General Scheme of the Judicial Appointments Commission Bill 2020: Discussion (Resumed)

The purpose of this meeting is to resume our engagement on the general scheme of the judicial appointments commission Bill 2020. We are engaging with stakeholders who made written submissions on the general scheme. This is the second instalment of our engagement on this matter. We had a previous engagement about four weeks ago with a number of other witnesses. I thank Deputy Carroll MacNeill for chairing that session in my absence. She is our in-house expert on the topics involved and I thank her for stepping into the breach. She is also the Vice Chairman of the committee and has a particular expertise and interest in the matter.

Today's witnesses are appearing virtually before the committee from outside the Leinster House precincts. As per the current fashion, we are holding remote sessions and that is working well on a practical level but there are some limitations. I welcome the witnesses to the meeting. We are joined by Mr. Liam Herrick of the Irish Council for Civil Liberties. ICCL. Mr. Herrick is welcome. His organisation is becoming familiar to the committee and I thank him for his continued input. We are also joined by Ms Gemma McLoughlin-Burke, also from the ICCL. I thank Ms McLoughlin-Burke for attending. She is a procedural rights fellow at the ICCL. We are also joined by Mr. Kevin Condon, a principal officer from the civil legislation unit in the Department of Justice. The Department's representatives regularly attend and participate in our meetings. I thank all involved for being here.

I invite witnesses and members to make sure they unmute their devices when they are addressing the committee so that we can capture the sound. I ask members and witnesses to mute their devices while not contributing to avoid picking up background noise or feedback. I also ask that they use the raise hand function when they wish to contribute.

Before I invite the witnesses to deliver their opening statements, I advise them of the following regarding parliamentary privilege. All witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of a person or entity. Therefore, if statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

For witnesses attending remotely outside of the Leinster House campus, there are some limitations to parliamentary privilege and, as such, they may not benefit from the same level of immunity from legal proceedings as a witness who is physically present in the committee room would, and I ask them to be mindful of that.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside of the Houses or an official either by name or in such a way as to make him or her identifiable. For members who are participating remotely, I offer the usual advice about keeping their devices on mute until they speak. They might have their cameras switched on unless they need to turn them off and be mindful that we are in public session. There is the procedural privilege requirement that because of the constitutional requirement as interpreted by the Houses of the Oireachtas that members must be physically present within the confines of the place, namely, Leinster House, a member cannot participate from outside Leinster House in this session or, indeed, any similar sessions.

Finally, I remind members that the clock is as always against us. We have two hours for the session. That is a decent period but if we run up against the clock, we have a strict cut-off point because of Covid limitations. I ask members and witnesses to adhere to the subject matter because I will not be able to let the meeting stray too far off the agenda.

The format of the meeting is that each witness and or organisation will be invited to make an opening statement of approximately five minutes. Once the opening statements have been delivered, I will call on members of the committee to put their questions or comments to the witnesses and the meeting. Depending on the time, there may be an opportunity for a second such round. Effectively, we will have opening statements from the witnesses, we will have questions and comments from members, and we might do one or two rounds depending on time. As I said, the duration of the meeting is limited.

I will move on to the witnesses. I will begin with Mr. Herrick, who has been with us before and who is very welcome back. I am delighted to have him with us again. Mr. Herrick has five minutes in which to make his opening comments.

Mr. Liam Herrick

I thank the Chairman. I thank the committee members for inviting us to be with the committee today. As the Chairman has already indicated, I am joined by my colleague, Ms McLoughlin-Burke, who is procedural rights fellow with the ICCL.

As members of the committee will know, the ICCL is an independent human rights organisation which has played an active role in public discourse on matters of law, policy and human rights since its foundation in 1976. In particular, our perspective is to ensure that Irish law and practice is compliant and meets the standards of the constitutional rights and the rights set out in international human rights law. Our founders include the late Kader Asmal, professor of law at Trinity College Dublin, the late Mr. Justice Donal Barrington, a member of the Supreme Court, and Mary Robinson, former President of Ireland and UN High Commissioner for Human Rights, and the administration of justice has been a particular priority issue of the ICCL in its work. In 2007, we published a report, Justice Matters, which was a comprehensive analysis of the issues of independence and accountability with regard to the Irish judicial system and we have made a number of submissions on the question of judicial reform over recent decades.

The judicial appointments process in Ireland has been a point of contention and controversy in recent years and the ICCL believes that a deficit in formality and transparency in the system has impacted on public confidence in the Judiciary. In that context, we strongly welcome the proposals in the proposed Bill to introduce clear and transparent criteria by which appointments would be made, and we share the Government's stated objective of promoting diversity and ensuring that the Judiciary is one which is truly representative of the people of Ireland. Although the ICCL recognises that the proposed Bill marks a significant improvement on the preceding appointment process, we are concerned that some of the provisions fall short of international best practice. In preparing our submission on the proposed Bill, we relied on and referred to international standards derived from a number of treaties, including international human rights treaties, the European Convention on Human Rights and the European Union Charter of Fundamental Rights.

Sorry, I believe there might be somebody speaking.

I wonder if all of those not currently contributing could mute their microphones. There is interference coming through. I apologise to Mr. Herrick for interrupting.

Mr. Liam Herrick

I thank the Chairman. We have also relied on the UN basic principles on the independence of the Judiciary, the Council of Europe recommendations on the independence and efficiency and the role of judges, the European Charter on the statute for judges and the International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors. There is a wide range of international standards from which to draw and which can inform the legislation.

On the question of independence and who should constitute the appointing or nominating body, the current proposals recommend that the Chief Justice, two members of the Judicial Council and the president of the court in which the vacancy arises will form part of the commission. In line with international best practice, the ICCL recommends that the three suggested judicial members of the Commission should be elected by their peers in order to ensure the strongest possible transparency and independence.

The Judiciary must be representative of the society over which it adjudicates. All appointments should take into account the fundamental importance of ensuring diversity and appropriate representation in the Judiciary. This should be reflected in the criteria for appointment to all judicial posts. Broadly speaking, we welcome the approach that is taken in the proposed Bill in this regard. We recognise, however, that as the Judiciary is drawn from the senior members of both legal professions, it will not be possible to address the objective of achieving diversity without looking at the question of diversity among the senior reaches of the Bar and the solicitors' profession.

The process must be transparent. The introduction of clear objective criteria based on merit is welcome. However, the number of recommendations by the commission to the Government should be reduced, in our view, to three for one nomination and five and eight, accordingly. We believe that we should minimise the discretion of Government in the process to the greatest extent possible to achieve the strongest level of public confidence. We also believe that there is no justification for a separate process for the appointment of senior officers of the court - the Chief Justice and the presidents of the superior courts. A separate system for such senior appointments which is more heavily politically dominated, and has a role, for example, for the Attorney General as a voting member, risks undermining the benefit of the general appointment process.

In order for the appointment process to maintain public confidence, there must also be some level of accountability. Where there are welcome provisions here about a report back to the Oireachtas subsequent to appointments, we believe that where the Government decides to deviate from what is recommended by the Judicial Appointments Commission it should have to give reasons. We are clearly recommending that the recommendations of the commission should include a ranking of candidates as well as a smaller number which will greatly enhance independence. It should be noted by the committee that the proposed approach would, in fact, retain a discretion for Government to circumvent the Judicial Appointments Commission completely. Bearing that in mind, it is very important that we strength the process of the commission.

The ICCL sees the proposed Bill as a radical and hugely welcome opportunity to improve the judicial appointment system process in Ireland. If approached correctly, these changes can have the potential to enhance public confidence in both the Judiciary and the rule of law. We make eight recommendations in our detailed submission which we believe can further enhance the approach being taken and we look forward to engaging with the committee and any questions the members might have on our submission.

I thank Mr. Herrick for his concise and targeted opening. I now call to our next witness, Mr. Condon from the Department of Justice. He is very welcome. I look forward to the engagement with him today. Mr. Condon has five minutes to address the committee.

Mr. Kevin Condon

I thank the Chairman for the opportunity to contribute to the committee' deliberations today. The judicial appointments commission Bill is currently at an advanced stage of drafting. The Government approved and published the general scheme of the Bill in December. It was forwarded to a number of key stakeholders at that time, including the Judiciary and the legal professions, and a number of submissions were received. I might focus on a number of principles that underpin the provisions in the general scheme.

There was broad acceptance of the need to update the Judicial Appointments Advisory Board arrangements, which were put in place via legislation introduced more than 25 years ago to deal with first-time appointment of judges. There was also a recognition that the involvement of lay persons in the process should be increased, expanding the experience and knowledge brought to the process of selection.

There was a need to expand the remit of the advisory body to include promotions, or elevations, of serving judges, which now is addressed under an informal process for the appointment of serving judges. The Judicial Appointments Advisory Board has no role in this. In the programme for Government brought forward last year, it was determined that the process of appointing judges for the future should remain under the leadership and guidance of the Chief Justice, and a substantial judicial input in the process is advisable. To support the new arrangements, the Government agreed that a small dedicated resource be established through an office under the supervision of the commission. An important further principle, to which the previous speaker referred, was that merit will become the defining criterion for the selection of judges. This should be expressed in statute, with regard to other key objectives, which the general scheme sets out. It was also understood that the commission should be enabled to develop statements of judicial skills and attributes, as well as selection procedures, having regard to particular criteria. This structured approach would allow the commission to further develop the requirements for judicial recommendation and selection. A further point was that the constitutional position relating to the Government's function of appointing judges be maintained.

Regarding consultations, a public consultation process was conducted in 2014 focusing on questions relating to the Judicial Appointments Advisory Board process, independence of the Judiciary and related matters. The outcome of those consultations is still informing the fabric of the scheme and the earlier forerunner Bill.

The Judicial Appointments Advisory Board, which was established on foot of the Court and Court Officers Act 1995, was a landmark development at the time, introducing a new, independent element to the judicial appointments process. Article 35.1 of the Constitution provides that judges are appointed by the President. Under Article 13.9, such power is exercisable and performable only on the advice of the Government.

As members will be aware, a key element underpinning the 2017 Bill, which remains in the general scheme, is the composition of the commission. A significant change in this scheme compared with the previous Bill is that the Chief Justice will be the chairperson of the new commission and that there will be an equal number of laypersons and judges. The Attorney General will also be a member. The board has been chaired since its inception by the Chief Justice of the day and this ensures that the selection process is rigorous and meets the need for a strong, independent Judiciary. I am sure we will go on to look more closely at the composition of the commission and members may have questions about that. The lay contribution of the board is an important consideration. The scheme makes reference to a number of areas of experience and knowledge that it is anticipated lay members appointed to the commission will have.

A key aspect of this Bill is that all judicial positions are covered. The Bill replicates the 2017 Bill approach whereby all persons who wish to be considered for appointment to judicial office, including serving judges, will be required to apply to the commission. At this time, the Judicial Appointments Advisory Board deals only with first-time judicial appointments. For the elevation of serving judges from one court to another, there is no system at all in statute other than the constitutional process. It would appear that it is no longer sustainable that there is no statutory process in place to address some of the most important appointments to any office in the State. There is general acceptance that these arrangements should be updated in the manner envisaged in the planned Bill, in the interests of good governance, transparency and accountability.

Before I call on members, I will start the ball rolling. My first question is for the ICCL but Mr. Condon should feel free to answer if he wishes. It strikes me that one of the deficits in the arrangements we have had for the past 25 years, since the Judicial Appointments Advisory Board was created, is that it appears to act as a sort of Garda vetting mechanism rather than an actual selection vehicle. People have to go through the Judicial Appointments Advisory Board and get out the far side to be available for selection but it does not appear to have a role in prioritising, weighting or ranking candidates. Am I right in saying that? Within the confines of the constitutional framework, is that something that can be addressed outside of a referendum or would we need to go one step further and change the Constitution?

Mr. Liam Herrick

The Chairman summarised our perspective very clearly. The Bill should be trying to achieve a shift from a system of vetting, in which candidates are simply excluded if they are unsuitable, to one in which candidates are actively selected and recommended. I believe that is the intention of the Department in bringing forward this proposal. Our preference is that the recommendation of the commission include a ranking of candidates in order of preference. We note that some of the other experts who have been before the committee have also suggested an obligation to actively engage with candidates, including through interviews and so on. That is an interesting recommendation but we are broadly coming from the same perspective. We should be moving towards a more active selection and recommendation process. That is a clear recommendation from our point of view.

Do we need a change to the Constitution to allow that or can it be done within the current framework?

Mr. Liam Herrick

Mr. Condon might have a view on behalf of the Government in that regard. We note that in the proposed approach, the Government would retain absolute discretion to appoint judges who are not recommended by this process at all. In that context, very wide discretion is being retained. We can only assume that is for constitutional reasons. It should be possible, however, to establish conventions and norms whereby the vast majority of appointments, if not all, are done through the process. If that is the case, it should be a rigorous system of selection purely based on merit. That is our understanding of the approach being taken. In our view, there is clearly no constitutional difficulty with the proposed scheme because the Government is retaining absolute discretion to appoint judges as it sees fit.

I agree. Can we do more or is it a necessary prerequisite to have a referendum in order to do more? Perhaps Mr. Condon could advise on that. What is the Department's position?

Mr. Kevin Condon

The scheme could be represented as quite a rigorous blueprint for a much more robust process. The later heads of the Bill provide for that, for example, by bringing forward quite detailed statements of skills and attributes that potential judges would be required to have, as well as more rigorous selection procedures. It would be fair to say that that kind of robust approach is not fully reflected in the process that is in place now. We have no advice that any constitutional change would be required to allow this more rigorous approach to be brought forward in the proposed Bill.

My understanding from previous discussions was that the reason the Judicial Appointments Advisory Board could not prioritise or rank candidates to date was that the Constitution mandates that the Government enjoys absolute discretion, and that fettering said discretion may be a constitutional issue. That is what I have heard to date. Does Mr. Condon not feel that is an impediment to the proposed Bill?

Mr. Kevin Condon

I do not think it is. The constitutional arrangement underpinning this, whereby the Government makes the appointment by advising the President to do so, will not be affected by the proposed Bill. We have no reason to believe that the stage before that, that is, the selection and recommendation or advisory phase that the new commission will roll out, cannot be as rigorous as it needs to be without posing any difficulties for any constitutional function.

I thank Mr. Condon. I have two questions that relate to his submission. I will then move on to other members. Mr. Condon stated there was, "a recognition that the involvement of laypersons in the process should be increased". He later said, "There will be an equal number of laypersons and judges". I presume that means an equal number of laypersons and legal people. Why is that? It is an area of quite specialist expertise. Why would we want to have 50:50 involvement between non-expert and expert, if I can put it that way, in this process?

Mr. Kevin Condon

If one goes back to 1995, it was felt that the process needed to be opened up to people who brought a perspective from business and commerce. The 1995 Act sets out reasonably minimal criteria for that. Nevertheless, however, it brought the involvement of three laypeople into what was a board of ten people at the time. That board, of course, changed to 11 people when the Court of Appeal was established in 2014.

The Chairman will be aware, of course, that there was some question of having a lay majority within the 2017 Bill. The provisions of the Bill set out a wide range of criteria that Government believes laypeople can bring to the process, whether it is experience of the courts, arbitration and mediation or administration and business. I believe a wide range of perspectives are required to be captured on a board. To be clear, the board has nine members. It is actually an equality of laypersons and judges because there will be four judges and the Attorney General. There will not, therefore, be a majority of laypersons but an equal number of laypersons and judges.

It is fairly consistent, for want of a better way of putting it, with nearby jurisdictions, which have strong and positive lay involvement. They certainly tend to have more lay involvement than we have currently under the Judicial Appointments Advisory Board system.

I have a final question before I open it up to the floor. Mr. Condon mentioned the 2017 Bill, on which there was much engagement over the course of the previous Dáil. Obviously, we are a new committee and a new Dáil. It is, therefore, a new Bill and we will move forward on that basis. What were the lessons learned? What has Mr. Condon carried forward from that? Has anything been positive? What is different in this Bill to the previous one?

Mr. Kevin Condon

At a quick look, in some ways, the scheme is quite similar to the 2017 Bill but there are significant differences. Members might recall when that Bill was last in the Seanad in December 2019, 59 amendments had to be tabled to get the document right because there were quite a number of inconsistencies in it and so forth.

Clearly, the biggest difference at this point between the Bill that was drawn from this scheme and the old Bill is the composition of the commission and the change to the Chief Justice's chair. It does not have a lay majority, which was proposed the last time around. It introduces the Judicial Council as a source of nominees into the Judicial Appointments Commission. That change alone to the Chief Justice chairing means there are a network of consequential amendments in the Bill, which would probably be a bit too detailed to go into. They are there, however. A lot of change is required.

On top of that, we have been looking at a number of other issues. I believe I am free to say that since the scheme was passed, like any drafting process, a number of things were required to be fleshed out. Members will probably see some new technical amendments, for example, relating to data processing, and one or two things we were just not seeing in the scheme or that were not in the 2017 Bill. I believe that when the Bill is published, it will probably look substantially different to the 2017 Bill.

I thank both witnesses very much for those details. I will move on to the next speaker. Deputy Martin Kenny had his hand up first. Senator Ward will be up after Deputy Kenny; he may wish to focus on that. Deputy Kenny has the floor.

I thank the witnesses for their contributions. I first want to question the role of the Attorney General in all this. We are mainly trying to get to a situation whereby the Government of the day will, at least, have less influence in setting forward which people would potentially be selected to go on to the Judiciary. However, the Attorney General would very much be the Government of the day's person on the board. That, to me, reflects a problem. If we think about it, that means the Attorney General will be there from the very beginning of the process right through to being at the Cabinet meeting at the very end of the process. How appropriate is that in the context of trying to bring forward something that is supposed to change the old bad habits of the past? That is one issue we need to try to deal with. I would like to hear the views of both contributors on that issue, particularly the specific role of the Attorney General in all this.

Those who are selected by the Judicial Appointments Advisory Board at present are very much taken from a wide base of people, which is quite appropriate. I refer to the procedures it uses to select people to be considered as members of the Judiciary. I am not sure if we need to have a more succinct and direct set of procedures in place to ensure that is done in a fair and transparent way. That is really what the public is seeking.

With regard to promotions whereby people will be moving from lower courts to higher courts, etc., how can that measure of merit be put in place? Again, people would like to understand that is transparent and clear. I am not sure that is the case in the piece of legislation coming forward. I will leave it at that for the moment.

I thank Deputy Kenny. I am not sure which of the witnesses wants to take that question first.

Mr. Kevin Condon

I can attempt to address that question for the Deputy. With regard to the Attorney General, in a sense, the appropriateness is measured against what has been in place since 1995. The Attorney General has been a member of the Judicial Appointments Advisory Board since 1995. To some extent, the commission is certainly a development of the board. In that context, the Attorney General has been retained. He has been retained on the commission with no vote, however. The only members on the commission who will be making a definitive call on a person going forward for selection, if it comes to a vote, of course, will be the lay members and judicial members.

With regard to more formalised procedures, a very important part of the scheme requires the commission to bring forward an entirely new set of selection procedures and statement of skills via the procedures committee and publish them, and to consult with whoever it needs, particularly presidents of the courts, to see what the appropriate requirements will be.

One important detail on the Deputy's final point about promotions is that those procedures would allow distinctions or differentiations to be made between different types of procedures that might apply for different types of courts or different classes of business before different courts. Interview procedures, for example, will be developed and set out in these statements. Certainly, therefore, a much stronger set of procedures will be known to everybody and published.

Is there also a requirement for training in respect of all that? Does Mr. Condon feel that additional training modules should be put in place for the Judiciary, particularly when people are seeking advancement or promotion?

Mr. Kevin Condon

There is a provision in the scheme, which is intended to be in the Bill, whereby a person will be required to give a commitment to undertake training when asked to do so by the Chief Justice or president of the court. That will, therefore, be part of the process. It will be a requirement and a condition of a person's selection that he or she actually gives an undertaking to take training if requested to do so.

I thank Mr. Condon. Does that conclude Deputy Kenny's questioning for now?

Yes; that is fine for now. I thank the Chairman very much.

I thank the Deputy for those questions. Senator Ward will have the next opportunity.

I welcome both our witnesses and acknowledge the work they do to help us in our deliberations. I wish to raise a couple of issues, specifically with regard to what Mr. Herrick said about minimising Government discretion.

This is not a surprise. The ICCL has been consistent on that line. Does Mr. Herrick accept that there is a democratic requirement for an element of Government discretion? Would he acknowledge that is an important part of the judicial appointments process? Remarks have been made about bad habits of the past and things like that. There is substantial evidence to support the notion that we have an excellent Judiciary that is functional, that abides by the rules of law and that delivers fairness, on the whole. I am not saying that every judge is wonderful. As a practitioner, I can say they are not. Overall, however, we have a corpus of judges who are good, reliable and fair.

Mr. Herrick spoke about giving reasons for deviation from the recommendations of the commission. In general, I think there is an absolute basis for that but, in practice, there is a real difficulty. Ranking candidates is all very well but asking the Government to publicly explain why it has chosen one candidate over another will create substantial problems from the point of view, in particular, of the unsuccessful candidate because it results in an official declaration of what the Government sees as the inadequacy of a candidate which could be damaging to that person professionally. In the whole process of the appointment of judges, the confidentiality of applicants is paramount because many practitioners who are qualified and who would make excellent judges would never apply if they thought applications, particularly unsuccessful applications, were going to be made public because it would massively damage them within their profession and in the context of their ability to continue in their profession.

Deputy Martin Kenny referred to promotion from lower to higher courts and Mr. Condon has spoken about merit as a criterion. All of that makes sense but I wonder is that not a tremendously subjective criterion? There are many fine legal practitioners, solicitors and barristers who turn out not to be very good judges. While an element of knowledge and experience in the litigation process is extremely important, I wonder can any of our guests tell us what constitutes the definitive criteria for what makes a good judge? That is a difficult thing on which to settle. In the past, there has always been a practice not to promote judges from the District Court to the Circuit Court or from the Circuit Court to the High Court because there was a danger that it would incentivise a particular judge to behave in a certain way. If a judge is focused on promotion rather than doing the right thing or rendering the right decision, it potentially compromises that individual in his or her ability to do the job as opposed to climbing the ladder. I wonder if our guests have anything to say about that.

Mr. Liam Herrick

On the first question asked by the Senator, it is clear that the proposed approach retains an absolute discretion for the Government to make appointments to the bench without any reference to the Judicial Appointments Commission nominations. It is for the committee and the Oireachtas, ultimately, to decide whether that is constitutionally mandated or not. There is nothing in our submission that is in any way critical of the quality of the existing Judiciary; far from it. It is absolutely the case that we have had the benefit in our constitutional history of a strong, independent Judiciary that has acted and exercised its functions with great honour. That does not mean we should be complacent, however. We need to be mindful of taking this opportunity to have the most robust and strongest process possible to anticipate all the potential changes that might happen in the future. In that regard, I think there is nothing inconsistent in saying we have a strong, independent Judiciary now but we can have stronger processes in the future.

Deputy Martin Kenny raised the role of the Attorney General in his contribution and that touches on this matter. There are clear concerns about the Attorney General having any role in the process. To a large extent, the approach that is proposed by the Government addresses many of those concerns in the general appointment process by the Attorney General having a non-voting role. However, we are presented with a significant difficulty when we have a separate senior appointment process for the Chief Justice and the presidents of the superior courts. In those cases, the Attorney General not only retains a role but has a significant voting role as one of three. That is probably the greatest weakness in the proposed Bill as it is currently presented.

With regard to reasons for deviation, Senator Ward made good points about the requirement for confidentiality. It would be interesting to explore whether it is possible to balance what we are trying to achieve in terms of accountability with the confidentiality of applicants. There are two different ways in which the Government may deviate from what is recommended by the commission. One is to deviate from it in terms of the ranking of candidates which we propose. A second method of deviation is to circumvent the proposed list entirely. It is essential that there is some requirement on the Government to explain itself when it takes the latter course and possibly to work out whether it can achieve the ranking of candidates while balancing principles of confidentiality for unsuccessful candidates.

The Senator also asked about judicial training and the specific skills that are required of judges. We must look at the Judicial Council Act and the proposed judicial appointments commission Bill in tandem. The requirements in place under the Judicial Council Act in terms of ongoing training of the Judiciary will be a great resource to strengthen our Judiciary and allowing it to keep up with contemporary developments. I do not think that objective will be achieved through the Judicial Appointment Commission Bill alone, it must be considered in tandem with the Judicial Council Act. We are supportive of what is in the Judicial Council Act.

I thank our guests. Much of what I was going to say has already been covered. I agree with Deputy Martin Kenny that if the independence of the commission is so important for the Government, I find it hard to see how that sits with the inclusion of the Attorney General, who is a member of the Cabinet and has been appointed by the Government of the day, in the decision-making process.

Mr. Herrick stated in his report that the knowledge requirements are inadequate. I am glad to hear Senator Ward has experienced great judges over the years but, while most of the judges with whom I have dealt over the years were well trained, a few have been inappropriate or inadequately trained. Should a practitioner have spent a year or two in criminal law before he or she starts to run trials? Should a practitioner have similar experience in family law before he or she starts to hear family law cases? I accept the point about ongoing training but just because someone has been a qualified solicitor or barrister for ten years does not necessarily mean that he or she has any idea what is going on in, for example, the criminal courts. Does Mr. Herrick have any views on what specific training should be required? One would not go into the commercial court without a knowledge of commercial law. I heard what Mr. Condon said about a background in business and commerce but we should be exploring the possibility of appointing someone with a background in consumer protection, the Private Residential Tenancies Board, the equality commission, or a former prison governor who would have a great understanding of the people who are regularly attending before, for example, the District Court and the Circuit Court.

The last question was addressed to Mr. Herrick if he would like to respond.

Mr. Liam Herrick

With the Chairman's grace, I will refer the question about the qualifications of judges to my colleague, Ms McLoughlin-Burke.

Ms Gemma McLoughlin-Burke

In relation to-----

Is Ms McLoughlin-Burke on mute?

Ms Gemma McLoughlin-Burke

I should no longer be muted. Can the committee hear me?

There is an issue with Ms Loughlin-Burke's microphone. I might go to Mr. Condon for a reply. Ms McLoughlin-Burke might take a moment to organise her microphone.

Ms Gemma McLoughlin-Burke

Can the Chairman hear me now?

No. There is a crackle on the line. I will go to Mr. Condon for a reply. It might take a moment to organise Ms McLoughlin-Burke's link.

Mr. Kevin Condon

To take up the point------

I apologise for interrupting. Do we know where the noise is coming from? Can Ms McLoughlin-Burke mute her device? I thank her for that. The interference was coming from her end. It seems to have stopped now. She might be able to figure out what is going on while her device is muted and rejoin the meeting if she is able to sort it out. I will pass back to Mr. Condon.

Mr. Kevin Condon

I was going to say in response to the points made by Deputies Ward and Daly that Ministers have been at pains to point out that these reforms, which have been in train for some years now, are not at all a reflection on the Judiciary. They are simply a reflection of the fact the procedures we have are somewhat outdated and need to be brought up to today’s standard and best practice, as other contributors have said. That would be a clear motivation behind the reforms.

I will take this opportunity to make a point while we are waiting for Ms McLoughlin-Burke to come back in. In the ICCL's submission, to which Deputy Daly alluded, there are some interesting statistics which show that the Circuit Court and the District Court are the workhorses of the system, with the vast majority of cases going through them. If I understood the submission correctly, it states that the rules stipulated training and familiarity with procedures for judges of the superior courts. That recommendation or requirement was not there for, dare I say it, the lower courts. Perhaps it should be, given the volume of cases coming through.

Mr. Liam Herrick

May I address that?

Please do.

Mr. Liam Herrick

To be fair, what is proposed is that there would be an additional requirement on candidates for the superior courts to have familiarity with the practices and procedures of the superior courts, which is not proposed to apply to candidates for the District and Circuit Courts. Whereas the intention is that it is to recognise some specific attributes that might apply for superior courts, the risk is it might convey the sense there is a lower level of qualification and expertise required for the District and Circuit Courts. There is an argument to be made that procedural expertise and experience may be at least as important in the District and Circuit Courts in light of the large volume of work with which they deal and the pivotal role they play in the overall process. That is one of the recommendations we are bringing forward for consideration.

That point is very well made, both in the ICCL's submission and in the contributions today. I thank Mr. Herrick for that response.

I will move on to the next speaker. Apologies to Ms McLoughlin-Burke. Her microphone is playing havoc. This happens to all of us when we are on these sessions. It is a case of the perils of the demo. These things happen. Unfortunately, I will not be able to bring Ms Mcloughlin-Burke in because she is inaudible. She might stay with us and if in the meantime she manages to figure out what is going on, she can let me know and I will bring her in later on. Our next speaker is Senator McDowell.

I thank our guests for their contributions, which I found very interesting. I have one specific question to put to Mr. Condon regarding the scheme of the proposed Bill, which has been worrying me since the last occasions we discussed the general scheme. It concerns head 9, which deals with the composition of the commission and which effectively states that there will be nine members of the commission. Subhead (1)(b) of head 9 contains the phrase "a Court President being one of the President of the Court of Appeal, the President of the High Court, the President of the Circuit court or the President of the District Court, to be determined in accordance with subhead (2)". Subhead (2) states "The member referred to in subhead (1)(b) shall, for the purpose of the determination of a recommendation by the Commission in respect of a judicial vacancy or vacancies in a court, [be] the President of that Court." What we have there is a rotating membership to be shared among the presidents of courts. One problem with this is that the commission has business other than simply considering candidates. It has to make annual reports, lay down procedures, set out criteria of this various kinds and adopt statements and the like. I have a major problem with saying that, for instance, the position will be occupied on a kind of rotating basis depending on the recommendatory business that is going on when there is other day-to-day business which has to be carried out by the commission, such as preparing reports for Government or Oireachtas committees, handling its relationship with the chief executive and making decisions on finance, recruitment, etc.. It is not clear how that particular head works if, for example, we cannot say at any one point that Mr. Justice Michael McDowell either is or is not a member of the commission for the purposes of all those ancillary matters. That is a point I wanted to draw to Mr. Condon's attention. More work needs to be done to remedy the position in this regard. I ask Mr. Condon to come back to me on that point.

I echo what Senator Ward said. When in government, one of the aspects of appointing members of the Judiciary is that it is not always based simply on the individual merits of an individual. For example, one might decide that the Supreme Court needs to be made more liberal or more conservative, more pro-European or less pro-European, more pro-personal injuries awards being high or pro-personal injuries awards being low or whatever. In the context of issues on that nature, a diversity of approach and philosophy is something which a properly appointing Government may consider to be a hugely important issue. If there are three or four people in a row who all have the same view and the Government is of the view that the court is beginning to go in a particular direction and it is not happy with that, it is its democratic function to correct the position by making its own decisions. We have a simplistic view of merit that one person is better than another on the basis of merit, but we also must have not simply the crude rationale of, say, having people who are representative of the community demographically or whatever else. In addition, the Government has a very clear duty to ensure that the Supreme Court has a philosophical balance to it which the Government would want to ensure is maintained.

Mr. Condon and Mr. Herrick might grapple with another point I wish to raise. The Attorney General is a constitutional officer. He or she is the adviser to the Government on all matters of law.

It is quite possible for an Attorney General to look at the slate of candidates putting themselves forward for selection and come to the view that a judge-dominated commission is knocking on the head some kinds of people that maybe should have a look in. One of the problems with the 2017 legislation was there was a bit of intellectual confusion as to whether the Government should know who was applying for jobs. There was a huge problem with this issue. The then Minister, Deputy Flanagan, did his best to rescue, from the extremes of Shane Ross's approach to the matter, some degree of common sense that the Government should know, by one means or another, what kind of people are being rejected. If liberals are being rejected by the Judiciary on a consistent basis, somebody should be in a position to tell the Government that it seems to be replicating itself and that "judgeitis" has descended on the process. Somebody should be in a position to report to the Government what kind of people are failing to get onto the shortlist.

The Attorney General has an important role of being the canary in the coalmine and being in a position to tell the Government, for example, that there are five really good solicitors or barristers who are constantly being turned down or that others are being preferred, and that he or she is worried about it. The only way the Cabinet will be made aware of this is if the Attorney General has some sight of what is happening at the commission. There is some merit to the Attorney General having this role and I throw that out there for consideration.

There is another point that arose in the context of the 2017 legislation. Very frequently, when it is decided to appoint the President of the Court of Appeal to the Supreme Court or something of that nature, there are consequential knock-on vacancies in the Court of Appeal and the High Court. One of the problems pointed out to the Minister at the time, Deputy Flanagan, was that there was a very clunky process whereby where a vacancy arises in this way, the entire process has to be started again to go hunting for somebody to fill that vacancy. What happened when I was around was that three such appointments were made on the same day in a promotional appointment chain. This is no longer possible because we have to start again and go back to each layer of the cake and conduct interviews for vacancies that arise. There has to be some flexibility when a vacancy is created. I really believe there should be a standing invitation to judges to state whether they want to be, for example, on the Court of Appeal. Those that want to be should be considered as candidates semi-permanently and, likewise, other solicitors and barristers.

I am unhappy with the idea that the legal profession, which often sees an awful lot more of their colleagues than judges do and see how they really think and hear what they really say over cups of coffee, or over a drink for that matter, and how their brains actually function, very frequently are in a very good position to advise whatever commission we have that Joe or Josephine Bloggs is a bit ropey. It is a mistake, therefore, to knock out some input from the people who see these colleagues on a daily basis. The people who have been receiving rude letters from their solicitor or barrister colleagues for 20 years can say that a person is a bit of a header. A judge might not realise this but it is a very valuable input. Having served on the Judicial Appointments Advisory Board, I know that the input from members of the Law Society and the Bar Council was sometimes very important in sounding a warning bell about somebody who looked brilliant on paper to the effect that there was a problem and that the individual in question was not as good as he or she sounded or looked. There are discretionary issues such as this.

I throw these ideas out for consideration. I am particularly worried about head 9. I cannot understand how the council can have only nine members and that four of them will be rotating all the time. If the council is supposed to have a continuous corporate existence and is to make decisions about annual reports, hiring extra staff, accepting the recommendations of the chief executive and all the rest of it, who will be a member on a day-to-day basis of the commission?

I thank Senator McDowell for his comments and his insights from his various roles. Some of the questions were addressed to Mr. Condon and he might take them first.

Mr. Kevin Condon

To come back to the Senator on his main point regarding head 9, his interpretation of what is there is 100% accurate. I can say that the very problem on which he has put his finger has been identified in the drafting process.

I am glad to hear it.

Mr. Kevin Condon

We are looking at a probable process whereby a particular court president will be a fixed member and when other presidents are required at other times, they can come into the process. For the day-to-day business of the commission, there will be a fixed member on the commission. I thank the Senator for raising the issue. I believe we will be able to get over the problem in head 9(1)(b).

Perhaps Mr. Herrick would like to respond to my point on the Attorney General and the other points I have made.

Mr. Liam Herrick

I thank the Senator and the Chair. The Senator will note from our submission that we do not recommend the Attorney General be excluded from participation in the commission. We do think the provision that he or she be a non-voting member addresses some of the concerns. There is a separate question, of course, about the potential appointment of an Attorney General as a member of the Judiciary and whether there should be an exclusion, which is a separate question.

The Senator set out very clearly a political and philosophical perspective on the potential role of the Government in the process. He spoke about the concepts of correcting what might be the philosophical or ideological balance on the court. I understand this point of view but we could easily counter it. They are subjective concepts that can also be interpreted as an excess of political input in the process. Overall, we clearly recommend a curtailment of discretion but a retention of some discretion. With regard to how this balance is achieved, broadly speaking the approach taken strikes the balance quite well, when it is combined with accountability on the part of the Government once it has made decisions and has responsibility for the commission and how it exercises its functions.

The Senator made the point that it is essential the Government has sight of all persons who apply. We understand the proposed scheme retains the provision that the Government will have sight of all applicants, which would be an important safeguard against what the Senator has suggested, that the commission tends to go in a particular direction.

On the question of whether the Government might have to start again, a chain is a very important practical concern. Our understanding, and Mr. Condon might correct me on this, is that the scheme allows for the Government to anticipate a vacancy arising so it can act before the vacancy manifests, which I imagine would happen, for example, when a judge is going to reach retirement age or where the term of office of a senior officeholder expires.

The scenario outlined by the Senator might not be quite as grim as he depicted. It might be possible for the Government to act in advance and put the appointment chains in motion before the vacancy would arise.

The point about the legal profession is well made. It might be possible to address that in how the criteria for lay members might be set by the Public Appointments Service, for example, and whether there would be requirements for legal professional expertise within those criteria. We note the comments made by the Bar Council and the Law Society in that regard but, overall, we think the balance is quite well struck as it is.

When we speak of diversity it relates to the profound problem of a lack of representativeness in the legal professions. This was manifested as recently as yesterday with appointments to the inner Bar, for example, where, in the solicitors' profession, five women were appointed as opposed to nine men, and, on the Bar side, it was five women as opposed to 20 men. There are problems with diversity even when it comes to the question of gender, not to mention, as matters stand, other questions of diversity. It is appropriate that this proposed Bill would be used to try to address the issue, but it will not be possible to do so without also looking deeper into the processes and structures within the professions.

It is lovely to see Mr. Herrick and I thank him for coming in. On his final point, gender imbalance on the courts has been substantially remedied by political intervention since 2011. That is notwithstanding what he said about the professions - a point well made, particularly when we look at the proportion of women becoming senior counsels every year. However, there was political intervention to rebalance that in the courts. The big concern with a judicially dominated structure, such as the one we are talking about, is the threat of judicial self-selection. At our previous meeting, we talked about the great Australian judge, Michael Kirby, who was the first openly gay judge and who said he would never have been selected by his peers at that time. That was such an important statement and intervention.

I have six questions. I am happy to break them up and come back in, whatever is best. The first and most important, particularly for the committee and the record, is the question of independence and best practice. Mr. Herrick, in his submission, states that Ireland is adopting something that is less than best practice. The inference is that it is compromising judicial independence in some way. Can Mr. Herrick talk me through what the logic of that is before I ask my question?

Mr. Liam Herrick

Is that in terms of best practice?

Yes. Mr. Herrick states at the beginning of his full submission: "At present, the judicial appointments system in Ireland does not align with best practice as outlined by international instruments on the independence of the judiciary." That is a big statement from the ICCL, which, as Mr. Herrick and I have discussed several times, I regard as an important institution for this State. That is a really crucial statement made by him and his organisation about the functionality of the courts and how people view that functionality. Can Mr. Herrick talk me through that before I ask my question?

Mr. Liam Herrick

As I said the outset, in preparing the submission we made to the committee in March, we looked to a number of international standards. These were specifically: UN basic principles on the independence of the Judiciary; the Council of Europe recommendation on the independence, efficiency and the role of judges, the European Charter on the statute for judges; and the principles on the independence and accountability of judges set out by the International Commission of Jurists, a well-regarded international non-governmental organisation. We drew from those, so when we talk about best practice we are talking about existing standards. To give examples, the UN basic principles refer to standards applying to the promotion and careers of judges, as well as their appointments being better dealt with by a selection body, at least half the membership of which should comprise members of the judiciary. There is also reference in some of the standards to a preference for the judicial members of such a body to be elected by their peers. That is where we are drawing it from. As the Deputy knows, any recommendations we bring before the committee on any matter will be grounded on, and derived from, international standards.

Okay. I want to go back to Mr. Herrick on some of that. Those UN principles date from 1985 and 1999, but what Mr. Herrick does not include is a much more significant document, which is the Mount Scopus International Standards of Judicial Independence. All the leading political scientists and legal theorists came together to draw up those standards, which specifically acknowledge the role of governments in circumstances where there are judicial selection boards. I can send that to Mr. Herrick. It is so important. For example, the standards state: "The recent trend of establishing judicial selection boards or commissions ... should be viewed favourably [of course we have that], provided that a proper balance is maintained in the composition of such boards [by] branches of [the] government".

The UN standards, and all the others to which Mr. Herrick referred, particularly those of the Council of Europe, which deals with so many European career judge systems, are entirely different from, and not comparable with, the common law model. The frame of reference is very different, especially when one looks at the judicial selection systems in Latin America and Russia, all of which are covered by UN standards. These are very different democracies that have very different standards, completely different career models for judges and a very different role for politics. In many cases, they are absent a constitutional democracy. They must be set carefully against a real comparative analysis, which, of course, relates to advanced common law democracies and constitutional democracies. How are we doing in that regard?

Mr. Liam Herrick

I note the source to which the Deputy referred. I understand that the body in question is without any legal status. We take as our first standard international bodies of which Ireland is a member, such as the United Nations, the Council of Europe and the European Union. The Deputy will be aware that, obviously, United Nations standards will apply to both civil and common law jurisdictions. The Council of Europe standards also apply to common law and civil law systems. We are very happy to rely on those as the primary source of standards. Of course, we need to learn from best practice as well.

Yes. How does Mr. Herrick see Ireland's judicial independence when set against other common law countries? Does he think there are other analyses and tests of judicial independence? I am really concerned that the narrative will become one of Ireland's Judiciary being somehow compromised because of its selection system.

Mr. Liam Herrick

No.

I am sorry. The Deputy said she had six questions. She will certainly get to ask them and I applaud her at the outset. If nothing else, she has shown us that she is our in-house expert. I ask her to direct her questions through the Chair. I want to make sure that we keep a structure on our engagement. Certainly, the Deputy can come back in to put her questions.

I apologise to the Chair. My questions are as follows, if that is helpful. Leaving the issue of standards aside, there is a question of independence regarding how interviews and promotions are conducted. There is a question about the balance of the independence of the legal profession as well. For example, and this is something that can be worked out in the eventual Bill, who is it thought should be interviewing prospective judges? Will it be sitting judges of the courts in which they practice? Who will it be and how would one go through a process in order to maintain, as my colleague Senator Ward noted, the independence of judges, against a selection process where there may very well be personality clashes and in the context of which a whole range of other things may arise? How do we protect the independence of both the legal profession and judicial members in those circumstances?

The ranking situation is quite interesting because two totally different types of candidate can come through, with different practice backgrounds and very different skills. If it was a question of ranking me against the Chair, for example, it is obvious that we are completely different people and are not necessarily comparable. How does Mr. Herrick conceive of ranking people with very different skill sets and experiences? Senator McDowell alluded to trying to achieve an overall balance on the court. I will leave it at that because I do not want to take up too much time. I will come back in if there is more time.

The Deputy can come back in. She asked two questions so she can certainly ask some more. Perhaps we will take those first. The questions were primarily directed to Mr. Herrick but Mr. Condon may have something to say as well.

Mr. Liam Herrick

I thank the Deputy for her questions. As we previously stated on more than one occasion, the ICCL is very clear that we have immense regard for the quality of the judges who sit on our courts now and for those who have sat on them over the years. We do not think there is any incompatibility between believing that we get good results, by and large, from the current system but also wanting to improve and strengthen the system for the future.

On the specific question about how the judicial membership might be composed and how the questions and so on would be conducted, Senator McDowell has already asked questions about how the body corporate would be constituted. I understand from Mr. Condon that it will be addressed in the Bill. Our suggestion is that all the judicial members nominated by the Judicial Council and those acting on behalf of the appropriate court would be elected by all members of the Judiciary. The thinking behind that is it would strengthen the authority and legitimacy of the idea of these people acting on behalf of all judges. It would also avoid a potential danger - not one that we believe is manifest - of having a clique of the senior members of the Judiciary that would dominate the judicial input and that would not represent the Judiciary as a whole. That is our suggestion on that point.

On the question of ranking, we are talking about a selection process. No matter how it is constructed, it will involve choices and preferences. There are two elements to what we suggest. The first is ranking, which strengthens independence, and the other is reducing the number of names that goes to the Government. The two should be seen as going hand in hand. Both would make a contribution towards strengthening, and of course either could be done separately from the other. Both would have the effect of strengthening the independence of the process.

Yes, although I want to allow Mr. Condon in again. Is this a follow-up question?

Yes. My point is that there may be three or five candidates and they can be completely different and possess different skill sets. A court needs lots of different types of things at any given time and there are gaps in experience at different times. If these are being ranked and putting an onus on the Government to be accountable publicly in some way, and we get to how that discretion can be used, it really tightens the flexibility in appointing people. For example, we might need a criminal practitioner but have corporate practitioners in first and second place. A third candidate might have to be appointed for completely obvious reasons but how would that work? As Senator Ward asked, what would be the standing of that judge?

Mr. Liam Herrick

The Deputy is making very important points. We do not believe that the approach proposed in the general scheme precludes the possibility of procedures being set by the procedures committee. The criteria to be established under the proposed Bill would allow the commission to take into account some of those overall considerations. For example, we are mandating that it would take into account considerations of diversity, which, of course, cannot be considered just in terms of isolation of individual appointments and must be done in the round. Similarly, we would have thought it possible under the current proposals for the commission to also take into account wider questions of balance as well.

It is probably difficult to make an overall assessment of the proposed approach until we see what procedures are ultimately agreed by the procedures committee. That is our understanding but I defer to Mr. Condon, who clearly has a deeper insight into the thinking behind the proposed approach.

Mr. Kevin Condon

There are a number of points on the table but I will pick two or three of them. Mr. Herrick has mentioned the international conventions, which are very important. As far possible, we have attempted to have regard to international conventions and best practice. The two that loom the largest are the Group of States against Corruption, GRECO, recommendations and the European Commission's view of our legislation. It is important to say this scheme and the new Bill probably move much closer to what GRECO and the European Commission would like to see in one very important area, which is the composition of the commission itself. That is important.

Mr. Herrick made a point about the election of judges. I am not 100% sure about how that would be developed except that some of the nuts and bolts of the provisions are not absolutely finalised. Looking at two Judicial Council nominees, there is a process within the council on how those members would be put forward. That may involve some element of what Mr. Herrick is referring to.

Deputy Carroll MacNeill asked who will conduct interviews. These are significant questions in how the eventual Bill will pan out. There is provision for criteria and statements of qualification and procedures. Some of the elements that those statements and approaches must have regard to include independence of the Judiciary. There are some benchmarks around the concept of judicial independence where regard would be had when those statements on procedures and skills are produced. I guess it will be members of the judicial commission who will conduct those interviews. It seems a logical conclusion from the provisions as they have been developed to date. We may have to wait to see what the commission produces. It is required that after 12 months it should produce detailed documentation as to how the procedures are to be managed.

Deputy Carroll MacNeill made the interesting observation that while international comparisons are very useful and can be very informative, they have to be comparable. There was a point about common law jurisdictions and advanced common law jurisdictions and these may not equate directly to other memberships of the various bodies. It was an interesting observation.

I have just one further question. I can give a practical example of the interview point. There may be a very conservative Judiciary and a particularly difficult President of the High Court, for example. Mr. Herrick may have been briefing counsel to try to advance civil liberties and the elements are constantly bashing up against each other. The best senior counsels may be trying to advance civil liberties but there might be a clash between a person and the President of the High Court, who may then interview that person for a position on the High Court. We must design systems for the worst in people and not the best. We must try to protect the system against a nefarious influence, such as in that hypothetical example.

There was a point made on the retention of discretion. The Government has absolute discretion from a constitutional point of view, and that is a necessary position for the read across under Article 13.9 of the Constitution about advising the President generally. The practice with the Judicial Appointments Advisory Board has meant that there is absolute constitutional discretion but there is also the concept of political discretion. As Mr. Herrick mentioned, this is the established convention, as it were. The established convention is that the Government always - or with only one exception - has appointed judges from the list of recommended candidates from the Judicial Appointments Advisory Board. That exception was Mr. Justice Frank Clarke, who became Chief Justice. Where it was not done, it had to be published in Iris Oifgiúil. He is the only exception I am aware of. There is a political convention as well as one relating to the overall constitutional point.

What is the discretion within that, given that this is already the case and the Government has never deviated from it? If the point is that the Government is retaining sufficient discretion, how is that moving at all? Does the witness accept that this has been the essential political convention for the complete period of the Judicial Appointments Advisory Board?

Mr. Liam Herrick

With the first point the Deputy speaks about guarding against the worst possible scenario in a judicial-dominated system. One might equally point to the worst possible scenario in a politically dominated system, where an excellent lawyer who has been particularly critical of the State or represented persons that a particular Government might have a particular distaste for. That is at least, I suggest, as great a danger as the scenario the Deputy outlined.

Currently, we have a system that is largely lacking in transparency and we are talking about replacing it with a model which will have checks and balances because there will be multiple actors and constituencies represented on the primary decision-making body. There will be accountability, in the model we propose at least, whereby there will be reasons given.

On the second question, to say that recent Governments have abided by a convention may very well be true but that convention has been a system whereby the Judicial Appointments Advisory Board gives to Government a very long list of potential names for each particular post. That still affords the Government very broad discretion. The Government has abided by the convention but the convention has very broad discretion built into it. This leaves open the risk of either political appointments or the perception of political appointments. The latter will be restricted, curtailed and, we believe, improved by what is proposed in the general scheme and on the basis of the additional recommendations which we make.

Does Mr. Condon want to add to that?

Mr. Kevin Condon

Briefly, the information the Deputy had is not information that a civil servant would necessarily have. It is clearly a matter of Cabinet privilege and confidentiality as to what recommendations it goes with or does not go with. I have listened carefully to Ministers in recent years and all of them have indicated that the convention is that the short list, the long list or whatever is attended to when the appointment is made. I am certainly aware of that. I think it is a good point.

I thank Mr. Condon for that.

Mr. Liam Herrick

If I may, I would like to add a further point, which I should have made earlier.

Yes. Go ahead.

Mr. Liam Herrick

In reflecting back on recent practice, that only refers to where there were nominations through the Judicial Appointments Advisory Board process and the Government followed that. The status quo is that judicial promotions, namely, promotions from among the ranks of sitting judges, do not go through that process. The Government has been making most of the senior judicial appointments outside of any conventional process of any type.

If I may clarify a point made by Mr. Herrick, it was a judicially dominated body that changed the practice to making that list very long but, fortunately, that was changed back in 2014. I have been criticising the judicial appointments selection process for nearly 20 years and have argued for a range of different reforms, but I have never criticised the independence of the Judiciary. I have argued that a judge-led system has been incapable of formalising the process in the way in respect of which I have argued regarding accountability, transparency and professionalism. We are on the same page in the context of many aspects of this but I had to push Mr. Herrick on the independence point because it is very important in light of the ICCL's standing and the standing of this committee.

Very good. I thank the Deputy for that point, which was well made.

We will have a second round of questions if, that is, members have any other questions. We have already had a good and comprehensive engagement. There are 25 minutes remaining. We will have to wrap up then but we may not require that time. I will begin the second round of the questions. There will be some latitude because we have covered many points. We will not stray too far from the agenda but we can touch on wider topics. My question is for both witnesses. I am interested in hearing their responses.

The general scheme relates to judicial appointments and how people get on the Bench. We have had some discussion on how people will move from a lower Bench to a higher Bench, as it were. Aside from the appointment process, I do not think judicial regulation, conduct, management or sanction, if appropriate, come within the scope of the proposed Bill, but I am not sure whether that exists, what format it takes or what process is in place. There are two scenarios where that can unfold. One is what has been documented considerably certainly last year but also occasionally in the past where there has been what was considered to be judicial conduct off the Bench which was considered at times to be not appropriate or the subject of public comment, which certainly did not help anyone's cause. There has been significant comment on that. I hesitate to use the term "judicial misconduct" but there can be scenarios of problematic conduct by individuals on the Bench. I do not mean decisions being made which a Government, a politician or even the public may agree or disagree with. I mean standards of behaviour which, in other contexts, might be seen as workplace bullying. It is very much the exception rather than the rule because the vast majority of academics, all the reports and even practitioners would say that they all perform impeccably. Such issues can arise, however. There are behaviours off the Bench which can be problematic but there are also such behaviours on the Bench. I do not mean in terms of which side a particular judge comes down on but more how they execute that function. It may be the case in any role when one is elevated at a certain point and is not answerable to anyone that bad habits or certain modes of behaviour can creep in which go unchecked for long periods and, in an even worse scenario, be exacerbated. I am not sure whether there is anything in place to temper that. I do not know, for example, whether there is a complaints process or any mode of regulation or mitigation. If not, should there be and what might that look like? Mr. Herrick might respond first and then Mr. Condon.

Mr. Liam Herrick

The matters to which the Chairman refers are dealt with now by the Judicial Council and its conduct committee. The council is in the very early stages of establishing its procedures. The ICCL is engaged with National University of Ireland Galway and the University of Limerick on some initial research and working hopefully with the Judicial Council regarding the development of its procedures. We are greatly supportive of the approach set out in the Judicial Council Act and of having the Judicial Council taking on this function, which will greatly improve things in the context of the matters to which the Chairman referred.

I thank Mr. Herrick for that respond. What does Mr. Condon say to that? Does he consider that regulation is in place or needs to be in place and what mitigation exists in respect of behaviour, both on and off the Bench, that may not be acceptable?

Mr. Kevin Condon

To briefly follow on from what Mr. Herrick said, he is right. Since the introduction of the Judicial Appointments Commission Bill 2017, the Judicial Council has been established. I cannot brief today on the activities of the Judicial Council. In terms of the general scheme, the important context is, clearly, that there are basic eligibility requirements around probity and so on which would be sought by the commission. In drafting the Bill itself, we are looking at there being a link between the commission and the council. In other words, how will the commission whether there is an issue? It can go and ask the council. We are considering one or two measures like that which would help in this regard.

Very good. Can I clarify whether the Judicial Council covers all courts or only the superior courts?

Mr. Kevin Condon

It covers all courts.

Very good. I thank Mr. Condon.

I am not sure if any of the members have raised their hands. We can have another round of questions if anybody wishes to come back in. Is anyone offering?

We have covered the topic selected for today. I thank everybody. Some members have had to leave to attend functions and commitments. Over the course of the afternoon we have had a very strong engagement. I thank the witnesses. Ms McLoughlin-Burke did not have an opportunity to contribute but I am sure she has contributed in a significant way. I know she contributed to the submission because I read it and it has her name all over it. Her inputs are clear. Technology lets us down at the best of times. I thank Mr. Herrick for his contribution. I also thank Mr. Condon’s for his contribution on behalf of the Department. They were very valuable contributions. I thank my colleagues on the committee, as always, for what has been a significant and robust engagement. We are all the better for it. That concludes our engagement with the witnesses on this topic. I propose that we publish all the opening statements on the committee’s website. Is that agreed? Agreed. On behalf of the committee, I thank the witnesses again. I also thank our staff and secretariat for their preparation work and the efficient running of the meeting.

Is there any other business? There is a brief opportunity to raise other business. There does not appear to be any other business. That concludes our engagement.

The joint committee adjourned at 5.10 p.m. until 3.30 p.m. on Tuesday, 22 June 2021.