Select Committee on Justice and Equality díospóireacht -
Wednesday, 18 Oct 2017

Judicial Appointments Commission Bill 2017: Committee Stage

Minister for Justice and Equality (Deputy Charles Flanagan)

I thank the Chairman and members. I welcome the commencement of the Committee Stage debate on this important piece of legislation, the Judicial Appointments Commission Bill 2017. Let me emphasise that this major piece of legislation arises from public consultations in 2014 on the widespread appreciation of the necessity to reform the system for the appointment of members of the Judiciary.

The Judicial Appointments Advisory Board has served the country well. I acknowledge the excellence of the Judiciary, which enjoys a very high degree of public confidence. The programme for Government commits to a new Judicial Appointments Commission, with an independent Chairman and a non-legal majority.

That is what is delivered in the Bill. I will be in listening mode today. I will table no amendments on behalf of the Government on this Stage. I will not agree any amendment that cuts across the basic tenets of the commitment in the programme for Government. However, I have not come here with a closed mind. I certainly do not have a closed mind as regards a number of the issues covered by the amendments. I express my appreciation for the work that the Deputies have done in recent weeks and their diligent and significant efforts in arriving at a programme of almost 200 amendments. The matters covered by the amendments show a diversity in thinking and highlight a number of policy differences that we no doubt will debate in some detail today. I thank the Chairman for convening the meeting and I look forward to debating the amendments with members.

Chairman

I thank the Minister for his opening remarks. Before we proceed, will he clarify a matter? I understand that he might have to leave at midday. Is that the case? There is a question as to other legislation in the House that may cut across this.

Deputy Charles Flanagan

Yes.

Chairman

Will the Minister clarify the position in terms of his attendance?

Deputy Charles Flanagan

I hope to be here until after 12 noon. There are other commitments in the Seanad and the Dáil, but they are somewhat fluid in terms of the scheduling of business. We will meet for three or three and a half hours, or more if the intention of the committee is to sit all day. I have a commitment after lunch in the Seanad and a Dáil commitment at some point around lunchtime. Unfortunately, I do not have the precise details, but I can get those to the Chairman in the course of the morning.

Chairman

I only asked the question because that was the information that I was provided with. I just wanted to clarify for members and the Minister.

Deputy Charles Flanagan

What is the committee's thinking?

Chairman

We intend to proceed. We will take it as it progresses. We have access to this room until 1.15 p.m. max. We must vacate at that time.

Deputy Charles Flanagan

I may be in some difficulty at around 12 noon or 12.15 p.m., but I am ultimately in the hands of the committee.

Chairman

If we do not conclude, we will have to resume.

Deputy Clare Daly

I went to the trouble of checking yesterday what time we were finishing and I was told that it would be at 12 noon. Deputy Fitzpatrick, who is not present at the moment, and I are members of the Joint Committee on the Eighth Amendment of the Constitution, which will sit for the afternoon until 7 p.m. or 8 p.m. We were operating on the basis of a 12 noon finish for this meeting.

Chairman

The point on checking is important. This is the information that we were given. When questions arose as to other members and other responsibilities, we advised that we had been informed that the Minister was not able to stay after 12 noon.

Deputy Charles Flanagan

If members are satisfied with that, I would not have a difficulty. We all have busy schedules, but I am keen to get as much work done as possible.

Chairman

In that case and in deference to members' other commitments and the advices already shared, we will conclude at 12 noon. Does Deputy O'Callaghan have a point to make?

Deputy Jim O'Callaghan

Just to agree with that.

Chairman

Before we continue, the grouping list has been circulated to members, but I wish to advise that two amendments have been ruled out of order. For the notation of members, the first of those is amendment No. 25 in the names of Deputies O'Callaghan and Chambers. The note from the Bills Office is that this amendment seeks to add the Presidents of the Circuit Court and District Court to the list of members of the commission. Section 4 of the Bill provides that the expenses incurred in the administration of the Act should be paid out of moneys provided by the Oireachtas. Section 14 provides for the payment to members of remuneration and allowances for expenses. The Bills Office advices that the amendment must, therefore, be considered to be out of order on the grounds that it causes a charge on revenue in accordance with Standing Order 179(3).

Before taking any comment from either of the two proposers, I advise that amendment No. 34 in the name of Deputy Daly has the same ruling. That amendment seeks to add a person nominated by the Free Legal Advice Centres, FLAC, and the Irish Council for Civil Liberties, ICCL, to the list of members of the commission.

Deputy Jim O'Callaghan

I thank the Chairman. He communicated that to me by way of a letter and has just stated the ruling again. In fairness to him, it is an instruction that he has received from the Bills Office, so I do not hold him in any way responsible for ruling amendment No. 25 out of order.

The basis for it being ruled out of order is that it incurs a potential charge on revenue, but I find that difficult to accept. My amendment proposes that the presidents of the Circuit Court and District Court be added to the judicial appointments commission. No charge is involved in that. There is no claim for remuneration that a judge is entitled to as a result of being a member of the commission. We know that the expenses of the Judicial Appointments Advisory Board, JAAB, on which sit the presidents of the Circuit Court and District Court, were in the region of less than €5,000 last year, so I do not see how it can be suggested that, by adding them, I am putting a charge on revenue.

What makes it even more surprising is my amendment No. 49, which seeks the appointment of six individuals to the commission. They would be persons nominated by the Citizens Information Board, an tÚdarás um Ard-Oideachas, the Competition and Consumer Protection Commission, CCPC, the Irish Human Rights and Equality Commission, IHREC, FLAC and the Top Level Appointments Committee, TLAC. Some of these are included in Deputy Daly's amendment, which is being ruled out of order, so I do not see how amendment No. 49 stands when amendment No. 25 is ruled out of order.

I am conscious that the Chairman cannot change this, but I want to record my objection. It is appropriate that this body contain the presidents of the District Court and the Circuit Court. They are members of the JAAB. The majority of appointments are to the District and Circuit courts. By excluding the presidents of those courts from membership of the commission, we are doing a disservice to the public and losing out on important expertise. The Chairman cannot do anything about it this morning, but I will seek to table amendments to that effect on the next Stage when the Bill returns to the Dáil so as to ensure that those two officeholders are members of the commission.

Chairman

Before I call Deputies Daly and Chambers, if he wishes to comment on this, I advise Deputy O'Callaghan that he will have to raise the matter directly with the Ceann Comhairle. The Deputy has already indicated that he will resubmit the amendments for Report Stage, which is his entitlement. Perhaps we will not conclude Committee Stage today, in which instance he will have a period of time in which he may have the matter satisfactorily addressed. In any event, and as the Deputy rightly said, we will not be able to address the matter further at this meeting, but I will allow the other Deputies affected to make a brief remark before proceeding to each of the individual amendments.

Deputy Clare Daly

I will just take 30 seconds. My amendment relates to the two lay people who are nominated by FLAC and the ICCL, which has nothing to do with incurring a charge on the Exchequer. When we rang the Bills Office yesterday after seeing the rulings and because we could not figure out why in God's name this amendment would be ruled out when those organisations were mentioned elsewhere, the office came up with a completely different technical reason. We were told that it would have been grand had we included this provision in amendment No. 33 and that we could do that on the next Stage. The ruling seems rudderless and without basic reasoning.

Although there was a storm, the lateness of the groupings list was not helpful. It is difficult to prepare if we are only getting the groupings the evening beforehand.

Chairman

The Chair concurs.

Deputy Jack Chambers

I concur with my colleagues. The ruling is inconsistent, contradictory and without rationale. Two bodies are mentioned in Deputy Daly's amendment and six in Deputy O'Callaghan's, but one amendment is allowed and the other is not. We have seen examples of this happening in other Bills, when it is asserted that there is an apparent charge on the Exchequer where there is none. This is not good enough. Under the Standing Orders, the matter is beyond this committee. The Chairman is given an instruction that he must underwrite, but whoever is accountable for such a decision should appear before the committee and the ruling should be debated beforehand.

I think it has to be rectified.

Chairman

I do not propose to refer to the Minister in regard to this matter because it does not directly involve him.

Deputy Jack Chambers

I know.

Chairman

I suggest to the three members of the committee that, together, they might seek an opportunity to address these matters to the Ceann Comhairle at the earliest opportunity. If that is agreed, we will move on to the detail of the Bill.

Section 1 agreed to.

SECTION 2

Chairman

Amendments Nos. 1, 7, 10, 96, 97, 100, 103, 109 to 113, inclusive, 180, 184 and 191 are related and will be discussed together. Amendment No. 1 is in the names of Deputies O'Callaghan and Chambers. I invite the Deputies to comment on the amendment and the grouping.

Deputy Jim O'Callaghan

Can I clarify the position on the grouping? I am going to speak to amendment No. 1. Does the Chairman wish me to speak to the other amendments immediately after that?

Chairman

Yes. Whichever are the amendments on which the Deputies want to make a contribution, they should avail of the opportunity now. Once we have already addressed it as part of the grouping, when we reach the point of decision, we will not then be able to re-open it for contributions.

Deputy Jim O'Callaghan

I move amendment No. 1:

In page 8, to delete line 7.

The amendment proposes the deletion of the definition of the "Director" of the office of the judicial appointments commission. The purpose behind all of these grouped amendments is to try to change the proposed legislation, which has within it a proposed mechanism which will have an office of the judicial appointments commission and, within that office, a director and with the office able to retain staff, hire people and, in effect, become a large, expensive quango. The reason I say it is going to become large expensive quango is that, in the Explanatory Memorandum prepared by the Minister and given to the Dáil on Second Stage, the last paragraph stated that the estimated costs of the office of the judicial appointments commission would be €1 million per annum. The current costs for the Judicial Appointments Advisory Board, JAAB, which does the same work, last year were less than €5,000 - a journalist put down a question and got an answer of a figure something over €4,000.

The work that is going to be performed by this new commission is, in substance, no different from the work that has to date been performed by the JAAB and the workload is not considerable. The function of this new body is to recommend persons it believes are suitable for appointment to judicial office. I went back and had a look at the reports of the JAAB for the last number of years. The job of the board in 2016 was to consider people for eight positions on the Judiciary - one on the Court of Appeal, two on the High Court, one on the Circuit Court and four on the District Court. That is the job it had - to recommend to the Government persons for eight positions. It is not something for which we need to set up an office that is going to cost us €1 million a year. It is not a job that requires us to have a director in place who is going to be paid a big salary and who will appear on Sunday morning radio programmes as the director of the office of the judicial appointments commission.

We do not need to go through the tortuous process of setting up this quango. Therefore, the proposal I have in amendment No. 1 is that we will get rid of this office of director because we do not need it. At present, the JAAB does its job perfectly well with a secretary - a Mr. Ryan - who performs the function and convenes the meetings. The board meets three or four times a year to consider applications and make its recommendations. In 2015 the JAAB report revealed there were 11 appointments in that year and, on average, we are talking about ten, 11 or 12 appointments each year that need to be advised upon by this new body. I think it an excessive waste of money and waste of time to set up this large structure which will have an office, a director and staff. The purpose of amendment No. 1 is to remove "Director" from the definitions.

Amendment No. 7 seeks to remove the definition of "Office" from section 2. Amendment No. 10 seeks to insert a new position into the definitions section, where, instead of having a director, let us do what we have under the JAAB and have a secretary to the commission. Amendment No. 96 is a similar amendment, which proposes to change the reference to "Director" to "Secretary", and amendment No. 97 seeks the same. In amendment No. 100, I seek to delete “Director, a member of staff of the Office” and substitute “Secretary”, and I seek the same in amendment No. 103. Amendment No. 109 again seeks to refer to the secretary of the commission as opposed to the director, and the same applies to amendments Nos. 110 to 112, inclusive. Amendment No. 113 seeks to insert, "The Secretary shall be responsible to the Commission for the performance of his or her functions".

Amendment No. 180 seeks to delete lines 25 and 26 of page 39 which refer to the review of a procedures committee. One of the things it is required to do is monitor "the effectiveness of the administrative support provided by the Office to the Commission". We do not need administrative support provided by an office of a commission whose job is to make recommendations in respect of ten to 15 positions each year. Amendment No. 184 refers to lines 8 to 10 of page 40. Again, similar to the previous amendment, this seeks to remove the requirement to ensure the effectiveness of the administrative support provided by the office of the commission. The final amendment, amendment No. 191, has the effect of seeking to remove from the Long Title to the Bill the reference to it setting up an office of a judicial appointments commission.

Irrespective of the differences people may have about how this body should be constituted, the last thing anyone wants to do is set up an unnecessary statutory body that is going to be staffed by more people than it is recommending for positions each year. We do not need a huge office, we do not need a director, we do not need glossy publications and we do not need anyone appearing in the media with the introduction, "Here we are joined today by the director of the office of the judicial appointments commission", and giving his or her views on the Sunday newspapers. We are just creating an unnecessary mini-empire. The JAAB does the job for less than €5,000 a year. Why set up this body that is going to cost €1 million? We should give it to trained judges. I am sorry for going on but there are a lot of amendments.

Chairman

Absolutely. It is important that the appropriate time is taken. I invite the Minister to make a response and members might indicate if they want to make a contribution or ask further questions.

Deputy Charles Flanagan

The first group of amendments relates to an expressed desire on the part of members to take out or eliminate any reference to the office of the new commission and its proposed director.

The amendments, taken together, would eliminate the administrative support office established under Part 5 of the Bill in sections 32 to 34. The Deputy also intends to delete sections 32 and 34 in their entirety. Section 32 provides for the legislative basis and funding arrangements for the administrative support office headed by a director attached to the commission. The office will be under the control and management of the commission and, subject to the consent of the Minister and approval of the Minister for Public Expenditure and Reform, it may have staff members who would be Civil Service employees. Section 34 sets out the functions of the director.

Amendments Nos. 109 to 113, inclusive, would alter section 33 by the substitution of the director with a secretary who, on his or her own without any staff resources or administrative back-up, would be responsible for the workings of the commission. The amendments would change the term "Director" wherever it appears throughout the rest of the Bill with the term "Secretary". This would mean that in place of the director, a secretary would instead, under section 24, be accountable to the Committee of Public Accounts. The same would apply in respect of section 29 which protects against disclosure of confidential information obtained in the course of performing functions as director or members of staff of the judicial appointments commission office and, likewise, in respect of section 30 which safeguards the confidentiality of the proceedings of the commission and its communications.

The amendments would also remove from the Bill the role the Committee on Procedures has under section 58 in monitoring and reviewing the effectiveness of the administrative support provided by the office to the commission and the obligation the committee has, following that review, to report to the commission and make recommendations, as necessary, with a view to ensuring the effectiveness of the administrative support.

Amendment No. 191 would change the Long Title in so far as it relates to the establishment of the judicial appointments commission office.

The Schedule sets out further necessary detail regarding the status of the commission as a body corporate; administrative arrangements in respect of the official seal; and what circumstances might cause the director or the Civil Service staff of the director to cease to attach to the office. We should bear in mind that amendment No. 35 concerns the Schedule which the select committee will discuss later.

I am at somewhat of a loss to understand the logic of the amendments and the proposed deletion of all reference to the office of the new commission and its new director.

The need to ensure value for money in respect of all Exchequer spending goes without saying and no one is in a position to dispute that. Deputies will know, however, that the issue of inadequate resources was highlighted as part of the review of the current system. A key element of the submissions made by various stakeholders when the draft Bill was in its early stages and subject to public consultation concerned the provision of a dedicated resource to the new commission. For example, I examined a submission made in 2014 by the judicial appointments review committee in which the committee stressed the importance of adequate resources to enable the new appointments body to carry out its functions. The committee, like my office, frequently receives correspondence from various stakeholders in this area commenting on the need to ensure there are proper and adequate resources in place. More often than not, we are subjected to criticism for a dearth of a resources.

I draw members' attention to the Dublin declaration issued by the European Network of Councils for the Judiciary in May 2012 in which the network underlined the importance of resources in the following statement: "The body in charge of the selection and appointment of judges must be provided with adequate resources to a level commensurate with the programme of work it is expected to undertake each year and must have independent control over its own budget, subject to the usual requirements as to audit."

I understand the GRECO evaluation team has been in contact with the committee. In its fourth round evaluation report on Ireland in 2014, the team stressed that the new, more profound, selection procedure for the recruitment and promotion of judges needed to be provided with what it described as appropriate resources.

I listened carefully to Deputy O'Callaghan's comments on this matter. The programme of work to be undertaken by the new commission under the Bill is significant when compared with the current arrangements under the Judicial Appointments Advisory Board, JAAB, system. These arrangements are resourced from within the Courts Service, with attendant and related costs subsumed in the courts Vote. It is important that a budget and adequate resources are provided to the commission, that it is independent and that the director and other members of the new body do not feel in any way restricted or compromised in the manner in which they undertake their business.

As I pointed out in response to remarks made during Second Stage, the replacement of the JAAB with a new commission will represent a modest but much needed investment to bring the system into the 21st century. While I accept Deputy O'Callaghan's point that there may not be a large number of appointments annually, each appointment is of vital importance and could attract scores of applications. Furthermore, the making of appointments is not the only business the commission will undertake. The Bill also tasks it with a significant research, development and consultative role to ensure the State has in place and maintains a model of best practice for the selection of members of the Judiciary. The commission must be kept up to date with and abreast of national and international best practice. A specialist body of this nature will generate a small staffing requirement and needs adequate resources to function effectively.

For the reasons outlined, I am not in a position to accept the amendments, which would have the effect of deleting all references to the office of the new commission and its proposed director. This would create a fundamental flaw in the legislation before the office had an opportunity to function.

Deputy Jack Chambers

I thank the Minister for his response. Is this change worth a 200-fold increase in the current funding arrangement? The Judicial Appointments Advisory Board, JAAB, has a budget of only €5,000, whereas the proposed commission will have a budget of €1 million. Is a 200-fold increase in funding for the work the Minister describes proportionate? No one would argue it is proportionate.

The commission will appoint a small number of judges. The funding and other arrangements the Minister proposes amount to a complete bureaucratisation of the Civil Service. Why can existing resources, for example, staff of the Courts Service or Department, not be transferred to the new office? The proposal to create such a layered structure is excessive. The Minister's party expressed pride in abolishing quangos, yet it proposes to create another large quango. It is proposed to increase the current budgetary allocation for judicial appointments by a multiple of 200. Other areas of government and the public service require an increase in funding. This proposal is excessive and does not correspond with the logical funding arrangements the Minister set out a moment ago.

Research and development will not cost 200 times the cost of €5,000. I am worried by the funding changes proposed by the Minister in terms of this Civil Service change in the context of other changes within his Department. For example, the Gambling Control Bill requires significant funding but it has been kicked to touch by his Government. To propose increasing by 200 times the existing amount for the appointment of ten or 11 judges, on average, is completely excessive. In my view, the proposal cannot be accepted. That is why the amendments put forward by Deputy O'Callaghan for a secretary and utilising, for example, the Courts Service or the Department to administer the scheme would be far more appropriate and a better use of State resources. It is well and good to mention the need for effective research and development but that is the classic speak around the bureaucracy of quangos. The funding arrangement for the office would only continually grow beyond the proposal of 200 times the cost. That is why I think the amendments proposed by Deputy O'Callaghan are proportionate to the work that the commission will actually do. The proposal by the Minister is completely excessive and illogical and that is why it is more prudent to take on the amendments that we have proposed. I do not think anyone can justify in any area of the Civil Service increasing a cost by 200.

Deputy Clare Daly

Deputy O'Callaghan has made a compelling argument for the amendment. It is a fairly straightforward body. If we were talking about a judicial council body then there would be staffing implications and a big volume of work to be done that is not being done now. I do not see such implications for the present proposal. Since 2002, there have been 90 appointments to the three superior courts or an average of just over six appointments per year. Such a workload does not require a permanent office, a director or that type of resource. As the Minister has said, the office would have a significantly bigger workload than the present arrangement. I would like his view explained as I do not see any basis for his claim. I do not know where the hundreds of applications will come from if they do not exist now because all we are changing is the method of appointment.

There will not be research into the whole structure of the Judiciary. The research element is just for judicial appointments, which is not rocket science. There are examples available from other jurisdictions. One analyses the nearest peer reviewed study and says, "Sure maybe we can make that a bit better." The work does not require a permanent office. I had not noted the points in our amendments and it is something that we bypassed. The arguments that have been made are pretty strong. As things stand, I support the amendments.

Deputy Mick Wallace

Likewise. We all want a better system for the appointment of judges and one that is clean, transparent and accountable. Sometimes people confuse bureaucracy with good regulation. One does not need more bureaucracy to have good regulation and practice. Members confuse the two dimensions a lot of the time in the Dáil.

In the normal run of things if a Deputy made the same proposal it would not reach Committee Stage because it would be ruled out of order by a money message before it even got here. I am conscious of the fact that I have heard the now Taoiseach, Deputy Leo Varadkar, speak a lot about this matter over the past couple of years. I am very much in agreement with him that we probably have too much bureaucracy and too many quangos, which should be tackled. We need to do things efficiently and cleanly but that does not mean more bureaucracy and quangos.

Deputy Donnchadh Ó Laoghaire

Like the Minister and most Deputies, I have approached many of these amendments with a relatively open mind. I take the point that Deputy Wallace made about a money message. It is a ridiculous procedural rule that Deputies outside of the Government cannot bring amendments that bring a charge on the Exchequer.

I am always suspicious of the arguments made for quangos and public policy because, very often, the attitude that people take to a quango depends on the work done by the quango. To be honest, a lot of the debate comes from a very right wing view of the State and public-funded bodies. Sometimes some of the rhetoric can be unhelpful and not directed at the purpose that a particular body can do. That said, an argument has been made that the difference in the cost of the existing process and the proposed one is fairly considerable. Is it possible to estimate how much the work costs the Courts Service specifically at this moment in time? Obviously the sum of €5,000 does not cover the work that is being done and the cost is subsumed within the budget for the Courts Service. Has the Minister a rough idea of how much the work costs the Courts Service?

Chairman

Go raibh maith agat, Deputy Ó Laoghaire. As no other Deputy is offering, I ask the Minister to respond.

Deputy Charles Flanagan

As a member of Government, I am very conscious of the need to ensure that there is value for money, not only on these issues but across Government. I find it difficult to accept the basic premise of Deputy O'Callaghan's amendment when he said that the entire cost of the current regime is €5,000. I would imagine that a couple of advertisements in a newspaper would amount to €5,000.

Deputy Jim O'Callaghan

What is it supposed to cost?

Deputy Jack Chambers

Can the Minister answer Deputy's O'Callaghan's question?

Deputy Charles Flanagan

I fail to see that that is the entire cost-----

Deputy Jim O'Callaghan

The Minister knows so tell us.

Deputy Charles Flanagan

-----of running the current process.

Deputy Jack Chambers

Does the Minister know the cost?

Deputy Charles Flanagan

I have certainly formed the view that it is more than €5,000.

Deputy Jack Chambers

The Minister does not know the cost.

Chairman

Deputies, the Minister is speaking and he has the floor. The question has been posed already. I have no doubt that the Minister will reply when he is in a position to do so.

Deputy Charles Flanagan

The Deputies have said that the entire cost of the current process is €5,000. I find that very difficult to accept and, in fact, I do not believe that is the case. The cost is considerably more than the sum of €5,000.

In any event, this is a completely different structure. It is a completely different body. It is a body that is empowered in a way that the current Judicial Appointments Advisory Board, JAAB, is not. For example, the body will have to engage in the setting out of models of recruitment. It will have to embark upon selection testing.

One of the criticisms of the current judicial appointments procedure is the fact that over the years, since the operation of JAAB, not one interview has taken place even though it is catered for in the legislation. I would be confident that the situation will change under the new structures, that there will be an interview process and models of selection testing designs. I am confident that there will be an office albeit modest in form. The indicative spend is something in the region of €1 million. That may well not be the case but I would expect that it would be in or about that sum, and probably less.

I have to stress yet again the importance of adequately resourcing a body that will be charged with new responsibilities, new powers, new functions and a new role. We will be changing, in a fundamental way, the method of appointing members of the Judiciary. It is not unreasonable that the new commission should be adequately resourced. In fact, we can look back on a number of pieces of legislation that have passed through this committee in recent times, and in more distant times, where members on all sides repeatedly castigated the Minister for setting up new structures with new authorities, roles, functions and powers but then said they are no good without the resources.

Now an estimate has been given on the matter of resources to ensure that the new office would not be hamstrung in terms of its remit. At the first hurdle, we are faced with amendments that will completely change the structure of the new body, which to my mind will do it a fundamental disservice.

Of course, there will be an arrangement to ensure that any moneys or resources are audited. It is important at this stage that we would be in a position to estimate the level of funding that such a new body might require.

On the current cost, it is the Courts Service that offers the support services and that in effect discharges funding in respect of the Judicial Appointments Advisory Board, JAAB. I believe it is unfair to say that the entire cost associated with that body is the sum that has been put forward by the Deputies. To suggest that we will exceed current funding by 200 times that amount is not a fair and adequate reflection of reality.

Deputy Jim O'Callaghan

The question I wish to put to the Minister is the current cost per annum of the Judicial Appointments Advisory Board. The reason that I put out the figure of €5,000 is that it was my recollection of a report in the Sunday Business Post a number of months ago which reported that the expenses of the Judicial Appointments Advisory Board last year was in the region of €5,000. I could be wrong - it was just a report in a newspaper. I ask the Minister for Justice and Equality to inform members of the current cost of the Judicial Appointments Advisory Board. If the Minister does not have the information to hand, I ask that it be provided to the committee secretariat subsequently.

How many people will be employed in the judicial appointments commission? How many people should be employed? The Minister said he was at a loss to understand the logic of the amendments tabled. The reason I tabled amendments is that I have a vision of what will happen three years from now in the justice committee. The Minister for Justice and Equality will have probably a higher job than his current role as Minister. The judicial appointments commission will be making a presentation to the committee, at which the director and staff will be present. They will have glossy publications. That quango will cost €1 million a year. As we know quangos only get more expensive. Unless we structure it properly on Committee Stage, it will get out of control.

The Minister stated that the current Judicial Appointments Advisory Board performs its function very well. If it does this work for a figure in the region of what I believe it to be, then the proposal to increase that spending up to €1 million per annum is not justified.

Deputy Charles Flanagan

In terms of actual expenditure on or on behalf of the current Judicial Appointments Advisory Board, the money comes from the Courts Service. It is not effectively expenditure that is accountable in the Justice and Equality Vote. I am sure I will be in a position at an early date to provide the Select Committee with a breakdown of costings from the Courts Service. I would be very surprised if it is within an envelope of €5,000. I will come back to the committee on that.

In respect of staffing of the judicial appointments commission, we are dealing with the office of a director, which will be a director and a handful of staff, approximately three support staff, and with related expenditure one is looking at a figure in the region of €700,000.

Chairman

If there are no other members offering, this will conclude the contributions on this grouping of amendments. I am obliged to address amendment No. 1 to section 2.

Is amendment No. 1 agreed?

Deputy Jim O'Callaghan

No. It is not agreed.

Chairman

Is the amendment being pressed?

Deputy Jim O'Callaghan

Yes.

Chairman

As full membership of the committee is not present, under Standing Orders we are obliged to wait eight minutes before proceeding to take the division.

Amendment put:

The Committee divided: Tá, 4; Níl, 4.

Tá

• Chambers, Jack.
• Daly, Clare.
• O'Callaghan, Jim.
• Wallace, Mick.

Níl

• Brophy, Colm.
• Flanagan, Charles.
• McLoughlin, Tony.
• Ó Caoláin, Caoimhghín.

Amendment declared lost.

Chairman

Where there is an equality of votes, the Chair has the casting vote. Amendments Nos. 2 to 6, inclusive, 11 and 69 are related and may be discussed together.

Amendments Nos. 2 and 3 not moved.

Deputy Jim O'Callaghan

I move amendment No. 4:

In page 8, line 23, to delete “, and has never held,”.

This relates to the definition of a layperson. The amendment seeks to remove from the definition of "lay person" a person who previously held judicial office. At present the Bill states:

“lay person” means a person who—

(a) does not hold, and has never held, judicial office,

The amendment would remove “, and has never held,”. From the way the legislation is drafted, members will be aware that individuals who are perceived as being non-lay are not eligible for it. When it comes to the recruitment and appointment of lay people, ex-judges are expressly excluded. That means peoples such as Ms Justice Mary Laffoy, Mrs. Justice Susan Denham, Mrs. Justice Catherine McGuinness and Mr. Justice John Murray, who would be very good on advising the commission as to who would be suitable persons for appointment to the Judiciary are expressly excluded from it. I think it is unfair that they are expressly excluded from it.

Amendment No. 5 is in a similar vein. It seeks to delete certain wording in subsection (c) of the definition of lay person. It seeks to remove the wording “, and in the relevant period specified by subsection (2) for the purposes of this paragraph, was not [a practising barrister or solicitor],”. It should simply state that practising barristers and solicitors are not eligible because they will not be regarded as lay people. However, to go further and maintain that somebody who previously was a barrister or solicitor is excluded is nonsensical.

In response to the earlier amendment the Minister said he was at a loss to understand the logic of my amendment. Similarly, I am at a loss to understand the logic of excluding people who have expertise from this commission. The Bill specifically excludes retired judges and people who formerly were lawyers. Just because they were formerly lawyers does not mean they are currently lawyers. As I mentioned in the Dáil, nobody would call the Minister, Deputy Ross, a stockbroker. The fact that he was a stockbroker does not mean that he is a stockbroker. There is no reason to exclude somebody who previously practised or worked as a barrister or solicitor.

Amendment No. 6 is in the name of Deputy Clare Daly. Was that the one that was ruled out of order?

Chairman

No.

Deputy Jim O'Callaghan

Will I continue with mine or will we deal with amendment-----

Chairman

The Deputy should proceed with the grouping. Amendment No. 6 is in the name of Deputy Clare Daly and amendment No. 69 is in the name of Deputy Wallace.

Deputy Jim O'Callaghan

Amendment No. 11 seeks in page 8 to delete lines 34 to 36, and in page 9, to delete lines 1 and 2. That is for the purpose of removing what is the definition of the relevant period.

The legislation as drafted stipulates that a person cannot have been a barrister or solicitor in the period of 15 years immediately preceding the latest date on which he or she may apply. Again I believe that is unnecessary. If we are trying to include lay people, the legislation should simply state they cannot be a judge, barrister or solicitor. However, it is unnecessary to stipulate that they cannot be a former judge, former barrister or former solicitor.

That is the purpose of amendment No. 11.

Amendment No. 69 is Deputy Wallace's, but I have spoken on my amendments in the second grouping tranche.

Chairman

I thank the Deputy. For members' information, they can speak to all amendments in any of the groupings irrespective of whether the amendments are theirs. At this point, only Deputy Brophy is indicating. Would he like to speak before the Minister responds or would he like to hear the Minister first?

Deputy Clare Daly

Are we not taking all of the amendments in this grouping?

Chairman

Yes, of course. Just like the previous grouping, members waited until after they had heard the Minister's response to the first contribution. It is open to Deputy Daly to decide whether she wishes to speak now to her amendment. She can speak again after the Minister replies. It is entirely-----

Deputy Mick Wallace

That makes sense.

Deputy Clare Daly

Okay. I will not be restricted from speaking again.

Chairman

The first to indicate was Deputy Brophy. Would he like to hear the Minister's reply first?

Deputy Colm Brophy

I have a small comment to make, after which I will let the Minister speak.

Chairman

Please, by all means.

Deputy Colm Brophy

I object to what Deputy O'Callaghan outlined. There is a certain amount of wanting to create "Lanigan's Ball" out of this, with "I stepped out and she stepped in again". It is not feasible or reasonable that someone could step down from a post only to be reclassified immediately as a lay person and return in a different role.

To pick up on Deputy O'Callaghan's opening point, no one would call the Minister, Deputy Ross, a stockbroker. However, if he applied for a job the day after he left his current one, people would say that. The spirit of the proposal is to have a real lay involvement - not just Judiciary and ex-Judiciary cosily and collectively examining something, but to broaden the base far beyond that. There is an underlying idea in many of the objections to this proposal that the only people who have the expertise to do this job can only come from one section. For that reason, I disagree with Deputy O'Callaghan's amendments.

Chairman

Other members would like to await the Minister's reply. Would he like to take the opportunity now to address not just Deputy O'Callaghan's amendments, but the grouping?

Deputy Charles Flanagan

The overall purpose of these provisions is to exclude from the definition of "lay person" a person who is currently employed in the service of the State in a role where it was a requirement to have been a practising barrister or solicitor. I am not inclined to accept that there is any need for this refinement of the definition. I am satisfied that the definition is sufficiently wide to encapsulate any person irrespective of whether he or she is a member of the forces mentioned in Deputy Sherlock's unmoved amendment or a member of the Civil Service, and that any such person will not be considered to be a lay person in the context of the Bill and to be in a position to be appointed as a lay member of the commission.

Amendment No. 4 in the names of Deputies O'Callaghan and Chambers seeks to delete the provision that a lay person shall not have held any judicial office. I thank the Deputies for their amendment. Its purpose seems to support a later amendment on behalf of the Deputies relating to the designation of the chairperson of the commission. We are not discussing the substantive matter of lay chairing or, indeed, lay composition of the commission per se in this grouping, but I cannot accept an amendment that has as its objective the inclusion in the definition of "lay member" a person who has formerly been a judge.

Amendment No. 5 seeks to amend the definition of "lay person" and would have the effect of allowing, in conjunction with amendment No. 11, that a lay person shall not be a practising barrister or solicitor. I cannot accept this amendment. A reading of the section will show that it has been carefully structured to allow a lay person who was practising as a barrister or solicitor in a period of 15 years or more prior to the appointment to be considered to be a lay person. On balance, this is a proportionate provision and appropriately reflects what I believe to be an accepted sense of what we mean by "lay person". I would have thought that one of the requirements for someone to fulfil the definition of a lay person would be for him or her to be a non-legal person. That is the import of the legislation. A lay person cannot just have been a practising solicitor or barrister. That would not be in keeping with the careful balance around which the commission is structured.

It is my belief that, when we refer to lay people, we are discussing people who are separate and distinct from the legal profession. Some people could regard section 2(2) - "The relevant period for the purposes of paragraph (c) of the definition of "lay person" in subsection (1) is the period of 15 years immediately preceding the latest date on which a person may apply to participate in the selection process" - as unduly harsh. In the circumstances, it represents a balance on the basis of what we might consider to be a lay, or non-legal, person.

I would rather not respond to amendment No. 6 in the name of Deputy Daly until after I have heard from her unless the committee desires otherwise.

Chairman

Would the Deputy like to discuss it now? I beg her pardon - I believed that she might have wished to have heard the Minister's response to the proposition first.

Deputy Clare Daly

I do not mind. The Chair made that decision. The Minister can carry on.

Deputy Charles Flanagan

I am sure that Deputy Daly will contribute in any event if I in some way misinterpret or misconstrue the import of her amendment. Its purpose seems to be to insert into section 2, which deals with definitions, a modification of the definition of "lay person" to allow for nominees to the commission from FLAC and the ICCL to be considered as lay persons. This relates to amendments Nos. 33 and 34 in the name of Deputy Daly. They seek to modify the membership of the commission in section 12 by replacing two of the six lay members with nominees of the ICCL and FLAC instead of having the members recruited through the Public Appointments Service, PAS.

I have a difficulty with amendment No. 6 in so far as the strategy for selection of the lay members in the Bill is to have them selected independently and professionally by the PAS in accordance with their experience and expertise, which are criteria set out in section 12. The reasonable intention is to get as wide as possible a mix and coverage of the desired skills and experience among the cohort of lay members who might be appointed. The PAS will be selecting from a wide pool of potential applicants, including people who have experience in the organisations referred to by Deputy Daly. It is open to them to apply should they deem it appropriate or desirable. The application process would not just be open to the organisations named in the amendment, but also to similar organisations working in like fields.

The PAS will use the selection process to screen the suitability and experience of candidates in a way that would probably not be done in a nomination process.

We have sufficient experience, either at Government level or at Houses of the Oireachtas level, for us to be assured that when it comes to the appointment of persons who are recommended by the Public Appointments Service, PAS, they will have been carefully and independently selected. Having said that, I do not wish to deny the relevance of the expertise or the experience that people from the organisations referred to by Deputy Daly would bring to the table in the new commission. On balance, I believe that categories of expertise and experiences as set out in section 15 of the Bill, as requisites for what we describe as lay members, adequately cover these areas. I appreciate what Deputy Daly is doing here and I acknowledge the well-intended nature of the amendment, but it may well be too narrow.

Deputy Clare Daly

The Minister is correct that my amendment is contingent on other amendments. I will not go into all the arguments on that now, but the Minister is correct that we have a huge problem in the way in which the overall lay person representation is being administered by the PAS. The sort of criteria that is laid down is very much destined to pack the commission with senior civil servant types. They do not have the necessary diversity or skill sets. Particular types of skills such as commerce and finance have been mentioned. We have a number of amendments to change these criteria.

One of the ideas we have, upon which we are not too fixed as it was a little bit of a rush job to get the amendments in at the end, is for a mix of lay people to be considered. A change of criteria could be made around the lay people and some of the commission members could come from representative bodies, such as the Irish Council for Civil Liberties, ICCL, the Free Legal Advice Centres, FLAC and the Irish Human Rights and Equality Commission. A split like this could be made. We will park that argument for now, even though it is linked, but we will make the argument strongly later on.

In the event that it was agreed that FLAC and the ICCL would be a representative or nominating body for a lay person, this amendment provides that those appointees would not be precluded from being deemed to be a lay person if they had a legal background, given that it is very likely that someone working in FLAC or the ICCL, for example, may have some type of a legal background. The amendment was a way for NGO nominations not to be prohibited because they had a legal background. It is open to change.

I had a certain sympathy for a number of the broader points made by the Minister in replying to Deputy O'Callaghan's amendments on barristers, solicitors and so on.

Deputy Donnchadh Ó Laoghaire

I wish to respond to Deputy O'Callaghan's amendments. The point was well made by Deputy Brophy. Whatever about the 15 year bar, with the amendment as currently drafted it would be possible for a person to leave the legal profession on Monday and be deemed a lay member on Tuesday. I believe this is problematic. While I am not necessarily convinced, I am open to the idea of revising the 15 year limit downwards. I would consider that, if such an amendment was tabled. The possibility that a person could immediately be deemed a lay person is wrong and I do not think it works.

I very much support the principle and the ideas behind Deputy Daly's amendment. I have tabled similar amendments such as amendment No. 50. Even though I have not named them specifically, FLAC, the ICCL and the Irish Human Rights and Equality Commission are the type of organisations I have in mind. It is important that we strive to have organisations with their perspective and expertise reflected and represented among the lay people on the commission.

Chairman

Before going to Deputy O'Callaghan does Deputy Wallace, who has tabled an amendment within the grouping, wish to contribute?

Deputy Charles Flanagan

That would be amendment No. 69.

Deputy Mick Wallace

I am perfectly happy to listen to the Minister first. If he would rather that I spoke first then I will.

Chairman

In that case, we will deal with that amendment and I will come to Deputy O' Callaghan directly after.

Deputy Charles Flanagan

I am open to further consideration of the issues Deputy Daly has raised on the matter of the categories of members of the commission. In section 15 of the Bill, which deals with the selection categories, there is specific reference in subsection (7) to the categories of people having experience in human rights, equality or issues concerning diversity among members of society; commerce, finance or administration, including public administration; board membership and corporate governance; and professional dispute resolution or mediation activities.

We will undertake to give the matter further consideration but I do not want to form the view that we are immediately or implacably opposed to the points raised. I do not want to act in any way that might be exclusive of certain or other organisations.

This brings me to Deputy Wallace's amendment No. 69, to section 15, which requires PAS, when recommending persons for appointment as laypeople on the commission, to have regard to matters of gender equality and population diversity. I agree with Deputy Wallace that some consideration needs to be given in this regard. I am anxious to look at other legislation. For example, the Act providing for the setting up the Irish Human Rights and Equality Commission has a specific reference to gender equality. Let us look at that legislation to see if we can agree something for Report Stage. The Irish Human Rights and Equality Commission Act 2014 states:

In making recommendations for appointment of persons to the Commission under this section, the Service, and the Government shall have regard to the need to ensure that the members of the Commission broadly reflect the nature of Irish society and that such persons possess knowledge of, or experience in... matters connected with human rights...

If we agree to look at a similar provision on Report Stage, which I believe would meet the import of Deputy Wallace's amendment, it would also address many of the issues referred to by Deputy Daly in this group of amendments and later on in the Bill. If Members consider that the 15-year bar is unduly restrictive or draconian, we could look at it also.

With regard to amendment No. 4 in the names of Deputies Jim O' Callaghan and Jack Chambers, it is very difficult to sustain publicly a popular view as to how a former judge who has practised as a judge in the courts for many decades could be regarded as a non-legal person consequent to their retirement or leaving the Bench. I believe there is a challenge around how they could be immediately described as a layperson.

It is equally difficult to sustain a position that a person who is not currently a practising barrister or solicitor but who was recently engaged full-time in either of those professions could suddenly be regarded as a non-legal person and therefore regarded as a lay person. There is a difficulty there and we need to meet it in a way that ensures public confidence in what we are doing.

Deputy Mick Wallace

I am inclined to agree with the Minister's last point. For example, at the moment if we avail of a former judge to chair a commission - and we are running out of them for commissions of investigation currently - we still regard them as being legal. If they are a former judge, we assume and we see them more on the legal side than on the lay side. I would agree with the Minister's point in that respect.

On amendment No. 69, I was a bit surprised that my amendment was put in this group of amendments, although there is a link with Deputy Daly's amendment. From my point of view they are actually linked to other amendments that I have tabled. Amendment No. 69 provides that the Public Appointments Service, PAS, should have regard to "... the objective that the membership should comprise equal numbers of men and women". That may be a consideration in the overall commission, including lay and legal members. This part of the amendment is pretty self-explanatory and it ensures that we try to have equal numbers of men and women as lay members. The second part of the amendment says that consideration should also include "the objective that the membership should reflect the diversity within the population as a whole”. That is very broad and I have dealt with it more specifically when dealing with other parts of the legislation. I thought those amendments might have gone together.

For example, in section 15(5) there is a provision that when selecting the six lay members for the judicial appointments commission, the PAS will have regard to whether the candidates have knowledge or experience of the matters set out in section 15(7)(a) to (g). Subsection (d) refers to the processes and procedures for making appointments to public office or to senior positions in public or private sector organisations. Subsection (f) refers to board membership and corporate governance. The amendment to propose the removal of subsections (d) and (f) was drafted to remove any requirement or desire by PAS for candidates to have experience in public sector appointments, board membership and corporate governance, with a view to broadening the potential for the PAS to pick outside of the usual career civil servants or retired civil servants who would be likely to have experience in these areas. This would encourage as broad and diverse an approach as possible by the PAS rather than restricting the PAS only to candidates who have such experience, and it would minimise the potential for public sector groupthink within the commission.

We do not want the commission to be stacked with civil servants. The Minister, Deputy Ross, was at pains to tell Deputies that one of the driving desires behind this Bill was to depoliticise the selection of judges but I am afraid that it could make it even more politicised. If the lay members of the commission are going to be creatures of government, and we would argue civil servants tend to be such creatures, then the powers of government may be strengthened in how judges are to be selected.

The judicial appointments commission is unique and would be best served by a diverse membership with a dynamic and innovative approach to decision making. The inclusion of lay members with little or no experience of public sector appointments processes or board memberships would be preferable. This is also the reasoning behind the amendment affecting (e), which is amendment No. 67, to remove reference to public administration and to include civil society and trade union activity. I understand that we will deal with this amendment later on. This would encourage the PAS to cast the net wider for lay members from these backgrounds rather than seeking lay members from the finance, commerce and public administration sectors as is currently proposed in subsection (e) drafted by the Government. I argue that this would avoid and move away from the amount of political influence in how judges are appointed. I believe that taking this approach will be positive.

Deputy Jim O'Callaghan

I want to ask the Minister about retired judges. I am aware that the programme for Government has said there would be a lay majority and a lay chairman of the commission but perhaps the Minister will give his own personal and political opinion. Does he think it is a good idea that retired judges are excluded from membership of this commission? Consider the fact that we go to retired judges to chair commissions of investigation - as Deputy Wallace has said - and we go to retired judges to ask them to chair tribunals of inquiry. One would think that they would be qualified for this role and would be good at assessing who would make a good judge. I would appreciate if the Minister did not say what is in the programme for Government. I am asking him for his own political and personal view; does he think it is a good idea that his legislation expressly excludes retired judges from membership of a judicial appointments commission?

Chairman

When the Minister is responding will he please address also Deputy Wallace's contribution?

Deputy Charles Flanagan

Yes. I will respond to Deputy O'Callaghan first. My political views are entirely in accordance with the programme for Government, as a Member of the Government that agreed the programme. This legislation is an important component of the programme for Government. It is challenging to sustain a position that a member of the Judiciary who for one reason or another steps down from that role can suddenly be categorised as a non-legal person. This is a challenge for public perception. I take the point made by Deputy O'Callaghan about retired judges serving the public well after their retirement. It is fair to say that if one looks across the current panel of retired judges in Irish society most of them are actively engaged in some form of commission of investigation or other. The matter of their appointment is associated with their careers as judges. From time to time they are described as a retired, eminent, legal figure or a retired, eminent member of the Judiciary. There is a difficulty in regarding these retired judges as laypersons or non-legal persons. Where Deputy O'Callaghan's amendment is concerned, this perception presents us with a difficulty. I believe that it is hard to sustain a view that having served the State well for decades a retired, eminent judge can suddenly be regarded as a layperson or a non-legal person. It is hard to sustain that view and I would have a difficulty in that.

With regard to Deputy Wallace's amendment, I will look at it again. The Deputy made references to other matters in the latter part of his contribution that I will address later. I will not detain the committee now as we will come back to those issues later in the debate. We are currently discussing amendment No. 69 and I do not disagree at all with the intention of the Deputy. I will look at a similar type of construct in other legislation such as the Irish Human Rights and Equality Commission Act 2014 which I have already mentioned.

In fairness to the Bill as drafted, we have made specific reference to ensuring that the Public Appointments Service considers certain matters, which I believe are robust and meet most of the concerns of Deputy Wallace. In regard to the concerns that are not met, I will consider them between now and Report Stage.

I do not disagree with the intention behind his amendment. I do not want to be unduly restrictive either. Deputy Clare Daly's amendment No. 6 is still under consideration. I am trying to be helpful. I came to this meeting with an open mind and I am listening to the views of members with a view to improving the legislation. If I were to accept the import of Deputy Daly's amendment, we could be faced with a proposition that if the nominees of a number of organisations that are mentioned happened to be lawyers, I do not believe we can therefore automatically regard these people as being lay members of the commission. In terms of the objective, what we want to do is the same but we need to do that without being unduly restrictive or without having consequences that are not intended by the amendment.

I will not accept the amendment but I will look at the issues raised by Deputies Daly and Wallace in the context of Report Stage, having regard to the points they made with which I do not disagree.

Chairman

Is amendment No. 4 being pressed?

Deputy Jim O'Callaghan

Yes.

Amendment put and declared lost.

Deputy Jim O'Callaghan

I move amendment No. 5:

In page 8, lines 26 and 27, to delete “, and in the relevant period specified by subsection (2) for the purposes of this paragraph, was not,”.

Amendment put and declared lost.

Chairman

We now come to amendment No. 6. I am sure Deputy Wallace advised the Deputy that the Minister readdressed her amendment, while she was out briefly.

Deputy Clare Daly

I move amendment No. 6:

In page 8, between lines 27 and 28, to insert the following:

“(d) under this Act, the Chief Commissioner of the Irish Human Rights and Equality Commission appointed pursuant to paragraph (d) of section 12(1) and the nominees of the Free Legal Advice Centres Limited and the Irish Council for Civil Liberties appointed pursuant to paragraphs (i) and (j) of section 12(1) shall be considered lay persons notwithstanding the provisions of paragraphs (a) to (c).”.

Chairman

Is the amendment being pressed?

Deputy Clare Daly

No. I propose to withdraw it. As it is linked to a bigger issue, I propose to return to it on Report Stage.

Amendment, by leave, withdrawn.

Deputy Jim O'Callaghan

I move amendment No. 7:

In page 8, to delete line 29.

Chairman

Is the amendment being pressed?

Deputy Jim O'Callaghan

Yes.

Amendment put and declared lost.

Chairman

Amendment No. 8 is grouped with an extensive list of amendments for the purpose of debate. Amendments Nos. 8, 84, 85, 162 to 172, inclusive, 175 to 179, inclusive, and 181 to 183, inclusive, may be discussed together. I remind members who wish to offer any further opinion on the grouping to please do so.

Deputy Jim O'Callaghan

I move amendment No. 8:

In page 8, to delete line 30.

This grouping concerns the structure within the judicial appointments commission and how it proposes to operate. Under the legislation as drafted there will be a series of committees. Amendment No. 8 seeks the deletion of the definition of "Procedures Committee". Subsequent amendments, to which we will come to consider presently, seek the deletion of other committees that are referred to in the Bill. The purpose of the amendment is to try to make the statutory process much simpler. As I mentioned in respect of the first amendment, there is only a series of limited appointments upon which the commission will be asked to advise each year. As I mentioned earlier, the Judicial Appointments Advisory Board, JAAB in its 2016 report advised of its work on eight positions. In the 2015 report there were 11 appointments arising from the work of the Judicial Appointments Advisory Board.

The Bill proposes a structure of a "Procedures Committee" and separate committees for each individual court. There will be a District Court committee, a Circuit Court committee, a High Court committee and committees for the other courts. My view is this will make the process unnecessarily complicated. It is important to have one group of people who are assessing the applications that come in. I do not think it is necessary to have separate committees to consider separate applications. The committee may think that a candidate who has applied for a Circuit Court position may not be suitable for that position but would be suitable for a position in the District Court, for which he or she also may have applied. In the circumstances, putting in this architecture of different committees is making the process much more complicated.

Amendment No. 8 seeks the deletion of the definition of "Procedures Committee". The next amendment in the group, No. 84, is in the name of Deputy Wallace but I do not know if Deputy Wallace wants to deal with it now or if he prefers, I can continue with my next amendment.

Deputy Mick Wallace

Deputy O'Callaghan should continue.

Deputy Jim O'Callaghan

Amendment No. 85 is tabled by Deputy Sean Sherlock.

Chairman

Amendment No. 85 is in joint names - Deputy Sherlock and Deputy Wallace so it can be moved.

Deputy Jim O'Callaghan

Amendment No. 162 is an amendment to section 53, which refers to submissions or observations at request of the procedures committee. We are seeking the removal of the words "the Procedures Committee" and the substitution of "Commission". The commission will be doing this work as opposed to the procedures committee and that is the purpose of amendments Nos. 162 to 172, inclusive, in my name. Deputy Jack Chambers and I also seek to delete the references to committees and just have the commission fulfilling one function. In amendments Nos. 175 to 179, inclusive, to section 55, we are seeking to delete the references to committees and just have the commission fulfilling one function. In the further amendments Nos. 181 to 183, inclusive, to section 58, we seek to do the same thing, namely, to get rid of the procedures committee and just have the responsibility in the legislation as a responsibility of the commission, rather than the procedures committee. I think it will be easier that way. I do not think a body of this size, which has a limited amount of work, needs to break itself into different committees. It will make the process more complicated and bureaucratic. It will make the function more difficult for the commission to perform and for that reason I think we should get rid of the architecture which has the procedures committee. The commission should be responsible for all the functions in the legislation.

In substance, it will not change the thrust of the legislation because all the functions that are specified in the Bill as being functions to be performed by the procedures committee will be functions that will remain but they will be functions that will have to be performed by the commission itself rather than by a separate committee.

Chairman

Would Deputy Wallace like to address his amendments at this point?

Deputy Mick Wallace

My proposed amendments are amendments Nos. 84 and 85 which are in this grouping of amendments. Their purpose is to remove the notion that the chair has to be a layperson. We are proposing a situation in which the chair will be picked by the committee. There is too much focus in the Bill on always having a lay majority. For example, the proposed amendments to sections 18(5), 19(2) and 19(5) propose to remove the requirement that the quorum be made up of a lay majority and that the procedures committee and any other sub-committee have a lay majority. There may well end up being a quorum with a lay majority and a procedures committee and a subcommittee with a lay majority but I do not see the need to require this in advance in legislation.

The Bar Council submission refers to the committee of Ministers of the Council of Europe and its statement that the procedure for the appointment of judges should be transparent and independent in practice. The authority taking the decision on the selection and career of judges should be independent of the Government and the Administration. In order to safeguard its independence, rules should ensure that its members are selected by the Judiciary and that the authority decides itself on its procedural rules. There is deliberately too much focus in the Government's approach, both publicly and in these kinds of legislative amendments, on promoting a populist lay-versus-law tension which serves the Government well in distracting the media and public from the fact that Government control of judicial appointments may be strengthened by this Bill. The lay-versus-law focus in these sections also seems to have the aim of polarising membership of the commission.

Chairman

Would the Minister like to address this grouping of amendments?

Deputy Charles Flanagan

This grouping of amendments reflects a desire on the part of members of the committee to remove the commission's procedure committee from the machinery of the Bill. The purpose of amendment No. 8 is to delete the definition of the procedures committee in section 2 of the Bill. Several amendments are directly related. Many of these are drafting amendments in the group. I note that section 19 of the Bill is opposed, which is the section of the Bill that sets up the procedures committee. The main effect of these changes, if they are to be favourably considered, is to remove from the Bill the process relating to the procedures committee but to retain the functions the Bill envisages the procedures committee would have and to assign these features or functions to the commission.

Related amendments have the effect of removing sections 53(1), 55(1) and 55(2) which are the requirements of the procedures committee to consult with court presidents in respect of specified matters which are the subject of Part 8 of the Bill. It is assumed the changes sought relate to amendments that separately have the effect of conferring membership of the commission on all court presidents, including the Chief Justice. Amendments Nos. 168 and 178 also seek to remove particular interactions between the commission and the procedures committee in sections 55 and 57(4) which would not arise as a result of the removal from the Bill of the general provisions relating to the procedures committee.

Amendments Nos. 179 and 180 would remove from the review and recommendations functions set out in Part 8 matters relating to the administrative support provided by the office of the commission as envisaged in section 58(1)(a)(iv) and section 58(4)(d) respectively. These amendments relate to further amendments that separately remove from the Bill the provisions relating to the office of the judicial commission and the director as provided under Part 5, and which we will be discussing separately.

Section 56 is opposed by Deputies O’Callaghan and Chambers. This section provides for the approval by the commission of statements prepared by the procedures committee and this is consequential on amendments sought to Part 8 of the Bill which substitute the commission for the procedures committee in the discharge of functions under that part of the Bill. I am not inclined to accept these amendments.

I will clearly state for the benefit of the committee the central purpose of the procedures committee. This arises from a core provision of the Bill in section 12(2). Section 12(2) provides that the two key general functions of the Commission will be to select and recommend persons to the Minister for appointment to judicial office and for that purpose, to approve a statement of selection procedures and a statement of requisite skills and attributes for inclusion in a published statement.

In the case of the first function, the task of selecting and recommending persons to the Minister for appointment to judicial office is to be performed by the relevant committees under section 10. This aspect of the Bill is not the subject of the amendments that we are currently discussing. The second function is to be performed by the procedures committee established under section 19 to carry out the detail of that function as provided for under Part 8. The immediate impact of the amendments we are now discussing is to remove from the Bill any role for the procedures committee and to provide that the commission fulfils those functions. The commission, as is apparently envisaged by the Deputies under separate amendments, is structured differently from that provided for by the Bill. It is useful to note that the Deputies see the need for the work that is planned under Part 8 and which is part of the dual function nature of the commission. Clearly we disagree on the most effective and appropriate manner of discharging that function.

The second general function of the commission as provided for under section 12(2) is a vital one. The Bill contains immediate adjustments to the appointments structure that has been operating for the past 20 years or so. Under the function we are discussing, the Bill also sets up a new and much needed mechanism to further develop and implement improvements and reforms as the justice and social and economic environments evolve. The process of developing and reviewing selection procedures and requisite skills and attributes is an organic one and one which will require relatively specialised and dedicated attention to ensure best practice is continually rolled out across the judicial appointments function and is regularly reviewed and updated. We only have to go back to the previous amendments and the points raised by Deputies Daly and Wallace, all of which are valid, to see that. It is good that Deputies appear to acknowledge the need for this ongoing development function that is envisaged.

It is very significant that we have a commission working through a procedures committee as provided under section 19 that will have the function of determining in a fully consultative manner, new procedures for the selection of judges and the skills and attributes required of those being selected for recommendation to the Minister. It is the intention that the procedures to be developed by the procedures committee will reflect best practice for professional selection methods and approaches. Given the constantly evolving environment within which the judicial process operates and the constant development of norms and standards nationally and internationally, it is critical to see this important function as not just a one-off task. This feeds into the earlier discussion about the resources being made available to the various components of the commission.

Under Part 8, the committee will have the ongoing role of reviewing the effectiveness of the selection system as well as the effectiveness of the functions assigned to the commission under the Bill. These include such matters as the adequacy of the support resource that the Bill assigns, specifically the commission office and director. We will be discussing later the importance of that support in the context of amendments the Deputies have tabled with regard to those matters.

The policy vision underpinning the establishment of, and assignment of functions to, the procedures committee system is a core element of the Bill and I am not inclined to accept a change in approach here.

The Bill allows for a dedicated structure to support this necessary function and allows for real attention and focus to be given to system review and process improvement. While the emphasis is on best practice, we need a model that can be devised and open to improvements over time.

Part 8 is about a progressive approach to reform, allowing for further development of the selection procedures and informed with reference to best international practice. Under section 19, the procedures committee will be composed of seven members of the commission with a lay majority and a lay chairperson. Its functions are vital. While I accept this would appear to be acknowledged by the Deputies whose amendments seek to retain essentially the function but change the entity performing the function, I cannot agree with that change.

It may be worth looking in a little more detail at what the procedures committee will do under Part 8. It will have two main tasks to perform. First, under section 55, the procedures committee will be required to prepare a statement for approval by the commission, setting out the procedures for selecting persons for appointment and a statement of requisite skills and attributes that the person must possess to be suitable for selection. The Bill requires consultation in respect of this task, including with the courts' presidents. It sets out certain matters the committee should have regard to, including the objective that membership of the Judiciary should comprise equal numbers of men and women, and, to the extent feasible and practicable, it should reflect diversity within the population as a whole, a point stressed by Deputy Wallace in his earlier amendment and with which I do not disagree.

Section 55 provides for certain essential requirements in the area of judicial competence which must be reflected in the statement. These include an ability to conduct proceedings in a manner which ensures the public's confidence in the administration of justice and practical considerations that affect the experience of laypersons in the court system. Before approving or refusing to approve statements prepared by the committee, the commission is required to consult with the Minister. These statements must, under section 57, be published, if approved within 12 months, or 18 months at most, from the commencement of the provisions.

The second key task of the committee is to review the operation of the published statement, the effectiveness of the requirements for selection and the adequacy of functions assigned to the commission, among other matters. It must also report to the commission on the outcome of its review two years after the commencement of the provisions. Any such report may include any recommendation relating to the implementation of the Act. The commission will be required to submit the report and its recommendations, together with any observations it may have, to the Minister.

Colleagues on the committee will acknowledge these are relatively complex tasks given the indicated timeframes. I anticipate the procedures committee will be required to move quite early and provide what will ultimately be a substantial piece of work. The commission working through the relevant committees, as provided for under the Bill, will also need to move early after the commencement of the provisions to address any requests to fill judicial vacancies.

The smaller iteration of the commission in the form of a procedures committee would be more suited to perform the longer-term ongoing function and system development. In terms of good governance, it is critical that a reporting line is in place to ensure the commission will have the definitive say regarding matters concerned. A more nimble, or more relatively specialised, procedures committee reporting, as required, to the overall commission is a structure which allows for effectiveness, delivery, transparency and accountability within the overall governance structure as provided.

I acknowledge I have a different view to the proponents of these amendments as to the structure of the commission. In many respects, it is a separate argument. In terms of the Government's policy, the commission has a particular composition which makes it ideally placed to act at a different level to the procedures committee, to perform an approval function in respect of statements prepared by the committee, as provided for under section 56, as well as the power to modify or refuse to approve such statements.

On a separate matter, I believe the commission should be required to consult with the Minister in this regard as provided for under section 56(3). I note that section is also opposed by several Deputies. I fail to see why that should be the case. The Minister is responsible for the administration of justice and has overall responsibility in the matters of law and policy relating to judicial appointment procedures.

As for the particular composition of the commission for which the Bill provides, it is critical the consultation arrangements between the procedures committee and the courts' presidents are maintained. These would be removed by Opposition amendments Nos. 162 and 168. Given the composition of the commission as provided for, I have a difficulty in accepting these amendments.

One of the outcomes of the amendments we are discussing is that the commission would effectively approve its own statements prepared under section 55(1). That is a further reason it would be illogical for me to accept them.

It is a significant advance to have in place on a permanent basis a commission, part of the remit of which will be to develop fully professionalised selection processes. In the interests of specialisation, transparency, good governance and practical common sense, this task requires the structure as provided for under the Bill. I cannot, therefore, accept the amendments which in effect will remove from the Bill the role of the procedures committee as set out.

Amendments Nos. 84 and 85 in the name of Deputy Wallace seek to remove from section 19(2) and 19(5) the stipulation that the procedures committee of the commission, or any other committee of the commission, should contain a majority of lay members and a lay chairperson, as determined by the commission. The effect of these amendments would mean that neither the procedures committee, which deals with the critical area of designing and setting out selection procedures and processes, nor any other committee would have to reflect the lay majority or lay chairperson composition of the commission. It would probably have the effect of going against the grain of the overall policy approach of the Bill. Will Deputy Wallace reflect on those as I cannot accept them?

Deputy Jack Chambers

This is another example of how the Minister is overcomplicating a relatively simple function. By creating such a layered structure through committees, it will become a costly over-bureaucratic monster.

There are some concerning elements around committees throughout the Bill. Section 55(4) states:

In the preparation of the statements referred to in subsection (1), the procedures committee shall avail itself of the advice and expertise of any consultants or advisers appointed under section 14(7) by the commission to assist it in the performance of its functions.

These committees will have discretion to appoint outside advisers and consultants. At what cost? This is an excessive bureacraticastion provision.

Section 14(7) states:

The Commission may as it considers necessary to assist it in the performance of its functions or the functions of any of its committees—

(a) enter into contracts or arrangements with any person, and

(b) with the consent of the Minister, appoint consultants or advisers.

We have recent history with consultants and advisers in Irish Water. Before we authorise a quango, it is important we put proper limits and thresholds around the discretion to enter contracts with outside consultants and bodies.

This is a simple function which will appoint a limited number of judges. The Minister is creating a massively complicated layered structure which will have the discretion to appoint outside advisers and bodies. At what cost? The Minister really needs to examine what is being created and its potential cost, relative to the function it is meant to be performing. What does the Minister project will be the cost of the advisers and consultants in the performance of the committees' functions?

Why is that discretion being incorporated in the Bill?

Deputy Jim O'Callaghan

I thank the Minister for his response, to which I listened carefully. It indicates how complicated the procedure will be. Even the Minister must accept that the length of time required to provide an explanation to justify the procedures committee indicates that it is excessively complicated. The first amendment in my name and that of Deputy Jack Chambers attempts to prevent the establishment of the committee as it would be too bureaucratic and there would be a mini-empire of directors and so on appearing on radio shows and similar. The Minister has got that. However, he is proposing to set up separate committees within the commission. There will be a report from the procedures committee and another from the District Court committee. There will be a chairman of the procedures committee. Instead of only the director of the Judicial Appointments Commission appearing on "The Marian Finucane Show", he or she will be joined by the chairman of the procedures committee of the Judicial Appointments Commission. It is unnecessarily bureaucratic.

The Minister disputed the figure I gave in regard to the expenses of the Judicial Appointments Advisory Board last year being approximately €5,000. I was incorrect as the correct figure for 2016 was €7,100 according to a report in The Sunday Business Post on 2 July. The judicial appointments process needs to be reformed and I introduced legislation on behalf of Fianna Fáil in that respect. For that process to be satisfactorily performed would require it to be done for a relatively small amount of money and without having a variety of committees. It would be done by having a board of 11 or 12 members who meet three or four times a year to make recommendations to Government. I am concerned that the mechanism proposed in this legislation will make the process complicated beyond what is necessary for recommending eight or nine people for appointment. The amendments aim to remove the procedures committee from the legislation. It is just one of the many committees dealt with in the legislation but there is no necessity for it. Let the Judicial Appointments Commission be a coherent entity and one body that makes its rules. A process involving a separate procedures committee and other committees would be far too complicated. Even the Minister must appreciate the complexity that is being introduced. It is not rocket science.

Deputy Clare Daly

There is some crossover between this big grouping of amendments and the next grouping, which is even bigger. Some of the points being made, with which I agree, relate to the next batch of committees and not this one. Perhaps I am barking up the wrong tree. We considered Fianna Fáil's amendments, which form part of the next grouping, in respect of getting rid of certain committees and having the commission as a whole do all the decision-making. There is a certain logic in that. We decided against it but are very much open to discussing it because the idea of members of the commission being pulled into isolated conclaves goes against the concept of having a commission in the first instance. However, I am not so sure that argument applies to the procedures committee, which is what this group of amendments addresses.

Although I could be wrong, the Minister seems to be saying that the procedures committee will be set up at the start to decide on the criteria for selection. That will be its main job and it will not have much to do apart from that. A smaller body would probably be in a better position to get things up and running fairly quickly that than a larger one. I have less sympathy for these amendments than those in the next grouping and I would like to hear more about them.

I agree with the points made by Deputy Wallace regarding an overemphasis on the issue of lay members versus legal members. The real issue is that of political appointees and it is that with which members of the public have a problem. I favour having a lay majority but by concentrating on these issues, we are missing the elephant in the room, namely, who will be appointed as judges rather than how they will be appointed. Being made a judge is career progression for those in the legal profession. Given the background from which judges are drawn, they are a class apart from the rest of society. Having a lay majority is an attempt to break through that. It is not just about appointment as a judge being career progression for those in the legal profession but that judges should better reflect the diverse views and backgrounds of society as a whole. Studies show there is a better chance of getting that if there is a lay majority on the commission because it otherwise becomes self-replicating in that judges think they are doing a great job, which many of them are, but they do not see the lack of representation of wider society as a problem. They might be great judges and make good decisions but there could also be more diversity. Some of those issues need to be reflected upon.

There is more of a basis for the procedures committee to remain than other relevant committees but I am open to hearing more on the issue.

Deputy Donnchadh Ó Laoghaire

I hold an almost identical position to that of Deputy Clare Daly in that some other committees are perhaps unnecessary and it might be possible for the commission to do much of the work of committees attached to each court. However, the procedures committee has the strongest case of all the committees in terms of its working to ensure that the process is representative and that there is diversity and so on. While I accept that it may be more relevant to the next group of amendments, it would be sensible to have a commission that would be responsible for the appointment of all judges and a strong procedures committee might ensure greater consistency in the approach to appointments than might ensue from there being four different committees, each dealing with a different level of court. I favour a commission and a procedures committee. Whatever about the other committees, there is a logic to having a procedures committee.

Deputy Mick Wallace

There are many matters that relate to amendments Nos. 84 and 85 in my name. For example, we have tried to create a bit of balance by saying it should not be obligatory to have a lay chair. We have proposed having six legal members, six lay members and the Chief Commissioner of the Irish Human Rights and Equality Commission, who is a hybrid of the two. He or she is selected by the Public Appointments Service. That may allow a certain amount of Government influence but it is probably the most independent body in the country, has a say on its own budget and cannot be removed by the Government. The Chief Commissioner of the Irish Human Rights and Equality Commission would be a very strong person to have on the committee and having six lay people and six legal professionals to make up the 13-----

Deputy Jim O'Callaghan

I am sorry to interrupt Deputy Wallace. The Criminal Justice (Victims of Crime) Bill 2016 is being discussed in the Dáil and I have to speak on it. The Minister has back-up in the Chamber. I do not know if Deputy Clare Daly plans to speak on that Bill.

Deputy Clare Daly

I have an amendment tabled to that Bill. I am not sure where my notes are; they might be on their way to the Chamber.

Chairman

Does the Minister have a colleague covering for him?

Deputy Charles Flanagan

I do but that does not meet the point raised by Deputy O'Callaghan. I am in the hands of the committee.

Chairman

We have a little short of 40 minutes remaining of the time originally allocated for this meeting. I am open to a proposal to suspend or address at this point if members have to attend in the Dáil Chamber. What does Deputy O'Callaghan wish to do?

Deputy Jim O'Callaghan

I do not mind what action the committee takes but I have to speak on that Bill in the Dáil.

Deputy Clare Daly

I have tabled the same amendment. My notes are on the way to the Chamber where I am going to meet them.

Deputy Colm Brophy

We should suspend.

Chairman

As it is unlikely that members will be able to return before noon, will we adjourn? Is the Minister agreeable?

Deputy Charles Flanagan

I am in the Chair's hands.

Chairman

As members must leave to address another Bill that comes under the responsibility of justice spokespersons, we will have to adjourn and resume our consideration of the Judicial Appointments Commission Bill on another date. Is that agreed? Agreed. The clerk will liaise with the Minister's office to arrange a suitable resumption date. Is that agreed? Agreed.

Progress reported; Committee to sit again.

The select committee adjourned at 11.21 a.m. until 9 a.m. on Wednesday, 22 November 2017.