Dr. Laura Cahillane:

I thank the committee for inviting me here today. This is an important discussion. I will start from the position that we are all aware of the current process for appointing judges in Ireland. I want to outline one or two problems and mention some potential solutions.
The first problem is that appointments are seen to be political. Judges have admitted that the appointments process is political and the problem is that the current system does nothing to prevent it. It is something which needs to be examined.
Another issue is diversity. Gender balance has improved in recent years, but we have some way to go to ensure that there is appropriate balance on the benches in terms of gender, background and ethnicity. Last week I collected data on the number of judges. There is an obvious improvement in terms of gender. Of the total number of sitting judges, 30% are female. The female representation on the Supreme Court is 30%, the Court of Appeal is 22%, the High Court is 22%, the Circuit Court is much better at 42% and it is 30% in the District Court. It is clear that significant progress has been made here in the attempt to secure an appropriate gender balance, but that is because of the clear aim of the current Government to appoint women to these positions. However, the percentage of women is still too low and we should not be content with a figure of 30%. The point is that the current process does nothing to ensure that this trend will continue, it is entirely at the whim of the Government. It is another issue which needs to be examined.
There are also issues with the Judicial Appointments Advisory Board. It has no role if the post in question is the presidency of any court or if the vacancy is being filled by the promotion of a lower court. While the board is clearly intended to be an advisory body, in reality it is nothing more than a filtering mechanism or a short-listing body. All it does in reality is remove undesirable or unqualified candidates and the rest of the names are presented to the Government. There is nothing advisory about the process. The criteria for appointment as a judge need to be refined and reformed.
One very obvious recommendation is to reduce the list of names the board can recommend to the Government. Almost all of the submissions sent to the Department of Justice and Equality in January had in common the recommendation that a list of three names would go a long way towards eliminating the possibility of appointments being political, and would also give the board a more advisory role and would remove the appearance of it being simply a short-listing body. This sort of amendment would be compatible with the Constitution as the final choice is still left to the Government.
Another very simple solution is to allow the board to interview candidates. It already has the power to do this under section 14(e) of the 1995 Act, but it has never availed of the possibility of doing so. There is no obvious reason why candidates should not be interviewed, as long as the process is fair. It is something which is done in many other jurisdictions. In England and Wales, for example, candidates may be required to take part in panel interviews, an interview and a role play, an interview and a presentation or an interview and situational questioning. It is a much more rigorous process and ensures that candidates can be assessed as to their suitability in a very practical way.
Another suggested reform is to rank the candidates. As long as the Government retains discretion not to accept the ranking of the board, this is also compatible with the Constitution. The membership of the board needs to be examined. There is currently an overwhelming majority of lawyers on the board. Increasing the lay members of the committee would help to ensure that issues such as diversity are considered and would also help to avoid the appearance of self-perpetuation by the Judiciary. Other jurisdictions have done this in a number of ways. Ontario, for example, provided for a majority of lay members on its committee. Scotland has equal legal and lay representation. In England and Wales the chair of the commission is a lay person. Perhaps one of those options should be considered.
The eligibility criteria are very problematic. The committee members have the wording of section 16(7) before them. The words "character", "temperament" and "otherwise suitable" are unacceptably vague and need to be refined. Other jurisdictions have provided for more precise guidelines. Scotland is one good example and has very detailed criteria to match each of the judicial offices. It generally uses 17 precise criteria against which to measure candidates. In England and Wales candidates are assessed based on merit, but that is broken into six core qualities which are further broken down. A comprehensive set of eligibility criteria against which to measure candidates, such as the English or Scottish process, would facilitate the short-listing process and help to ensure that the most suitable candidates are put forward to the Government.
Another issue in regard to eligibility is the question of appointing academics, and perhaps that is something we could discuss. There needs to be more of a focus on diversity. Ireland is one of the few jurisdictions which has not focused on this issue. In many ways, the diversity of the bench is dependent on diversity in the legal profession generally, but there are still actions which could be taken. One very simple step would be to give feedback to unsuccessful candidates in order that somebody from a minority group who is an unsuccessful candidate will understand that the choice has been made on objective criteria and will be encouraged to apply again.
We could follow in the steps of Scotland and draw up a diversity strategy. The Scottish strategy involves monitoring the diversity profile of applicants, holding information sessions, working with the legal profession and promoting judicial office among those who are currently not coming forward. Other jurisdictions require their boards to have regard to diversity and in Ontario, England and Wales that is put on a legislative basis. While England and Wales lag behind us in terms of their diversity, they have introduced many recent initiatives in order to tackle their low levels of female and minority representation. They recently established a judicial task force to implement the 53 recommendations of the Neuberger report published in 2010. It will work with the Bar Council, the Law Society and the Judicial Appointments Commission in order to remove barriers and promote diversity.
We need to acknowledge that diversity should involve more than gender and ethnicity. Rather, it should be concerned with providing a true representation of the population, and not just one section of Ireland. Diversity is directly related to how the public perceives the Judiciary. That is related to public confidence in the administration of justice. There is no quick fix, but perhaps we could consider some of the reforms I mentioned. At the very least, we need to recognise that a diverse Judiciary is a worthwhile goal.