I welcome the Minister and her officials to the House. I do not envisage this Bill taking as long as the previous Bill on the matter. The Minister has ten minutes to make her introduction.
Judicial Appointments Commission Bill 2022: Second Stage
Question proposed: "That the Bill be now read a Second Time."
I may ask for a little more time but I will go through things as quickly as I can. I am pleased to be in the House today to present the Judicial Appointments Commission Bill 2022, which provides for fundamental reform of the judicial appointments process.
We have a strong record of judicial excellence and independence. We are well served by the Judiciary and it is important to acknowledge this. It is also important that we review our legislation to ensure that it continues to be fit for purpose. The Courts and Court Officers Act 1995, introducing the Judicial Appointments Advisory Board, JAAB, was a significant reform. In line with a commitment in the programme for Government, we are now proposing to establish a new judicial appointments commission. The enactment of this legislation will enable the continued appointment of excellent judges, who are a cornerstone of a strong, independent Judiciary.
The Bill will allow for the creation of a new commission to replace the JAAB and it will recommend persons for appointment as judges by the President on the advice of the Government under the Constitution. It will also recommend persons for nomination by the Government to international courts outside the State. The Bill provides for a nine-person commission with a wide remit to select and recommend persons for appointment, to develop new modern processes for selection and to publish the requirements for judicial positions. The Bill introduces a new recommendation and appointments process and ensures that the process of selection is conducted in a modern, open and transparent way by an independent commission. The Bill will underpin the principles of meritocracy and independence. It provides for a merit-based system of selection and that the commission will be independent.
An independent Judiciary and the efficient and effective administration of justice are both fundamental elements of the rule of law. This independence is important in ensuring public confidence in the courts to uphold the law. It brings social and economic benefits and allows people to be assured that when their rights are infringed or when the duties of other parties need to be enforced, the appropriate response will be taken in our courts. The Bill is designed to meet both our own constitutional standards and the standards set by the Court of Justice of the European Union regarding independence and the rule of law in judicial appointments, as well as recommendations of the Council of Europe’s Committee of Ministers.
Perhaps the most important aspect of the reforms is that the new commission will become the single focus and means for the selection and recommendation of persons for appointment to judicial office. It will bring together the disparate existing arrangements, taking over the current mandate of JAAB, selecting serving judges who apply for higher office, which is outside JAAB’s remit, and incorporating the existing roles of the Ministers for Justice and for Foreign Affairs in selecting persons for nomination to courts outside the State. What this means is that the principles that are applied to selecting and recommending persons for judicial appointment under this Bill, such as transparency and the open application process, are applied in all cases.
This legislation provides for a single process for the appointment or nomination by the Government to judicial office. No other process will operate other than what is proposed under the Bill. All promotional appointments to any judicial office, including as president of a court or as Chief Justice, or to external courts such as the Court of Justice, will come under the remit of the new commission. The focus is also on nominations to the Court of Justice, General Court, European Court of Human Rights and International Criminal Court and I wanted to incorporate these judicial positions in the statutory scheme and commission mandate. The Bill will therefore allow for better consistency between domestic and international judicial appointments processes.
The JAAB template and remit under the Courts and Court Officers Act will change markedly. An application process with clear qualification and eligibility criteria, testing and interview procedures, requirements relating to training and a restricted list of three recommendations to Government will apply. The Bill provides that a person cannot be appointed by the Government without a recommendation by the commission, and nor can a person be nominated for appointment or election to specified international courts without being recommended by the commission. The Bill will ensure that the system is fit for purpose. We should rightly aim to put in place a world-leading model that has the objectives of serving the public and of further supporting an efficient, fair and effective justice system in which the public has confidence. I am confident the commission will achieve this goal through the selection of candidates for judicial office through fair and open competition from the widest range of possible candidates.
The programme for Government commitment to bring forward this reform was clear. The new commission is to be chaired by the Chief Justice. The Chief Justice has chaired the JAAB since its inception some 25 years ago. I thank the Chief Justice, his predecessors and all of the JAAB members for their commitment over that period. The new commission is also to have an equivalence of judicial and lay members, which I am satisfied is the best arrangement, taking into account international standards and best practice in other jurisdictions. Lay members will be appointed through open competition, with selections to be made by the Public Appointments Service, and they will bring a wide range of expertise and knowledge into the selection process. The commission will have no members of the legislative branch or the executive branch of government in its voting membership.
Part 1 of the Bill deals with interpretations, including some key definitions and other standard introductory matters. Part 2 provides for a new judicial appointments commission, including arrangements for its establishment. Section 9 provides for the membership of the commission, comprising the Chief Justice as chairperson and four judicial members, two of whom will be nominated by the Judicial Council, as well as four lay members appointed by the Minister. The Attorney General is a member in a non-voting capacity. The Attorney General is a constitutional officeholder who has an important role in upholding the independence of the Judiciary. The Courts and Court Officers Act 1995 provided for three lay members out of a total membership of ten and later three out of 11 when the President of the Court of Appeal was added. I believe the enhanced outside expertise that can be provided through lay involvement will be an important addition to the commission. Lay members will bring knowledge and experience of the courts, the justice system, business, human rights and corporate governance. I also believe court presidents, as required, should be members when the relevant recommendations are being made. While the President of the Court of Appeal is a permanent member, when, for example, recommendations for appointment to the High Court are in question, it will be the President of the High Court who will become a member of the commission instead. That will be the case for the other courts as well.
Section 12 will provide for the nomination of two judicial members by the Judicial Council. The Bill provides for one male judge 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 Court or District Court. Of the two judges, one shall also have been a practising barrister and one a practising solicitor at the time of their appointment as judges. I am confident that this latter aspect of the section 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.
On composition and gender balance, other than ex-officio members, I have provided for a male and female nominee of the Judicial Council. 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 women and men, as well as reflecting the diversity of the population as a whole.
Section 10 of the Bill provides for the two functions of the commission.
The first is the selection and recommendation to the Minister for Justice of persons for appointment. For the international courts, recommendations concerning nominations to the Court of Justice and the General Court will be made to the Minister for Justice and nominations of persons for election to the European Court of Human Rights and the International Criminal Court will be made to the Minister for Foreign Affairs. The second function concerns the matter to be dealt with under Part 5 on the preparation and publication of a judicial selection statement, which supports the function of making recommendations.
A number of sections can be highlighted. Section 17 provides that commission meetings or meetings of a committee may be held remotely, which is an important facility for the body to have considering what we have just come out of. Sections 22 and 23 are important accountability provisions relating to, in the first case, the director giving account to the Committee of Public Accounts on the commission’s accounts and use of resources and, in the second case, the director being accountable to other committees of the Oireachtas for the general administration of the commission.
I want to ensure the commission has a particular obligation to set out its strategy for the achievement of the diversity objective set out in section 39. In 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. 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, which will include removing barriers to entering the legal profession, increasing diversity and introducing independent oversight of professional legal education for the first time. Diversity in this context is in some respects a more complex and wider reaching issue than the commission can directly affect. However, I anticipate that in line with these objectives, the commission will work with partners to break down barriers, increase the diversity of the eligible pool of applicants and encourage and support applications for appointment that would see progress in increasing diversity. That is work in which the Law Society of Ireland and the Bar Council are supporting me.
Part 3 provides for the establishment of a Judicial Appointments Commission Office to be under the management and control of the commission and subject to the direction of the director of the office, to be appointed by the Minister under section 36.
Part 4 provides for the recommendation process and commences with section 39, which provides that the commission’s recommendations will be based on merit. Subject to that, three key objectives are prescribed of which the commission shall take account to the extent feasible and practicable: that membership of each court should comprise equal numbers of male and female members, reflect the diversity of the population and include a sufficient number of judges with proficiency in the Irish language to meet the needs of court users. The Bill will give the task of selecting and recommending persons for roles in the Court of Justice, the General Court of the EU, the European Court of Human Rights and the International Criminal Court to the new commission.
Section 40 specifies the qualification requirements for appointment and nomination and now includes some technical changes made by ministerial amendment in the Dáil to refer, in the case of nominations to the Court of Justice and the General Court, to the requirements of the Treaty on the Functioning of the European Union.
Under Chapter 2 of Part 4, the commission shall issue invitations by advertisement for the making of applications for appointment or nomination to judicial office, and a request to do so may be made by the Minister for Justice or the Minister for Foreign Affairs in respect of the European Court of Human Rights and the International Criminal Court.
Section 43 makes clear that any person wishing to be considered for appointment or nomination must apply to the commission, and such application shall be made only in response to an invitation issued by the commission. Section 45 provides for recusals from the commission where a judicial member or the Attorney General has made an application to the commission, and for the replacement on a temporary basis of a judicial member who has so applied. Section 46 provides that the commission shall not recommend a person for appointment or nomination if he or she is not eligible, among other conditions, and unless the commission has interviewed the applicant. Key elements of the process will be a requirement for interviews to be carried out and making training and continuous professional development mandatory for those seeking to be appointed to judicial office in the State.
Section 47 deals with recommendations for appointment to judicial offices in the State and provides that the commission shall recommend three persons for a vacancy and an additional two persons for each additional vacancy. For two it would be five, and for three it would be seven. The commission shall recommend less than the prescribed number where it cannot recommend that number, having regard to the suitability of applicants or the number of applicants. The commission shall inform the Minister if it cannot recommend any person, and provide reasons in that matter. All names of applicants shall be forwarded to the Minister.
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 other information about the process, including an understanding of the diversity of persons making applications. Similar arrangements apply under section 48 in respect of recommendations by the commission for nomination to judicial office outside the State.
Under the 1995 Act, a minimum of seven recommendations are made, not including expressions of interest from serving judges. Obviously the numbers can be quite high. I propose in this Bill to limit significantly the discretion the Government of the day has in relation to selection and appointment of judges.
Section 51 provides that only recommended persons shall be considered for appointment by the Government, and this applies also under section 52 in respect of nominations outside the State. For a given appointment only three names will be submitted to Government, assuming the commission can make three recommendations, and Government choice is confined to those three persons. The 1995 Act requires the Government to first consider recommendations made by JAAB. It is an important change, then, that Government may only appoint recommended persons.
Section 54 provides for notice of appointment to judicial office in the State to be published in Iris Oifigiúil, while section 55 provides that the Minister shall provide an annual statement to the Houses of the Oireachtas concerning all appointments to judicial office in the State and elections outside the State where the Minister or the Minister for Foreign Affairs made the relevant nominations.
Part 5 provides for the preparation and publication by the commission of a judicial selection statement and makes detailed provisions in respect of consultation in the matter. The selection statement comprises a statement of requisite knowledge, skills and attributes under section 58 and a statement of selection procedures under section 59.
Under section 57, the statement shall be provided to the Minister within a period of 15 months from the commencement of the section, which period may be extended by the Minister by six months. The commission is required from time to time to prepare revised statements for the purpose of replacing the initial statement and to publish the statements on its website.
The statement of knowledge, skills and attributes will be referenced against criteria set out in section 58, including relevant treaties, conventions and statutes with respect to judicial office outside the State, and relevant knowledge and experience at the different court levels in the State. The requirement to have undergone particular education and training programmes or to have undergone judicial training is set out in section 58.
Section 59 sets out criteria for best practice selection procedures which are to be developed by the commission, including procedures for testing and interviews, and references, in the case of offices outside the State, to the relevant requirements set out by the relevant institutions.
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. Recommendations must take account of the need under section 39 to have a sufficient number of judges with a proficiency in the Irish language.
Part 6 expands qualifying grounds for appointment in section 63, 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. Legal academics working in specified educational institutions become eligible for the first time for appointment as a judge of any court, as do 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.
Section 67 provides that the Courts Service shall advance amounts for the purpose of expenditure by the Judicial Council from voted funds, and section 24 provides that the Courts Service shall advance funds to the new commission, as determined by the Minister.
Part 7 in section 68 provides for the dissolution of the Judicial Appointments Advisory Board.
The Bill is a comprehensive and positive contribution to overall judicial reforms and a modernisation of the courts system. It represents a major adaptation and modernisation of the system put in place in the law under the Courts and Court Officers Act 1995. Other civil justice reforms such as the ongoing work of the Judicial Council, the reform of family courts, judicial planning work and the implementation of the Justice Kelly recommendations will, I am confident, improve the efficiency and outcomes of the administration of justice in our courts.
The joint committee pre-legislative scrutiny report on the general scheme was an important contribution to the reforms. I acknowledge the work of Deputy Lawless, the committee and other contributors to that.
I look forward to the debate in the House today and later. I am happy to address any of the aspects of this reform that Senators may wish to raise. I commend this Bill to the House.
There is a lot to unpack in this Bill. As the Minister noted, it is a significant change and there are significant elements in the changes that were contained in the Bill. I echo what the Minister said about the quality of the Judiciary in Ireland. We are tremendously lucky to have a Judiciary that is fair and more importantly, that observes the rule of law. That is not even the case in every European country any more. The fact that we have a Judiciary that does its job and does it faithfully to the Constitution and the law is something that is worth marking.
Something we sometimes forget in this country and which is not part of the popular mind-set, is that the Judiciary is a branch of government. Particularly in a common law jurisdiction, even though that may be a dwindling qualification in the context of the European Union, judge-made law is still a significant part of the law that operates on a day-to-day basis in this country. Therefore who occupies those judicial positions is a tremendously important factor and there must be a democratic element of that the same way that the Executive, the Minister herself and her colleagues in Cabinet, are elected, albeit indirectly through the Dáil and the Members of the Legislature are elected by the people. The people have a direct say in those elections. The say that they have in the appointment of the Judiciary comes through the Cabinet. It comes through the Executive and that function is delegated to them by the people. It is tremendously important that there is that democratic element in the appointment of judges because judges are a branch of government and they still have an important role, not just in the administration of justice but also in the making of law in this country. That is an important point. One of my concerns about this Bill is the provisions in sections 47 and 52 that, to an extent, abdicate that responsibility from the Executive to the judicial appointments commission. Section 52 essentially states that the Government cannot appoint a judge if it has not been recommended by the commission. I understand why that provision is there but we should also recognise that this is a highly significant change in the way that we appoint judges, lawmakers of one sort or another, to the courts in this country. I hope it proves to be the right course of action but I think it is important to mark that we should have democratic input. There is still a democratic input, obviously, because the Cabinet is ultimately making the decision but restricting the decision it can make to a fixed number of people appointed by a body outside the Executive is a highly significant change.
On the commission itself, section 12 outlines who is on that commission. I will say a few things on that. The Bill is prescriptive as to who can be on that body. Again, I understand why that is. One of the most important functions I hope and believe this Bill will have will be to give people a public confidence in how our judges are appointed in order that there can be no suggestion, as there has been in the past and unfairly, that there has been any kind of undue influence put on the appointment of certain judges in certain circumstances. You can pick any number of commentators who have said things like that in the past. I think the experience we have had with our Judiciary and how excellent it has been on the whole belies that notion. But if we can inject that element of public confidence through this Bill then that would be a good thing on the whole.
I welcome that the Chief Justice will chair the commission. That is important. I welcome the fact that the Attorney General is on that commission although I note that he or she is a non-voting member. When I say it is prescriptive, it is quite clear who is going to be there. The provision in section 12(2)(b), which requires of the Judicial Council nominees that one will have been a former practising barrister and one will have been a former practising solicitor, to my mind is unnecessary. I also think that it is foolhardy, to be perfectly honest. It presumes that there will be an equal or even substantial representation by both professions in the Judiciary. It is more important that the people who are represented on the commission are people who have experience of the courts. That is why I also have difficulties with the amendments in respect of the Courts (Supplemental Provisions) Act 1961, later in section 63, which inserts a new section 45A, that solidify the right, for example, of legal academics. There are legal academics in this country who would make excellent judges and others who would not make excellent judges but a fundamental qualification of a judge is someone who has experience of how the courts operate. The law is not something that exists only in books. There is a procedural aspect to it that comes from the practise of law and it is a tremendously important aspect. I am not sure that someone who does not appear in court or if someone is a legal academic who does not appear in court, will have the same breadth of understanding of that procedure that is a really important part of the day-to-day job of a judge. In that regard I think it is regrettable that there is no provision for the legal professions, barristers and solicitors, to be represented on the commission. This is not with a view to furthering their interests but with a view to having the benefit of the experience they have in court on a day-to-day basis, which is very important. Practising lawyers in this country, no matter what level of court, District Court to Supreme Court and whether solicitors or barristers, have a very keen understanding of how the courts work and of who the personalities in the court system are. That can be good and bad. It should not rule the roost because of course there will be personality clashes and likes and dislikes and that should have no role whatever in these decision-making processes but, as we raised at the committee, there should also be room for people who have experience of particular practitioners to be able to bring the benefit of that experience to the commission, even as a minority voice within those discussions.
Likewise, an earlier iteration of the Bill contained a provision for the Irish Human Rights and Equality Commission, IHREC, to have the right to appoint a person to the commission. There is a value in having that particular perspective represented within the commission to give it a flavour of the perspective of a statutory body that is looking at the administration of justice in this country and the making of laws, through judge-made laws, through the prism of human rights and equality which we know is an enormously important aspect of the courts system in this country. We will have a chance to address this on Committee Stage, and the Minister will have given consideration to it already, but would she consider even at this stage, in the context of any future amendments, looking at IHREC's right or role in the judicial commission or those of the legal professions either? There is some benefit to be had in respect of both.
There is obviously a large technical element to this Bill. One thing it does is to set up a whole new agency to do this. I acknowledge what the Minister said about the co-operation of the members of the JAAB and the bodies that precede the judicial appointments commission. It is welcome that they have been of assistance here. It is proper but it is also welcome and worthy of acknowledgement. In a subtle way, the Bill provides for a significant transformation in the way that we appoint our judges.
I welcome the Bill. It is a good legislation because it clarifies issues that might have been open to interpretation in the past. It will set them on the straight and narrow even if there are elements of it with which I disagree. I acknowledge the fact that it is quite prescriptive and for a good reason. On the whole it is good and solid legislation. I hope that we will have an opportunity to discuss the minutia in greater detail on Committee Stage and I look forward to that debate.
I welcome the Minister and her officials to the House today. I welcome that this legislation is being put before the House. It is a huge improvement on the Bill which was debated at great length in this House before. I should acknowledge that fact. There are a number of issues, though, that I do want to raise. One has been raised by Senator Ward, namely, that in effect, section 52 now says that a person cannot become a judge if a working majority on the commission decides that they will not become a judge. Effectively we are giving to a working majority on the commission, which is effectively the Judiciary, a veto on anybody becoming a judge. The Constitution talks about eligibility to become a judge. This is not a question of eligibility because quite clearly, it is a question of a choice made by a number of people as to who is better than somebody else.
It is not a question of eligibility but rather one of discretion and opinion. I share Senator Ward's concern that we have moved from what was in the previous legislation, which at least always acknowledged that the Government could, in the final analysis, appoint an eligible person to the Bench, to a situation where section 52, on the face of it, seems to prohibit that, and I think it is inconsistent with the Constitution to do that. If, for example, the Attorney General reports to the Government of the day that a given barrister has been turned down eight times by the commission, which seems to take a poor view of him or her, I do not believe it will be prohibited by law from appointing that person no matter what its view of his or her merits may be. There has been a change between the old text and the new text, and I think that text has a constitutional dimension to it that we cannot ignore. If we are going to say a majority on this commission can veto anybody from becoming a judge, even though he or she may be eligible and even though the Government of the day might consider the person a very suitable person to appoint to, say, the Supreme Court, which is a very important court, and if it is to be able to do so constantly and without giving reason but simply by producing three other nominees, that is constitutionally doubtful, in my view.
I make that point not in a negative way but rather to note the change of tone with this Bill. Section 52 may be simple, but it may be constitutionally infirm and simplistic if it has the effect of telling a Government of the day that four or five judges do not take a good view of a given person and that, therefore, it may not under any circumstances appoint him or her. It will not do it in terms whereby it will say the person is unsuitable; rather, it will keep coming back with three other people every time and the name of the person in question will never appear on the list going to Government.
A point I raised on many occasions when the Bill of the then Minister for Transport, Tourism and Sport, Shane Ross, was before the House relates to the problem with the rigid way in which the Bill, if enacted, will work. If a vacancy appears in, say, the Supreme Court and a judge of the Court of Appeal is appointed to that position, a High Court judge will be appointed to the Court of Appeal, so there will be a trickle-down consequence over three, six or nine months under this procedure because each vacancy will not be created until the previous appointment has been made. I raised this point previously and I know the then Minister for Justice, Deputy Flanagan, had to put up with me at great length in that regard, but we do not have to ignore it. If each successive vacancy has to be advertised, interviewed for and filled, just a simple trickle-down of that absolutely classical kind will take the bones of one year. We have to think very carefully as to whether that is a good idea, and there is a way around it. There should be some system in the Bill for people, such as High Court judges, to apply to be interviewed, if that is required, and then to be "on stock" and available for recommendation, rather than have a particular vacancy arise and then require people who are already in the hunt to go through an entirely separate process. I ask the Minister to take on board the fact that is going to be a serious problem with this legislation. It will slow down judicial appointments significantly where that kind of situation arises.
Judges coming up to retirement frequently have to absent themselves from hearing a case because they know it is unlikely they will still be on the Bench when it comes to deciding the case. An obvious way around this was proposed in one of the amendments the Independent Group of Senators tabled on the previous occasion, whereby judges would be allowed to finish their cases after their retirement at the invitation of the president of the court.
Lastly, I echo what Senator Ward said about the absence of people from the legal professions being on the council. It is very simple to take them out, in order that any allegation of cronyism and so on can be easily rejected, but people have a great knack - especially unsuitable people - of appearing plausible to people who do not know them. They can do wonderful things at an interview. There are now thousands of solicitors and thousands of barristers and a growing population of more than 5 million, and the Judiciary will not know an awful lot of the candidates who are before them. It is, in my view, a good thing that somebody would have a clear view of the reputation of the candidate, whether he or she is a crank, extremely unpleasant personally or whatever the case may be. That kind of reputation is relevant to choosing a good judge. To ask people on the basis of a plausible interview and a good paper CV to make an appointment ignores the opportunity, which I think is a valuable one, for a litmus test of whether the person is, by reputation, suitable to be on the Bench. I think the Bill is deficient in that it excludes that possibility.
Nevertheless, I welcome the Bill and hope we will have good debates on Committee and Report Stages.
I welcome the Minister to the House. Fianna Fáil welcomes the Bill, which is an important step forward in the reform of the judicial appointments process. Having said that, it is important to acknowledge the process to date has served us well. When enacted, the Bill will lead to the most significant reform in the way judges are chosen for appointment in more than a quarter of a century. It is vital we have a clear process for judicial appointments that people understand and have full confidence in. The Bill will allow for the establishment of a judicial appointments commission of nine members, chaired by the Chief Justice, to replace the current Judicial Appointments Advisory Board. All four lay members of the commission will be selected and recommended by the Public Appointments Service. The Bill will ensure that anyone who wishes to be considered for appointment to judicial office, including serving judges, will apply to the commission and undergo the same application and interview processes. Membership of the Judiciary should also reflect the diversity of the population as a whole, as the Minister outlined, and a new diversity statement will commit the judicial appointments commission to that objective.
In summary, the Bill will provide for the establishment of a judicial appointments commission of nine members to replace the Judicial Appointments Advisory Board. The commission, under section 9, will be chaired by the Chief Justice and will have an equal number of judicial members, namely, the Chief Justice, the President of the Court of Appeal or the president of another court, depending on which court vacancies are being considered, and two Judicial Council nominees, along with the same number of lay members recommended by the Public Appointments Service and appointed by the Minister. The Attorney General will be a member in a non-voting capacity.
Some of the key improvements in the Bill compared with what was outlined in its general scheme include the discretion of the Government in the appointment of judges being significantly curtailed. Judges will now only be able to be appointed from a shortlist of three drawn up by the judicial appointments commission, or five names for two vacancies or seven names for three, and only after an interview process. This reflects a recommendation of the Irish Council for Civil Liberties, ICCL. In addition, it is very welcome that this new independent process will also apply to appointments to international courts.
The general scheme had proposed a separate process for the appointment of the Chief Justice, the President of the Court of Appeal and the President of the High Court, a process that would have required heavy Government involvement. Following submissions by the ICCL and others, this proposal has been dropped and these positions will be filled in the same way as those for ordinary judges.
This is a highly significant improvement and means there will be one fair and merit-based process for all appointments. A provision has been inserted in the Bill requiring all candidates to undergo judicial training or continuing professional development. This again must be welcomed.
At a broad level, the Judicial Appointments Commission Bill aims to regularise the process of nominating judges and implicitly reform the old process of getting the old tap on the shoulder from the Judicial Appointments Advisory Board, JAAB, or the Minister. Notably, applicants cannot be invited to make applications as they can under the current JAAB process. Furthermore, judges seeking promotion to a higher office will also have to partake in the appointments process, which is not currently the case. The commission will be independent and have control over its own procedures, which is a necessary aspect of ensuring objective recommendations. The formalised application process and selection statements will clearly assist in providing transparency for applicants and the public, who will know the general standards to be met in order to be recommended.
The commission’s main purpose will be to recommend to the Minister persons for appointment by the President to the Judiciary on the advice of the Government. In a change from current practice, serving judges wishing to be considered for promotion to a higher judicial position will be required under the Bill to apply to the commission, as will any person wishing to be considered for appointment to judicial office. The commission will set out best-practice selection procedures, including interviews, and the knowledge, skills and attributes required of judges. There is provision for a dedicated support office headed by a director and staff. It is also positive that the Government’s discretion to choose judges is limited to those who are recommended by the commission.
Overall, it seems that the Judicial Appointments Commission Bill is a constructive attempt to reform the appointments process in Ireland. Future judges will have the endorsement of their peers through the commission’s recommendation and the formalised nature of the process brings greater transparency to appointments.
As I said at the outset, it is important that the general public has full confidence in the Judiciary. We have been well served in that regard and it is very important that we make that point. My two learned colleagues to my left have made the point that the input of professionals within the system is also important. I would like the Minister to take on the points they have made so that those who make appointments can be best informed and advised by people who walk the walk and talk the talk every day in that particular field.
The Minister is very welcome to the Chamber. I surmise that the heart of this legislative initiative is more transparency and open competition. Each generation should not fear review and reform. Ways can always be found to make things better than they are because nothing is perfect. However, as other speakers have said, the appointments process in this State to date has served us very well. It is very important not to throw out the baby with the bath water.
The Bill proposes to establish a judicial appointments commission with the function of selecting and recommending persons for appointment or nomination for appointment to judicial office inside or outside the State. It would have a lay minority comprising only four of the nine members. This is a significant departure from the then Minister, Shane Ross's Bill. I personally welcome that. I believe in a significant and genuine input from lay members but that the balance should be struck in favour of those who are on the front line day in, day out and who have more experience.
There is a requirement that three candidates be recommended for each judicial post. Senator McDowell has made the point that, under section 52, a person might be very eligible but never get to the next stage, his or her promised land. Amendments may be brought before this House to address that without bringing it back to square one. All of this would be for naught if there were an exception that could be used all of the time.
There is another question with regard to the constitutional discretion of the Government and the reduction in the number of recommended candidates from seven to three. There may be an argument that this overly restricts the exercise of that constitutional discretion. At the end of the day, we are a sovereign State and the Government gets advice on these matters.
The commission is to include the Chief Justice, the President of the Court of Appeal, two members of the Judicial Council, two ordinary judges and the Attorney General. I would have preferred the Attorney General to have a vote. It is more than a symbolic role. The Attorney General is leader of the Bar. Advising the Government is a very high constitutional office and I see no harm in the holder being given a vote.
When the commission is recommending candidates for the High Court, Circuit Court or District Court, the relevant president will replace the President of the Court of Appeal on the commission. I agree with that because that president will know his or her court best. However, an unintended consequence of knowing the court very well is that there may be a fantastic barrister or solicitor who has been on the wrong side of that president for many long years. Section 52 may have an unintended consequence, as has been said.
The Minister has taken on board some of the issues raised about the general scheme when it was published. There were issues around the independence of the appointments process, diversity of appointments and the ongoing professional development of the Judiciary. These have, to a large extent, been addressed. The separation of powers and non-political appointments are things we can be proud of in Ireland. It is welcome that the proposed judicial appointments commission addresses the objective that the membership of the Judiciary should reflect the diversity of the population as a whole in addition to gender equality and Irish language requirements. We have made some progress in the Irish system but it is worth going further and realising that diversity will greatly benefit our judicial system. It was said not too long ago that, when there were fewer High Court judges, they all happened to come from a small number of well-known schools. They served the country fine but the court would have been enriched if there were judges coming from every parish rather than just a few well-known schools that have a fantastic tradition of producing judges.
I will also raise the issue of encouraging more diversity. This goes to the very heart of it. It must start with the legal profession. In an article about the Bill, Killian Flood raised the issue that it may be difficult to recommend people with a variety of backgrounds because of the relative lack of diversity among the population of lawyers within the State. That is a very important point. It is very difficult to conjure up diversity if it is not there in the first instance and if the body of people eligible for appointment does not represent full-blown diversity. The sad reality is that, to this day, because it is so difficult to get through the Law Library while staying alive financially due to the challenging and impecunious nature of one's early days, people from less well-off backgrounds tend not to survive and thrive, although there have been notable exceptions. The diversity required starts in the primary schools and secondary schools. Although it was quite some while ago, for many a year, I streamed barristers towards visiting schools. They were some brilliant schools but they did not have a judicial tradition. I am talking about tens of thousands of students. Law is not on the State curriculum. Some students were unaware of the basic distinction between a barrister and a solicitor. That has to be addressed. Perhaps we should look at putting law on the curriculum to demystify the law in a fundamental way.
In the time I have left, I will also briefly address the logjam of cases before the courts. I welcome the extra €12.5 million the Minister secured for the courts in the budget, bringing the total to €176.5 million. I particularly welcome the €2.5 million to be used to support judges in clearing the backlogs exacerbated by the pandemic. This will be of great importance. It will take a lot of effort, time and money but it would be worth moving to a system in which judges do not, in most instances, proceed to hear another case until they write the judgment in the case they have just heard.
It will be expensive to do that, but justice delayed is justice denied. We are waiting for unacceptable periods at times for judges to write judgments. It is not a reflection on them but on their workloads. They could have five or six judgments outstanding. That is one small way to address the issue. Another way to address it is to place more of an emphasis on their internal dispute resolution mechanisms. I think of arbitration and mediation. That would go some way to addressing the issue of too much automatic recourse to the courts when there might be a less expensive, faster resolution staring people in the face but they cannot see it. The courts are not afraid of this. Judges would be only too happy to steer more emphasis towards the option of arbitration or another alternative dispute resolution system.
Cuirim fáilte roimh an Aire. It feels like a lifetime since we debated a Bill like this on Second Stage. That is mostly down to Senator McDowell. Senator Gallagher remembers the last Bill.
I think the Cathaoirleach had a part in it too. Nevertheless, it is important we are back to debate it. It is welcome that the Bill is before us. I will not use all my time. I will outline an overarching view of the Bill. The thrust of my work will be when it comes to us on Committee Stage, which I will refer to briefly. The Minister will forgive me for having to read my notes from my phone on this occasion.
This Bill is about the long-overdue reform of the system used to appoint judges. It proposes a raft of reforms which change the way in which judges are appointed. For many years, previous Governments have shown little urgency with respect to implementing reforms that are needed to enhance public confidence in the independence of the Judiciary. Before this Bill came before the Oireachtas, Fine Gael was in no rush to reform the appointments system for the decade or so it was in government. It is important a level playing field is created to ensure transparency in the appointments process and that a mechanism is in place which keeps the Government's influence at a distance, with merit being the overriding consideration. That is why the Joint Committee on Justice did not accede to the request to waive pre-legislative scrutiny, which is important. Its position has been vindicated, since the Government tabled a number of amendments arising from the pre-legislative scrutiny, including a requirement that judges be interviewed, guarantees that anyone appointed has gone through the judicial appointments commission process, and that only a specific number of individuals can be forwarded for consideration.
We tabled a number of amendments to the Bill in areas where it lacks, although none have been accepted until this point. The speed of movement on this process reflects the pressure the Government has been under regarding the system and how it has operated. Most important and worrying, the Bill still sees a role for the Attorney General in the judicial appointments commission. This is where I diverge from some of my colleagues. A group of academics, including Dr. Laura Cahillane, Dr. David Kenny and Dr. Tom Hickey, wrote to the Minister to advise her to remove this from the Bill. The Bill does not have a cooling-off period for the appointment of an Attorney General to judicial office. My colleague, Deputy Martin Kenny, introduced a Bill to make the Attorney General ineligible for appointment to the bench straight after leaving office. Given that we have seen two Attorneys General move seamlessly across, the Office of the Attorney General should be nowhere near this process. I alert the Minister and her officials that Sinn Féin will table this amendment again in the Seanad. We urge the Minister and colleagues in Government parties to reflect on and consider the merits of the amendment and to consider accepting it.
I welcome the Minister. I am merely standing in for my colleague, Senator Mark Wall, to flag some of the amendments we will table on Committee Stage. It is always a bit intimidating, particularly when the subject is judicial reform, when one turns up and half the Chamber is packed with barristers.
Not I.
I am not either.
We welcome this Bill, but first I raise some of the amendments we would like to table. We are a little concerned about judicial independence. We will seek to incorporate judicial independence, appointments by the Minister, and the Dublin declaration on standards and recruitment for the appointment of members of the Judiciary into the Bill on Committee Stage.
The second issue I will flag is the appointment of the Irish Human Rights and Equality Commission as a nominating body. The initial draft of the Bill guaranteed that human rights and equality expertise would be included. That seems to have been scrapped in this version of the Bill. We will table an amendment, as the Irish Human Rights and Equality Commission recommends, to ensure expertise is possessed by laypersons who can be appointed to the commission. Without this guarantee, the Bill allows any layperson who is a member of the Irish Human Rights and Equality Commission to be appointed regardless of knowledge and expertise. We seek to amend that to ensure there is specific human rights knowledge and expertise among the laypeople who are appointed. It is in the best interests of the judicial appointments commission to maintain this commitment to human rights and equality throughout its selection procedures. This requirement is an addition to the Bill. The amendment maintains the rest of the original text. I will leave it at that, having flagged those amendments we will table on Committee Stage.
I welcome the Minister to the Chamber for the second time today. I have never spoken on this Bill but I recognise, as the barristers in the room have said, that we have a strong record of judicial excellence and independence. This is about opening a more transparent process, which is welcome. The Minister mentioned diversity many times in her speech. It is obvious much thought has gone into this. There is the diversity statement and two appointments from the Judicial Council, including one man and one women, while the lay members are to include two men and two women. It is in that spirit I raise the concerns of the Irish Human Right and Equality Commission. It was included in the general scheme and had the ability to appoint someone who would represent human rights and their protection and promotion. Now, those four lay members will cover knowledge of and expertise in the justice system, business, corporate governance and human rights. There is no explicit guarantee.
The Minister said it would be important to have a more proactive and precise focus on human rights and equality and that they should be protected in this process, but it is not guaranteed as part of the appointments. I feel it is a positive provision to have a lay member with that responsibility. Judicial appointments are important and having somebody with oversight of diversity, gender balance and representation of minorities is important. We recently heard from the Irish Human Rights and Equality Commission about its public sector equality and human rights duties under section 42 of the 2014 Act. It would be a proactive step for the judicial appointments commission to meet its statutory obligation to fulfil those duties too. I ask the Minister to consider that. If the Irish Human Rights and Equality Commission tells us it feels there is room for people's rights and equality to be strengthened, then we need to listen. The general scheme suggested the appointment would be from its current membership. The Irish Human Rights and Equality Commission suggested it is willing to look at that issue more broadly and that it could be an area for compromise.
I ask the Minister to reflect on that point.
As we have no further speakers, I ask the Minister to respond.
I thank all of the Senators present and those who have left for their contributions to this Second Stage debate. The Bill is an important part of my own justice plan, is part of the overall programme for Government and is part of the overall mission to build stronger and safer communities, which includes reform of the courts. It is a key element of the democratic charter of the State. Judicial independence safeguards a citizen's rights to have his or her own case decided on the law, the evidence and the facts without improper influence. I believe that this reform will safeguard and enhance the continued independence of the Judiciary, which is vital.
I will turn to some of the points that have been raised. Obviously we can discuss any points in more detail and I will engage with Senators prior to Committee Stage. I refer in particular to some of the points raised by Senators Ward and others about the reason for being prescriptive in section 52 in respect of who is appointed. What I did not want was a commission comprised of 15 or 20 members, that is, a large number that would make it more challenging and feel unwieldy when it came to the commission making a decision.
I appreciate there may have been some upset that the Bar Council and the Law Society were removed. The reason that I was prescriptive in ensuring that we had a judge from a solicitor and a barrister background was to make sure that we still had that representation. That is absolutely certain because it is really important to have representation from both sides when it comes to being on the commission itself.
On legal academics being appointed, again that is why interviews exist, so it is not just to look at somebody's qualifications on paper. Interviews are important to understand if somebody is appropriate or has the legal knowledge and an understanding of how the courts function, not just an ability to read. Interviews are mandatory and will be part of this process, which is important.
A number of Senators have mentioned IHREC and asked why it was removed. There are other organisations that feel they should be represented, whether it is the ICCL or whomever, and by specifying one specific group, one then singles out others. The Bill does not prohibit IHREC members from applying. I am clear in setting out the criteria that there should be a human rights focus. By singling out one organisation, which I appreciate is a very important organisation and does hugely important work to protect human rights, there are many organisations that feel they would have an equal reason for being on this commission. It is important that we have a transparent process and make sure that when the Public Appointments Service, PAS, puts forward recommendations for laypersons, the human rights element is clearly taken on board. I encourage members of IHREC and anyone who is part of that organisation to apply, thus ensuring we have such representation on the board.
On what has been proposed as a veto, I feel and have set out clearly that it is a merit-based system and to get to that point, you will have to go through set criteria that will have to be published and clearly set out. While there were nine members, there are eight voting members and there will have to be a consensus reached because it is four lay members and four members of the Judiciary. Again, it will not be just the Judiciary deciding. Obviously they will have a say but people will have to reach a consensus.
The reason I have asked that the lists are still sent to the Minister is to ensure that if there is a situation where people who clearly have the qualifications are not coming through or are not being put forward, then that will be something that can be seen and the Minister can examine the matter. If it is felt that changes need to be made or that the system and the process are not working in the way they should, then that is something the Minister can decide to change or amend at a later stage.
In terms of delays, at the beginning of the year we opened up the JAAB so people can apply as vacancies arise. It is not prescriptive in the Bill as to how the commission might do so. It is within the remit of the commission to say at the beginning of the year that it will set a process and fill vacancies as they arise. I will engage with Senators on this matter because I do not want a situation where a vacancy arises so we have to open a competition and there are delays. People have engaged me on this matter where it has been made very clear to me that we need more judges, that positions must be filled quickly and that there are a lot of delays. As I do not wish to delay this further, the commission has the remit and scope to set this out, which can be done at the beginning of the year in January and as vacancies arise.
Senator Martin mentioned unintended consequences where there is potential for the relevant president to dislike somebody. We must consider this matter from the point of view that the president will know who the judges are, the work that they do and, therefore, who is competent and who is suitable for a role. We must examine this matter in a more positive way. In any walk of life, there is a possibility that somebody will abuse their position but that is why it is important that the Minister can see, where names are coming through and where people are clearly suitable that if a problem is arising, it can be addressed.
On education and diversity, I met representatives of the Law Society only yesterday and a huge focus of our meeting was on how we can attract a more diverse range of people into the profession. The Law Society has done a huge amount of work on this matter. I have also separately asked the Legal Services Regulatory Authority to consider expanding education and access to education because I believe that the two go hand in hand. I think that the Senator is right that we need to start at the early stages and not when we are just selecting judges.
On the Attorney General and the cooling-off period, I have worked closely with the current Attorney General and have seen the sacrifices people in that office make and the amount of time they put into the work. As I said in the Dáil, for somebody who puts himself or herself forward or is asked and accepts the prospect of taking on such a significant role but then to be disadvantaged because of it would, I think, be a huge turn-off for anyone to take on what is such a significant and important role in the Government. The person would still have to go through the same process as anybody else but were he or she prevented from doing so because he or she had been a service to the State, I think very few people would take on the job if that is what they had intended later on in life.
Again, the IHREC issue has been raised by a number of people. Finally, on challenges and delays to the courts, as much as €2.5 million of the money that has been allocated was to prepare the ground and lay the foundation for what I hope will be a significant increase in the number of judges. I hope to get the Brigid McManus report in the coming weeks. I also hope it will set out not just an increase in the number of judges but also where we can have greater efficiencies and perhaps change some of the work practices. The solution is not just having more judges but it how they operate and function. I look forward to receiving that report.
I thank colleagues for their contributions. Some of the points we can clarify. Amendments will be proposed and I will engage with all Senators on them before we come back on Committee Stage.
Question put and agreed to.
When is it proposed to take Committee Stage?
Next Tuesday.
Is that agreed? Agreed.
Committee Stage ordered for Tuesday, 11 October 2022.
Cuireadh an Seanad ar fionraí ar 3.38 p.m. agus cuireadh tús leis arís ar 4.45 p.m.
Sitting suspended at 3.38 p.m. and resumed at 4.45 p.m.