Dáil Éireann debate -
Wednesday, 27 Apr 2022

Vol. 1021 No. 2

Judicial Appointments Commission Bill 2022: Second Stage

Minister for Justice (Deputy Helen McEntee)

I move: "That the Bill be now read a Second Time."

I am delighted to open the debate and the deliberations of the House on the Judicial Appointments Commission Bill 2022. The proposals I am presenting in the Bill are transformative and I believe they will provide for deep and wide-ranging reform.

The reformed appointments system will be seen to clearly emphasise the principles of meritocracy and independence. It is designed to meet both our own constitutional standards and the standards set by the Court of Justice of the European Union, CJEU, regarding independence and the rule of law in judicial appointments. The overarching change is that all appointments to any court in the State will be based on recommendations from the new commission. The Government discretion to appoint will be from a limited choice of three candidates. This will be for every judicial office in the State, right up through the courts system to the office of the Chief Justice. Every judge wishing to be considered for appointment to a higher judicial office must apply to the commission. They cannot be appointed by the Government without a recommendation by the commission. Indeed, no one can be appointed a judge without applying to the commission and being recommended. In an important adjustment to the general scheme of the Bill, the Bill incorporates into the commission's remit recommendations for nominations by the Government to courts outside of the State and this includes the CJEU and the European Court of Human Rights, ECHR.

We should not take our strong record for judicial excellence and independence for granted. We are very well served by the Judiciary and we are fortunate in that regard. However, it is time to underpin that with a strengthened appointments system. Deputies will know how important it is to review and to strengthen the structure and organisation we have around the entire justice area. I am committed to that. This is just as much as the case when it comes to the central part played by our judges in every court in the State and where we are involved outside of the State. The approach that is being proposed by the Government will require interviews to be carried out and will make training and continuous professional development mandatory for those seeking to be appointed. This represents a significant limiting of the discretion that the Government will have. The Bill will also ensure that we will continue to have a strong, independent Judiciary in this country, which is a cornerstone of any liberal democracy.

We have moved on from the 2017 Bill, on which I believe this Bill is an improvement, on the basis of reforms which are required in the area of judicial appointments. Today's Bill, like previous Bills, is about setting up a new commission to replace the Judicial Appointments Advisory Board, JAAB, as well as to recommend persons for appointment as judges by the President on the advice of the Government under the Constitution. Unlike the earlier Bill, the 2022 Bill provides for a smaller nine-person commission, which I believe would be more effective than the earlier proposal of a 17-person commission. The remit of the commission is now wider, and the new process is substantially different from what had been planned previously, with the make-up of the commission very different. I will explain how I believe the outcome will be an improvement on the approach that had been previously envisaged.

As I set out the overall view of the Bill, I will focus on the adaptation of the general scheme where that is relevant.

Part 1 deals with interpretation, including some key definitions and other standard introductory matters. Part 2 is about the commission itself. Deputies will be aware that previous legislation, or certainly the debate on it, seemed at times to be very focused on the membership of the commission including, in particular, the balance of lay and judicial membership and the chairing arrangements. The programme for Government commitment to bring forward this reform was very clear. The new commission is to be chaired by the Chief Justice. The Chief Justice has chaired the JAAB for in the region of 25 years. I take this opportunity to thank the Chief Justice and his predecessors and all of their JAAB colleagues for all of their work over that period. One of the first requests I made, in looking at the older legislation, was that my Department look again at the composition of equivalent bodies internationally and consider what the European Commission and the Committee of Ministers at the Council of Europe were saying on this subject. Canada and its different provinces, for example, appear to me to be strong on representing particular lay interests and the Northern Ireland model provides guidance on the balance of lay and judicial involvement. Our 1995 Act provides for three lay members out of a total membership of ten and later, three out of 11 in total when the President of the Court of Appeal was added. Enhanced outside expertise, which can be provided through lay involvement, will be an important addition to the commission.

My conclusion is that an equivalent of judicial and lay members is best, with one of the judicial members being the Chief Justice, as chairperson, with the requirements for lay membership being as practical and flexible as needs be, as section 13 demonstrates. Court presidents, as required, should be members when the relevant recommendations are being made, with the President of the Court of Appeal being a permanent member. I note that the Oireachtas Committee stated that section 9(1) would operate as follows. When, for example, recommendations for appointment to the High Court are subject to the commission's deliberations, the President of the High Court will become a member of the commission instead, temporarily, of the President of the Court of Appeal, for that purpose. This is a common-sense approach.

Section 12 will provide for the nomination of two judicial members by the Judicial Council. The Bill provides for one male and one female judge. One of these judges will be a judge of the Supreme Court, Court of Appeal or High Court and one will be a judge of the Circuit or District Court. Of the two judges, one shall have been a practising barrister and one shall have been a practising solicitor at the time of their appointment as judges. The latter aspect will bring the understanding, knowledge and background of the relevant legal professions to the task of making informed recommendations when those judges are nominated by the council and appointed by the Minister to the commission. The Attorney General will be a non-voting member, bringing the total membership of the commission to nine.

On composition and gender balance, other than ex officio members, I have provided for a male and female nominee of the Judicial Council and section 13 provides that the selection criteria shall have regard to the need that recommendations for appointment by the Minister of the four lay members comprise an equal number of men and women as well as also reflecting the diversity of the population as a whole.

Under Part 2, I want to ensure that the commission has a particular obligation to set out its strategy for the achievement of the diversity objectives set out in section 39. In an addition to the general scheme, section 28 provides that the commission will publish a diversity statement not later than two years after the coming into operation of that section and thereafter at least once in every four-year period or less. The diversity statement shall include the procedures put in place to achieve the diversity objective, including how they will assist to remove barriers faced by persons who are under-represented in judicial office. I carefully considered the outcome of pre-legislative scrutiny in this matter. These sections of the Bill complement the commitments I have set out in Justice Plan 2022, which commits to bringing forward proposals to drive reform of legal education. These will include removing barriers to entering the legal profession, increasing diversity and introducing independent oversight of professional legal education for the first time.

Part 3 provides for a small supporting resource for the new commission - a director to be appointed by the Minister and staff. The director shall be responsible to the commission for the performance of his or her functions.

Part 4 in many ways is the pivotal set of provisions. The desired values we already associate with our Judiciary will only be reinforced under section 39. It provides that the decision by the commission to recommend a person must be based on merit. The recommendations made by the commission must have regard to essential requirements set out in the Bill. The most obvious ones, covered in section 40, concern basic eligibility concerning practice of the law and for appointments outside of the State, the criteria and requirements of the relevant institutions, conventions and available guidance. The recommended person must also have satisfied the commission that he or she possesses the relevant knowledge, skills and attributes set out in a judicial selection statement under Part 5. Critically too, subject to the merit stipulation in section 39, the commission must have regard to the objectives of having equal numbers of men and women judges in all courts, having a Judiciary reflective of the diversity of the people in our country and of meeting the need for the conduct of court proceedings in the Irish language.

Staying with Part 4, Deputies will know that currently - and historically - when an appointment of a serving judge to higher judicial office is made, it will not have come through the Judicial Appointments Advisory Board. The remit of the board under the Courts and Court Officers Act 1995, as amended, is restricted to persons seeking appointment for the first time as a judge. To illustrate, a judge appointed to the High Court sometime in the past on a recommendation of the JAAB, were he or she interested in further appointment now to the Court of Appeal, would not be applying to JAAB, and that board would have no part in that further appointment. A real strength of the new process under the Bill and the commission is that there will be a single application stream for all applicants. To be clear, all those wishing to be considered for appointment to judicial office must make an application to the commission under section 43 and a recommendation can only be made to the Minister arising directly from such an application. An important element of section 43 is that an application can only be made pursuant to an invitation to make applications issued by the commission by way of advertisement under section 42.

We are also moving toward a more structured approach to appointments in another area. In a change from the general scheme, I am including in the remit of the commission the making of recommendations to the Minister for Justice or the Minister for Foreign Affairs of persons for nomination by the Government for appointment or election to judicial offices outside the State. The Bill will give the task of selecting and recommending persons for these roles in the Court of Justice and the General Court of the European Union, the European Court of Human Rights and the International Criminal Court to the new commission. I refer Deputies to sections 42(2) and section 48 which give the Minister for Foreign Affairs direct involvement in this. I want to acknowledge the very positive contributions to this part of the Bill made by the Minister for Foreign Affairs, Deputy Coveney, and his Department.

Part 4 also contains another fundamental reform. The position to date is that the appointment of judges, on advice to the President, is an executive function under the Constitution. That does not change, of course, but in section 51, I am providing for the first time in law that only recommended persons, that is, persons recommended by the commission, may be appointed to judicial office in the State. The same applies under section 52 to nominations to judicial office outside the State such as to the European Court of Human Rights and so on. The 1995 Act requires the Government to first consider recommendations made by the JAAB and it is an important change that Government may only appoint recommended persons. Since the foundation of the State, we have had a strong and independent Judiciary and by providing that only recommended persons can be appointed to judicial office, we will ensure that this continues to be the case while meeting our constitutional requirements.

This Bill proposes a change to the current JAAB procedure regarding the number of recommendations that the commission will make. I refer Deputies to sections 47 and 48. The Bill provides for three recommendations across all of the different judicial offices, all of those in the State as well as the Court of Justice, the European Court of Human Rights and the other international courts. Under the 1995 procedure, the JAAB process, which, as I said, is confined to only new appointments and only judicial offices in the State, it is a minimum of seven recommendations although in many instances, far more would be received. I am now proposing in this Bill to significantly limit the discretion which the Government of the day has in relation to selection and appointment of judges. Under the Bill the names of three persons will be recommended with an additional two for each additional vacancy in a court. If, for example, there are three appointments to be made to the High Court, we can expect seven names in total to be recommended. However, the Commission may recommend fewer than three persons in some circumstances, for example, where less than three eligible persons apply or where the commission cannot recommend three or cannot recommend the additional numbers for more than one vacancy.

The Minister will be informed of the names of all of those persons who have applied to the commission. The Government will not be able to appoint from a list of persons where there is no recommendation but I believe the Minister for Justice should have a clear picture of the interest there may be in a given role and an understanding of the diversity of persons making applications. Having reviewed the matter, I have decided that there is no necessity for a special top-level committee to advise the Government on the Chief Justice or any other of the highest ranking judicial positions. The commission will deal with all recommendations for all posts here or abroad, from the District Court right up to the top of the judicial system. This is the best approach.

There is an important commission function stipulated under Part 5, that of preparing and publishing a judicial selection statement. That statement will bring together both the selection procedures that the commission will use to select and recommend persons and the requisite skills, attributes and knowledge that the commission will adopt in determining those persons who are most suitable for appointment as judges.

The Bill makes particular provision to strengthen how courts are positioned to deal with the needs of those wishing to conduct their business in the Irish language. Under section 56, the commission shall consult the Courts Service about the needs of users of the courts with respect to proceedings being conducted in the Irish language and may request the Courts Service to produce a report in the matter.

The judicial selection statement must, in setting out the knowledge and skills required for judicial office, specify how these take account of the needs of such users of the courts.

Section 61 is a key provision. It requires the commission to monitor and review, among other things, the effectiveness of the procedures set out to achieve the objectives of gender balance and diversity among the Judiciary and Irish language needs in court proceedings, and to report to the Minister in the matter.

Other key reforms include that no person should be recommended without being interviewed, and section 46 provides accordingly. The Bill also sets out a requirement that those seeking appointment must have undergone continuing professional development education and training programmes. These are important changes.

Part 6, in section 63, expands eligibility for appointment so that for the first time service as a judge of the District Court will reckon as qualifying service for appointment as a judge of the High Court. For the first time, legal academics working in specified educational institutions will become eligible for appointment as a judge of any court, as will barristers in employment, that is, practising barristers as now to be defined for this purpose in line with the definition contained in the Legal Services Regulation Act 2015. The Bill also streamlines the process for assignments of District Court and Circuit Court judges in Part 6.

This reform is comprehensive and positive. I see it as a key element of overall judicial reforms, complementing what has been achieved under the Judicial Council Act 2019 and contributing to the modernisation of the courts system. It is, in fact, a complete overhaul of the system put in place in the law all of 27 years ago. The joint committee pre-legislative scrutiny deliberations and outcome were very helpful and constructive. I thank colleagues for this, including Deputy Lawless, the committee and other contributors.

Ongoing implementation of civil justice reforms, such as the work of the Judicial Council, an enhanced family justice court system and work being done in the area of judicial planning, will improve the efficiency and outcomes of the administration of justice in our courts in the time ahead of us. We are moving to introduce independent oversight of professional legal education for the first time, with a commitment to remove the barriers that exist for people who want to become solicitors and barristers. I will also shortly bring to Government an action plan to implement the 90 recommendations set out by the review group chaired Mr. Justice Peter Kelly to improve the civil justice system. The Government's action plan will commit to reform in all areas of civil justice, including litigation costs, case delays and access to services and legal aid, with our objective being to make the civil justice system more efficient and, most important, easier for people to access. Bringing the judicial appointment process up to date as part of these overall reforms and ensuring it is fit for purpose will make a real difference. I am looking forward to the contributions of colleagues in the course of our debate and will be very happy to deal with any aspect of this reform that Deputies wish to address today and subsequently in later debates. I commend the Bill to the House

Acting Chairman (Deputy Kathleen Funchion)

We now move to Sinn Féin and Deputy Martin Kenny, who has ten minutes

Deputy Martin Kenny

Go raibh maith agat, a Cheann Comhairle.

Acting Chairman (Deputy Kathleen Funchion)

That is the fastest promotion I have ever got.

Deputy Martin Kenny

I am sure you would not turn it down.

I thank the Minister. This is an area that requires reform and we all understand and accept that. The Bill certainly goes in that direction. It is welcome. It is a vast improvement on where we have been up to now. The perception has been that it has been a closed shop. People with obvious connections got into positions that perhaps they would not have got into had they not had such connections. This is what is at the heart of this. It is to come up with a reform process that can deliver a very fair and exact way in which we can appoint our judges and stand over it. There is recognition that while the JAAB process has served us to some extent it has had failings and shortcomings. It is recognition of this that brings us to the Bill today.

The new judicial appointments commission having an equal number of lay and judicial members is a vast improvement. We were looking for balance in the past. A former Member, Shane Ross, had a long battle when he wanted to see a majority of laypeople in the positions. This had merit and it is something that perhaps we can revisit again as the debate continues. Having a lay chair and a majority of lay members of a board, commission and selection committee would be useful. It would certainly remove that perception of bias or the well-connected being looked after. It is something that has to be considered further.

I understand the Chief Justice will chair the commission. There are opportunities and the Minister mentioned the deliberations we had at the committee. One of the recommendations made was that the president of the court to which the appointment is being made would be on the commission, for example, the President of the District Court. This recommendation was worthy and useful. At one point there was a request not to have pre-legislative scrutiny. The pre-legislative scrutiny has paid dividends and has worked well. The Minister will accept this. During Covid we have seen applications for pre-legislative scrutiny to be set aside to rush through Bills. It is a very bad way to do business. It is a means of assessing legislation, making recommendations and teasing out issues at an early stage so improvements can be made that do not then have to be debated and worked out later. It is useful that we had pre-legislative scrutiny.

Three judges will be nominated to go forward for one position. It would be useful if they were ranked as first, second and third choice. It would also be very useful for everyone concerned that if, for whatever reason, and there may be valid reasons, the first choice was not acceptable, the Minister would set out the reasons for it. These are the key issues that could be improved upon in the legislation before us.

We have a lot of work to do to create the diversity the Minister spoke about and which we require to reflect general society in our Judiciary and the legal profession. There has often been a family tradition among solicitors and family law. Naturally enough, people end up following on in succession into the legal profession. This has meant it has been more difficult for people who do not have these connections to become lawyers, solicitors or barristers. This is something that needs to be re-examined. In her speech the Minister made reference to this. We need to work harder to find a way to be more inclusive and to embrace the diversity that, thankfully, exists in our society today.

I understand there are now larger numbers of women taking up the law profession and the Minister is a law graduate herself. This is healthy and good. There are diverse backgrounds among the people throughout the country. We have thousands of people from eastern Europe living in Ireland. We have people from Africa and all over the world living here. There needs to be a huge emphasis on trying to ensure that not only do they get in at the bottom end of various professions, be it medical or health professions or other professions, but that they can climb. There should be opportunities to advance for people from whatever background they may come. There should be equity built into this to ensure we can progress in a way that will reflect the diversity of our society. We have not had this. While the Bill deals with it to some extent, a lot more needs to be done in this context.

Various organisations have welcomed the Bill and have moved it forward. I understand the Irish Council for Civil Liberties, ICCL, has welcomed it. It has made a number of recommendations where it feels more work needs to be done. The Bill proposes the Chief Justice be the chair of the judicial appointments commission. It recommends the judge sitting on the commission should be elected by his or her peers, as in international standards. In other words, the chair should be elected by his or her peers rather than appointed by the Minister. This would be appropriate and it is something that could be examined.

It is welcome that this process includes the international courts and will look at such courts, particularly the European Court of Justice, etc. We will make nominations to that through this process. It is also useful to have a system that not only appoints judges coming from the various legal professions but which would also seek to be the conduit with which people would get promotion from the lower to higher courts. Currently the Judicial Appointments Advisory Board has no role in this and it is a big failing.

It is certainly one of the big impressions people have that people advance through the ranks because of the connections they have. Sometimes it is insinuated because of the political connections those people have or had in the past. That may well have been the case at a time but this legislation must put an end to such a practice very clearly. I know we have had our battles over the appointments of former Attorneys General to very senior judicial positions. I certainly feel it is inappropriate for them to move across in that manner and it is something that must be addressed. The Attorney General should not be appointed to the Judiciary automatically or immediately on retirement from the position of Attorney General. There should be a cooling-off period, at least, before that could happen. It should probably be an even stronger provision than that.

The use of the Attorney General in the judicial appointments commission is also problematic. It means the Attorney General is involved in the process of selection of who is to be nominated and is also very close to the people who make the nomination. It is an issue that must be dealt with. It is not appropriate that the Attorney General, as a political appointee, be involved. Again, it creates more of the impression that it is about being well connected, who you know and the circles in which you move. It is a mistake to have it there and the Attorney General should be removed from the process. There is an abundance of legal expertise that could be brought to bear on the process without having the Attorney General as part of it. That will be one of the key improvements that could be made to the legislation brought before us.

In the round we support the direction of the Bill. There will be amendments that we will bring forward on Committee Stage and probably on Report Stage as well, depending on how things go. The Bill is welcome but it is probably 20 years since talk started of changes or improvements being made in the area. We have been slow getting to this stage. The legislation is nonetheless welcome and I certainly hope it moves through the process in the House not at great speed but with judicious examination of all the consequences from it. We must be very careful with this and do it right. It must be right for the future so everyone can have confidence in the Judiciary and move forward.

Deputy Ruairí Ó Murchú

I seem to be the mudguard today. I seem to be in here just for that. Everyone, and particularly the Minister, will be glad I did not have the full ten minutes.

In fairness, I will not reiterate everything Deputy Kenny has said, although I may reiterate one or two of his points. We all welcome this legislation as necessary, particularly as the reality of the world is that people think others get on better with connections. That may not always be the case but with the Judiciary we must ensure not only that there is absolute transparency but that all due diligence is done on best practices in delivering the best Judiciary we can. In addition, that must be seen to be the case and we should leave no room for anyone to question beyond that.

The proposals mentioned by Deputy Kenny must be considered, particularly those relating to the Attorney General. It should be possible to separate that political appointment from this process and it might be necessary. Beyond that we must look at injecting, for want of a better term, more lay people into the board. Everyone could see the straightforward advantages in that, and it furthers the idea of being seen to operate in a transparent and accountable way.

Many people might say that to some degree we are dealing with legacy matters and sometimes it might be seen that it is the people who are connected who get these positions. After saying I would not reiterate much of what Deputy Kenny has said, I suppose I will now do it. There may be family connections and history in the law, for example, and this clearly leads to a state of play where a large number of people with connections get these positions. From a societal perspective, we have wider work to do to ensure there can be more of a flow of other people into these positions.

We are talking about a completely changed society and it is certainly not the same Ireland in which I grew up. I was going to say the surnames of many of the friends of my son are very difficult to pronounce but many people in Dundalk might say that about my name. Many of the names are different from what we had in the 1970s, 1980s and long before that. A Judiciary should be like every other body in the State and it should reflect the people who make up our society. There is a wide piece of work we need to do on that. There is a large number of people at the periphery and we have fundamental work to do on the early interventions that could bridge the gap so as to allow people to get on the right path, whether that is into education, apprenticeships or anything else. I know this is a tangent, to some degree, and I have a tendency to go on those, but there is wider work to be done right across society.

It is very difficult to speak about the Judiciary and the criminal justice system without speaking about how we need the sector to be resourced properly. At the transport committee now we are dealing with questions of planning. We know there will be a review by the Attorney General but we must ensure the entire infrastructure is resourced, including the judicial element. Beyond planning we know the issue arising from backlogs in our courts. There is the idea that justice should be public and it should be swift, and that goes across the board. It needs to be the case.

We welcome what has happened with the Kinahan cartel. I am aware of particular cases in my constituency outstanding for a significant period and some of them involve serious criminal or violent activity or gang activity. We just need to ensure we put all the required parts in play. There is also the wider question of a citizens' assembly on drugs. We are running against ourselves at this point and we need a better solution.

Deputy Donnchadh Ó Laoghaire

I have five minutes in which to speak but I probably spent in excess of five hours speaking to the previous legislation that sought to resolve these matters. There are differences in the detail of the Bill but there is a consensus that the process for appointing judges must be radically transformed. It is a matter that has been debated in these Houses for approximately 20 years.

The appointment of judges carries enormous weight and consequences and we must only consider the intensely political nature of the appointment of judges in the United States to understand the significance and weight of the decisions, particularly for superior courts. It is not a good model by any manner of means. The process has major implications for individuals and their liberty, as well as victims and their families. It also has significant implications for how the laws we pass and the Constitution are interpreted, the philosophy that is taken and any other amount of factors. It is vital that we get the appointment of judges right.

Our Constitution gives power to the Government alone to appoint judges. There is a bit of a contradiction in that there is a political consensus, at least rhetorically, that we want our Judiciary to be as independent as possible. We also want the process of appointing those judges to be as independent as possible.

The best we can do, and what various pieces of legislation that have not ultimately come to fruition have attempted to do over the course of the years, is to try to tighten the frame in which Government can make those appointments, not to, I suppose, create a specific obligation on the Government to a particular judge but to try to constrain the space that exists. I recognise this legislation attempts to do that. There are areas in which we would like to see improvement. It is still my view a lay majority and a lay chair are best. I am absolutely of the view that we cannot stand still on this. We cannot allow this debate to continue perpetually. I would say the process in place currently is probably one of the weakest in Europe at this time. It is undoubtedly the case that appointments to the superior courts have been, at the very least, perceived to have been political. It is important we remove that perception and ensure the process is seen to be as objective as possible.

I welcome that we are moving in the right direction. Deputy Kenny has talked about amendments we will be tabling. It remains my view a lay majority would be much more preferable. On the nature of the laypeople, it is important they come from a diverse set of backgrounds to ensure the people feeding into this process are as representative as possible, because it will have huge implications for us all. I also want to touch on the fact this was a large area of discussion during the course of the previous Government. The whole area of judicial reform is not only limited to appointments. I welcome the passage of the Judicial Council Bill in recent years. Certainly, it was a majority priority for us. The Government at the time was relying on our support. We were keen to ensure we proceeded with the Judicial Appointments Commission Bill, but we also needed to proceed with the Judicial Council Bill. It needed to be given high priority.

A significant part of that was ensuring our sentencing law was reformed. It was on the back of engagement between me and the then Minister for Justice and Equality, Deputy Flanagan, that for the first time, a sentencing guidelines committee was to be established within the judicial council. That is a very significant step, the implications of which we will see over the course of the coming years as sentencing is created for all manner of offences, and rightly so. As I impressed upon the then Minister, Deputy Flanagan, we saw that when sentencing guidelines were introduced in Britain, adherence to those guidelines was very strong indeed. Consistency improved significantly. It is the case there is sentencing in this State that is inconsistent, inadequate and sometimes, frankly, inappropriate and not fitting to the kinds of crimes committed. I know the sentencing committee is in the course of being established and initial steps have been taken. I look forward, over the course of the coming time, to the Judicial Council and the committee addressing those issues with sentencing to ensure we have fair and consistent sentencing for crime in this State.

Deputy Brendan Howlin

In introducing the lapsed Judicial Appointments Commission Bill 2017 into this House on the 27 June 2017, the then Minister for Justice and Equality, Deputy Flanagan, said "it has been a long journey to this point". I do not think the then Minister envisaged how long the subsequent journey was about to be, although there are those who would say he was among the first Ministers ever to filibuster his own Bill. The passage of that Bill was long and never achieved fulfilment.

It is a fact that, on occasions, the appointment of senior judges and, indeed, the mechanism for appointment itself has caused both political and public concern and disquiet. The current Judicial Appointments Advisory Board, JAAB, system is, in essence, as the Minister will know, the outworking of the agreed system for judicial appointments after the major disagreements that occurred between the Fianna Fáil-Labour Party Government in the mid-1990s on the appointment then of Harry Whelehan, Attorney General, to the presidency of the High Court. The Minister will be aware I, as a member of that Government, have some detailed knowledge of those events. In fact, I was one of two Labour Party Ministers, the other being the then Minister for Enterprise and Employment, Ruairí Quinn, and two Fianna Fáil Ministers - the Minister of State, Noel Dempsey, and the then Minister for Transport, Energy and Communications, Brian Cowen - who were appointed to come up with a new appointments system. We drafted and agreed a structure, which we brought to Government, was put into legislative form within a week and was published within two weeks as the Courts and Court Officers Bill 1994. As the Minister can imagine, it was a Bill that was done with a great deal of haste. Some would argue there was a political imperative about that rush. That Bill lapsed a few short weeks later, when that Government collapsed. A revised Courts and Court Officers Bill was introduced a year later, in 1995, which in essence is the structure we have used for the appointment of judges from then.

It has been argued the original 1994 Bill was required for political expediency, as I have said. I can attest that a political difficulty did give the Labour Party the opportunity to put forward a very significant reform agenda for a judicial appointments system, for which, I have to say, there was no great political appetite at the time. On the basis of the adage, "never waste a good opportunity", we thought we could actually bring about significant reform of judicial appointments. That is what we had envisaged in the 1994 Bill that was produced.

Having been a Member of both the 1994 and 1995 governments that proposed both the 1994 and 1995 Bills, I can say the pressure that was available to us in drafting the 1994 Bill to bring about reform with Fianna Fáil after the Harry Whelehan affair had to be rebuilt with the new Government partners, notwithstanding the agreement that was written into the new programme for Government to review the 1994 legislation and the backlog of cases that then, as now, existed in the courts system. I will leave it to others to determine which of the systems - the one set out in the 1994 Bill or the one set out in the 1995 Bill - was the better. The changes between the two were the result of inputs from our new Government partners, one of which was the Minister's own party. At its core, both Bills proposed the establishment of an independent screening board to recommend to Government suitable candidates for judicial office. The Government would exercise its constitutional role of selecting a person from those recommended by that selection board, the JAAB. The recommendations would go to Government and it would then recommend to the President the person or persons to be appointed to the Judiciary. The actual functioning of the judicial appointments system is covered with both expertise and clarity in Deputy Carroll MacNeill's excellent book, The Politics of Judicial Selection in Ireland, which is worth a read in the context of the evolution that has gone on on this subject for the past 20 years.

There are issues that are fundamental to our democracy at play here, namely, the right of a democratically elected Government to exercise its constitutional prerogative, and to do that in an accountable manner; the basic necessity in a functioning democracy to have a strong but clearly independent Judiciary that is capable of making decisions that annoy Government and can run counter to populist or even popular opinion; and to ensure as far as is possible the best people are actually appointed to the vacant positions. The politicisation of the Judiciary, despite many comments about it, has, I believe, thankfully, not been an issue in this State very much.

If we look to other democracies, the same cannot be said. A previous speaker referenced the US Supreme Court, which is entirely politicised now, and much hangs on the political complexion of individual members appointed to that court in the United States. Constitutional rights and fundamental laws that have been determined by the Supreme Court in the past are potentially now to be overturned. These are not small matters by any stretch of the imagination, and the concerns do not end at the borders of the United States. Concern about judicial appointments in some of our EU colleague countries are equally of great concern, and there was a debate yesterday in the European Parliament on the rule of law, focused on the Polish Prime Minister, who was present in the Parliament at the time. There are real concerns about the basic values of an independent judiciary being an underpinning value of the European Union, even within the European family of nations.

These are very important issues to get right and this is a most important issue. The normal argument that “If it’s not broke, don't fix it” cannot be the approach we adopt here. We have been fortunate to date in having excellent men and women serve in judicial office and they have served this country extraordinarily well. However, we need to be mindful that simply because we have been fortunate to date does not mean the system will always produce that sort of excellent result, and I think the sort of changes we are now addressing are completely warranted. We need a clear legal underpinning in an open and transparent manner for one of the most essential and important functions that is ascribed to the State.

This Bill proposes the establishment of a judicial appointments commission - yet again - whose function is to select and recommend persons for appointment to judicial office, both to the domestic courts here in Ireland and to the international courts where Irish judges are appointed. From previous experience, the two fundamental questions that need to be addressed are, first, the membership of the proposed commission and who is actually going to make those recommendations and, second, the level of discretion which will remain with the Government in making the final choice. In my judgment, they are the two criteria we need to look at in the context of this legislation. The Government proposes to have a nine-member commission chaired by the Chief Justice and to include the President of the Court of Appeal or, as the Minister has outlined in her Second Stage contribution, an alternative court president from the court to which the vacancy is to be filled; two members of the Judicial Council, one a barrister and one a solicitor; four lay members, three selected by the Public Appointments Service through open competition and one nominated by the Irish Human Rights and Equality Commission; and the ninth-----

Deputy Helen McEntee

It is four lay members now.

Deputy Brendan Howlin

I beg your pardon. It is four members selected by the Public Appointments Service. The ninth member is to be the Attorney General in a non-voting capacity, and I take it that is still the Minister's position.

I listened with care to the debate and argument in regard to the inclusion of the Attorney General. There is understandable concern that, if we like, the Attorney General gets two bites of the cherry or is at two phases of the selection process. He is in attendance, although not in a voting position, at the commission that will actually make the nomination and then he is the chief legal adviser and, in fact, from my experience of having sat in three different Cabinets, will have enormous weight in terms of judicial appointments at the Cabinet table itself. I think it is not the best solution that somebody who is at the level of recommendation is also at the level of decision-making. I would agree with the notion that the role of the Attorney General is to advise the Government. I would be much more comfortable with the decision simply that he or she would advise the Government on the recommended names that come to the Government from the commission.

I looked at the suggestion by the Irish Council for Civil Liberties and others, and repeated earlier by Deputy Martin Kenny, that there should be a ranking. I am not sure it is a good idea that there would be a ranking of names. I think some discretion should be left to the Government in terms of the degree of knowledge a Government will have of individuals, and I am not sure about a ranking system. As long as every name that comes before the Government is certified appropriate and fit to serve, then it is a matter for the Government to make that decision. I am not sure a ranking system would help that and, in fact, I think it would diminish the independence of the Government in making its own final decision.

By and large, I believe this commission structure proposal is a good and robust proposal which meets the tests of competency and transparency. The commission is to be assisted in its work by a judicial appointments office with a director and staffing. I say this as an aside because I am in an agreement that this sort of support is required, but I remember the pressure I was under and the great fanfare that was made by the Minister's party about the burning of the quangos. I understand we have created more non-governmental and support organisations in recent years than we had undone in the great burning of the quangos that was suggested. However, that is an aside.

My first question as to who makes the recommendation and selection is, I believe, well met in the proposals we have before us. Except for the caveat that I have entered in regard to the inclusion of the Attorney General, I think that commission proposal is not too large but is adequately large to be competent, functioning and representative, all of which are good things.

The specific requirement that the commission must address the objective that membership of the Judiciary should reflect the diversity of the whole Irish population is particularly welcome and especially important. It is a requirement, in a very changed population base, that that is reflected in all aspects of our Administration. I have to say that, before we start giving lectures to the Judiciary and everybody else, we have to look around here and see how reflective this House is of a very changed Ireland, and that is something to which we, as politicians, have to give some regard as well. I welcome that. I also welcome the requirement for judicial training and continuing professional development. These are very important and welcome developments.

A most reasonable point has been made again by the Irish Council for Civil Liberties that the legal professions too must address the diversity issue. In truth, it is very hard for a new commission to select qualified people to be appointed, or be recommended to be appointed, as judges if the profession from which those nominations come are so overwhelming drawn from one sphere or aspect of our population. Therefore, the legal professions too must seek to mirror the communities they serve, as we should here in this House too and in the other House.

That largely deals with the first question I pose and I have less than four minutes of speaking time to deal with the second question, which concerns the discretion that remains legally available to Cabinet to make the final decision. Again, very significant progress has been made in the right direction in this proposal that is before the House. Under these proposals, as I understand it, the Government can select from a shortlist of three coming from the commission in regard to a single vacancy, or a shortlist of five in the case of two vacancies, or seven in the case of three vacancies.

I listened to the Minister's opening statement. She also said that a lesser number could be recommended in the event that either there were not enough qualified persons determined by the commission or, as the Minister said, "the commission may recommend fewer than three persons in some circumstances where less than three eligible persons apply...or where the commission cannot recommend three." I have concerns about that because at the end of the day the Government must have some discretion. If a commission is so minded to say it will make the decision to send on only one name and say that as far as it is concerned there is only one qualified person, there is no discretion which the Constitution says is the prerogative of the Government. I ask the Minister to reflect again on that.

It would be extraordinary for any position that there would not be three suitable people that could be recommended to Government. We need to have some discretion left with Government in exercising that because, ultimately, the Government is democratically accountable. The commission, no matter how august the personages on it will be, will not be accountable or questionable with regard to its decision-making but the Minister will be, both in this House and to the electorate. I would give that minimum of discretion legally to the Government.

The unfettered right of appointment of judges remains with the Government although Article 35 says:

The judges of the Supreme Court, the High Court and all other Courts established in pursuance of Article 34 shall be appointed by the President.

Article 13.9 says that:

The powers and functions conferred on the President...shall be exercisable and performable by him only on the advice of the Government.

The Constitution gives an exclusive right to the Government to make these decisions. Up to 1995, that was a complete carte blanche to make those decisions. By and large, Governments did not make outrageous decisions up to now.

However, we need the sort of reform that is there now. We need to ensure that the powers and functions that we have are exercised in light of different times and that we have a mechanism that is transparent and robust. The proposals put before us meet those criteria. I will look to make one or two amendments on Committee Stage but this is a good day's work and we need to get this Bill enacted. It is timely and appropriate to make these very fundamental and significant changes to the appointment system for our judges.

Deputy Patrick Costello

It is very easy for us to be effusive and wax lyrical about the fundamental importance of the separation of powers and an independent judiciary. It is also very hard to overstate it because it is absolutely fundamental to a functioning democracy. We can argue about the separation between the executive branch and the legislative branch another day but at least we have had a strong tradition of judicial impartiality and a strong independent Judiciary.

As Deputy Howlin said, we do not have to look very far to see the consequences for justice when that is impacted and undermined. It is easy to talk about concepts such as justice but it is a fundamental thing that is felt every day by people standing in the courts in front of a judge. Knowing they are getting the best judge, arbiter and decision-maker to stand in front of is of fundamental importance and is absolutely important to get right.

I welcome this Bill and our improvements and reforms to ensure we and the Government make the right decisions and that our courts remain apolitical, independent and unafraid of Government in order to make those strong decisions that are needed in the name of justice and the basic rights that we give ourselves in our Constitution. They are the protectors of Bunreacht na hÉireann.

One of the things I truly welcome in this Bill is the onus on diversity within our Judiciary. It is incredibly important that the Judiciary looks like modern Ireland and represents every voice. If somebody is standing in a courtroom wondering whether he or she will get justice, knowing that the Judiciary reflects him or her and modern Ireland is an assurance to that person that he or she will and can in fact get justice. That is fundamentally important.

Equally I welcome the requirement and improvements with regard to judicial training and continuing professional development. Like others in this House, I have sat in a witness box in a professional capacity. I have stood in front of a judge in a professional capacity. Let me just say the variety of experience judges have and the variety of wisdom they can bring to a case is interesting. It is also incredibly important.

When I was a social worker we were working in Dolphin House. We often talked about theoretical or professional concepts from social work such as attachment, parenting capacity and such. A barrister who has spent most of his or her time dealing with a commercial list and is appointed a judge may have no idea what I am talking about. It is a huge step forward to ensure that those things are happening in terms of training and continuing professional development. Suitability to make the important calls as they sit on the bench is not just judged at the moment that they are appointed. It continues throughout their career.

There is a movement to more specialised courts and with that comes more specialised barristers. I spoke to one friend who used to do a mix of criminal and tort work. Since the opening of the new courts of justice, he has dropped his tort cases because he just cannot move between the two buildings sufficiently. As we open new family law courts and buildings that will happen again. We are producing more specialised barristers. That is not necessarily a problem but these people become judges and end up judging something that is criminal when they have never been a criminal practitioner or judging family law while all they have ever done is company law.

We need to be cognisant of over-specialisation and the impact that may have. That is a very nebulous concept but it is important to raise. Continuing professional development and judicial training is an important break on that. That is not to cast aspersions on any of our current Judiciary but it is an unintended consequence that we need to be aware of into the future.

It is not just about the quality. It is also important to talk about the quantity of judges. This is especially important in terms of access to justice. We could talk about legal aid but with one minute and 20 seconds left, I am not sure I have enough time for that. Former Chief Justice, Mr. Frank Clarke, recently chaired a conference on access to justice and talked about how Ireland languishes at the bottom of various international tables in terms of our spending on justice. We have 3.3 judges here per 100,000 of population compared to a European average of 21 per 100,000.

I was speaking to one barrister, the same barrister as earlier, who in January was getting a trial date for someone he was defending in March 2024. These are significant waits. When we talk about the sea change for victims of sexual violence, dragging cases out for two or three years is part of that.

It is not just the High Court but also the District and Circuit Courts where there are huge waiting lists. We must tackle this backlog of cases by appointing more judges and by appointing judges who are not necessarily bound to one district or circuit but who can move to wherever there is the demand and need. It is not just about the quality of judges but about the quantity of judges. I welcome this Bill, which addresses issues of ensuring we have the same quality of judges in future as we have had so far, but we must also address the issue of quantity.

Deputy Pa Daly

The reform of the process of appointing judges is long overdue. In keeping with the controversies mentioned by other speakers, my primary concern is that we get the best and most capable judges possible through any process. Political patronage does not necessarily promote those who are incapable of doing the job, but it certainly does exclude from consideration those who are as capable if not more so. I do not know if it still exists, but there was a culture in the law of some individuals joining political parties with the intent of keeping an option open as to whether they might get an appointment to the Bench. I remember being at a Law Society dinner once, where a late colleague came to the table and asked whether the six of us were ready for the Fianna Fáil church gate collection on Sunday morning. To my surprise, I discovered when I checked that I was the only one who was not a card-carrying member.

An Leas-Cheann Comhairle

That is why you are here.

Deputy Pa Daly

Yes. In any event, it is not right and proper. There must be some transparency. Accountability is important and independence must be safeguarded. I must add that some of the people at that table, by the way, would have made fine judges. I might be relying on them for a vote at another time.

Turning to the process of how people come to be judges and how they are promoted and elevated when they are on the Bench, it is important that some of the lay members of the commission have experience in consumer protection, perhaps trade union activity and-or the Workplace Relations Commission, WRC. The judges being appointed should, as was mentioned by Deputy Costello, have some experience in the courts. If not, they should be trained up. It is also not really appropriate for the Attorney General to be involved in the process. As a member of the Joint Committee on Justice, I look forward to fuller engagement with the Minister regarding this legislation at a later stage. I welcome section 39. It is important to have equal numbers of men and women. Much work has been done on this aspect. It is also important to have a Judiciary reflective of the diversity of the people in the country. Equally, it is important that Irish speakers can access the courts through their native language.

On a broader issue, I raise the issue of judicial processes on the island. I met Paula Rainey recently. She is the daughter of a Royal Ulster Constabulary, RUC, man who was killed in 1977. Her father was Joe Campbell, who was shot dead as he closed Cushendall station in County Antrim. His family believe he had uncovered collusion by members of the police with paramilitaries. Information was withheld from him regarding a specific threat. The RUC was, at least, negligent and failed to act to prevent one of its own being killed. Mr. Campbell was not even warned. In a subsequent investigation, the Chief Constable could not remember the incident. The investigation was inadequate. The Ombudsman's office investigated it and said it was damaging to the family and to policing. His widow is now 87 years old. The members of the family have waited since 1977 for truth and justice. I ask the Government not to consent to the amnesty legislation and to ensure the inquest is not delayed any more. It is also necessary to ensure the terms of reference for the inquest state the British State will be compelled to undertake a transparent process and not be able to hide behind any false national security claims.

An Leas-Cheann Comhairle

I call Deputy Catherine Murphy. Before we start the clock on her contribution, I wish to let her know I will be interrupting her in two minutes.

Deputy Catherine Murphy

Reform of the system of judicial appointments and promotions is sorely needed and long overdue. Problems with the current process have been pointed out time and again by people in this Chamber, the media, the public and legal professionals and international bodies. As it stands, the judicial appointments system is wide open to cronyism and political interference. It is an unaccountable system controlled by a small group of Cabinet members and their advisers. Cabinet confidentiality, which I do not dispute is required, leaves the process entirely opaque.

A Judicial Appointments Advisory Board, JAAB, was set up in 1996 with the stated aim of introducing some measures of independence to the process, but it fell far short of real reform. The problems inherent in the board were well known from the get-go because the lack of transparency and a vulnerability to political interference, a very good example of which we have just heard, was purposely built in. Over 25 years, successive governments have refused to reform the system because of an unwillingness to let go of the political influence they have held. I commend the Minister for Justice, Deputy McEntee, on bringing forward this Bill. It goes a long way towards instituting the reforms sorely needed. Critically, the practice of barristers and solicitors getting the tap on the shoulder from JAAB or the Minister will be gone. Applicants will no longer be able to be invited to make applications but will have to do so of their own accord.

Formalising the application process and selection criteria will introduce some badly needed transparency for applications and for the public. Undoubtedly, it will strengthen public trust in the Judiciary. I welcome the improvements made in the legislation since the general scheme was published. It is good to see some of the recommendations made by the Joint Committee on Justice and by various groups have been accepted. These include the decrease in the number of names being recommended from five to three, only those recommended by the commission being nominated to Government, the need for judges seeking promotion to go through the same process, and the commission being required to improve diversity in the Judiciary. These are welcome changes that have considerably strengthened the Bill. I do not doubt there will be further amendments and I hope the Minister will be open to accepting some of them.

Significant recommendations made during pre-legislative scrutiny were not accepted by the Minister. First and foremost was a recommendation-----

An Leas-Cheann Comhairle

This is a good point for me to interrupt. The Deputy will be in possession when we resume tomorrow.

Debate adjourned.