one choose between 100 different bodies? For example, how does the Minister choose between the Society of the Irish Motor Industry, the Irish Kidney Association and the Congress of Trade Unions?
Finally, if the Minister wished to pack the board in a political way — a danger which the Senator pointed out and must always be there — he would accept this amendment because one can easily find two or three organisations out of the 100 which are controlled by political parties. We all know there are certain bodies which will nominate a candidate from one party over another. It is a fact of life.
Mr. Mulcahy: I bow to the Leader's experience.
Mrs. McGennis: I was not aware of it.
Mr. Manning: I listened carefully to  the Senator's argument. In fact, if one wanted to do the sort of things the Senator is attempting to guard against, the Minister would accept this amendment and be happy with it.
Mrs. McGennis: If the Leader accepts it, we will accept it.
Mr. Currie: Senator Manning has made a number of valuable points with which I agree. Packing organisations and bodies has been a continual theme in contributions from the other side of the House.
Mr. Mulcahy: CIE.
Mr. Currie: There is a particular mind set in operation in relation to these matters. We do not look at it from that point of view and, as Senator Manning explained, to adopt this amendment would make the matter more exclusive and more liable to the sort of packing which is being suggested. These are additional reasons for not accepting this amendment.
Mr. Mulcahy: I thank the Minister, at least, for addressing the amendment.
Mr. Currie: I was being helpful to the Senator in not addressing some of the points he brought up when putting forward the amendment.
Question put: “That the words proposed to be deleted stand.”
The Committee divided: Tá, 20; Níl, 15.
|Belton, Louis J.
Cregan, Denis (Dino).
Enright, Thomas W.
Farrelly, John V.
Ross, Shane P.N.
Tellers: Tá, Senators Cosgrave and Burke; Níl, Senators Fitzgerald and Ormonde.
Question declared carried.
Amendment declared lost.
Section 13 agreed to.
Mr. Mulcahy: I move amendment No. 7:
In page 9, subsection 2 (c), line 33, after “Board” to add “with the prior approval of the applicant”.
Section 14 provides that the board can make its own procedures and undertake certain activities, such as advertising and processing of application forms, consult persons and invite persons to submit their names for consideration by the board.
Subsection 2 (c) provides that the board may consult persons concerning the suitability of applicants to the board. I am not sure how familiar the drafters of the Bill or the Minister are with the current procedure regarding judicial appointments. However, the unquestionable fact is that, in the past, a watertight confidentiality existed with regard to judicial appointments. I have been a practising member of the Bar since 1985 and, almost without exception, whenever anybody was appointed a judge of any court it came as a great surprise to me and to the vast majority of members of the Bar. It also probably came as a surprise to the vast majority of practising solicitors.
If the appointment was not made in secret, it was certainly done confidentially. This does not mean there were not consultations. As I understand it, the process was that, informally, people would submit their names in writing to the Department of Justice requesting that they be considered for the position of judge of this or that court whenever a vacancy arose. The Minister would then have a list of interested names so that when a vacancy in a specific court arose, he or she would consult with the Attorney General who, in turn, could consult with one or two judges.
My colleague, Senator O'Kennedy, will have an added insight into this because he has been on both sides of the fence, having been a Minister and a practising member of the Bar.
Mr. Enright: He was very likely offered a position.
Mr. O'Kennedy: And declined.
Mr. Mulcahy: That is another matter. One of the reasons this process has been conducted confidentially is that there is a perception at the Bar that, if it became known that one was in the running for or interested in judicial appointment, it could have an effect on one's practice, certainly as a barrister. Say, for example, a solicitor is thinking of briefing a barrister in a major case that is to go on for several years, as many cases do and the solicitor finds out that the proposed barrister is interested in being a judge, he will rightly think that the barrister may be a judge in six months time and decide not to brief him and give him work that may last for six or seven years. We spoke yesterday about the length of cases, delays and one or two cases are being heard in the High Court for over one year, and it has probably  been three, four, five, six and seven years since the issuing of proceedings.
There are many other reasons people could find this compromising, embarrassing or detrimental to their careers. I am sure Senator Enright will enlighten us how, if word got out that a solicitor were to be appointed a judge, it could affect his practice, especially in rural communities where word would spread.
An Cathaoirleach: Senator Mulcahy on the amendment.
Mr. Mulcahy: The wording of the amendment is careful, and states: “... with the prior approval of the applicant”. There is to be no consultation with anybody except with the approval of the applicant.
The Minister may say this approach is hopeless and that if consultations cannot take place, the applicant does not have a chance. However, this is for the applicant to decide. If the applicant is a barrister, he or she will be known by some of the judges and probably by the Attorney General and, if a solicitor, will almost certainly known by the person nominated by the Law Society.
The applicant will not, therefore, be a stranger. It is fair enough if the Chief Justice advises applicants that if they do not allow the board consult with other people it may not be able to recommend them. Perhaps the applicants will not be on the recommended list, but at least they will have the satisfaction of knowing that nobody has been consulted without their approval.
By contrast, the applicants could give their approval to consulting a certain person. For example, they may agree to a request from the Chief Justice to consult person A and C, but not person B. There is, therefore, a degree of control. Applicants can ensure that those consulted will be restricted to a class of people who will treat the matter as confidential and who will not gossip about the fact that they have applied for judicial office.
 It is proposed that the board will comprise ten members. They may consult with many people as the Bill appears to give them wide discretion to consult here, there and everywhere on the suitability of an applicant. The applicant then becomes the topic of public conversation.
The Minister must agree that much of what I have to say on this issue makes sense. The legal community, either at the Bar or in the solicitor profession, is very small. It would take only one or two people to start gossip.
Progress reported; Committee to sit again.
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