Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank the Cathaoirleach, Deputy Ó Caoláin, and the members of the committee for the early scheduling of this meeting following my referral last month of the general scheme of the Judicial Appointments Commission Bill 2016 for pre-legislative scrutiny. The Private Members' Bill in the name of Deputy O'Callaghan, which also proposes reforms in the area of judicial appointments, is also being considered today. The Government approved these measures as a scheme last month and the scheme is before the committee today for scrutiny. Work on the technical drafting of the Bill has been under way and it is my intention, following today's discussion and the feedback from the committee, to finalise the preparation of the Bill quickly with a view to publication shortly.

I will approach this in the following way. We have two measures before the committee, one is a scheme and one is a Bill. The first point I would like to make is that it is striking how much these Bills complement each other. We are both committed to significantly enhancing the judicial selection model with a strengthened new body with clear objectives, full powers, appropriate resources and a clear mandate to recommend the most meritorious candidate for judicial office to Government. It is appropriate that we consider these matters now, 20 years after the creation of the Judicial Appointments Advisory Board, JAAB. The board has served us well but it is our duty to continually look to the future and to attempt to improve processes where we can. It is clear that both pieces of legislation are committed to this. Where there are points of discussion about elements of the design, obviously we will have that discussion, and I will highlight some of these points in my presentation. In order to be helpful to the committee, I will address issues relevant both to the Bill before it and to the scheme, and Deputy O'Callaghan will do the same.

The scheme sets up a new commission. It is an ambitious vision, putting the new body on a dual purpose footing, to select candidates and recommend persons for appointment, but also to invest time, expertise and resources in redeveloping the requirements and procedures as a modern, professional and independent selection framework, fit for purpose now and into the future. The Private Members' Bill also establishes a new commission. It does not go into that much detail on the support measures. The Government scheme brings all appointments into the new arrangements so that, from now on, judges seeking judicial promotion, or to serve in a higher court, will go through the commission. This is significant and is in line with views from all quarters that this should be the case. That is not the situation at present. Sitting judges do not inform of their interest through the JAAB at this point. Deputy O'Callaghan's Bill also brings these appointments within the ambit of the new arrangements.

I would say that we each have a very different view as to how the very senior president and chief justice posts should be approached. We can discuss the respective merits of the different approaches. My preference is the Government approach which, in summary, involves a special committee under head 32 to consider expressions of interest working in tandem with the commission. I will make some comments about the role of the Minister later and I am suggesting a change in that. Head 28 brings down from the present minimum seven rule to just three names that the commission will now recommend to the Government for appointment. There will be two additional names to correspond with each additional vacancy. This is another major reform and again it is one that is being advocated by many different people. Deputy O'Callaghan's Bill also goes for three but there is a further qualification, that this requires the three names to be in order of merit and an additional one name only for another vacancy.

I want to put forward a very important constitutional point and I think that most people are agreed on this. The role of the Government, in the principle of it but maybe not the detail, under the Constitution in this matter requires a level of discretion. All of the legal advice says that. I would say that is not consistent with a statutory body providing only three names in order of choice. Similarly, even without an order, having only six names be recommended for four vacancies is inadequate for a real choice. As I say, there is a very important point, which is the Government exercising its constitutional prerogative. That may be unconstitutional if one is not giving that level of choice of candidates, by fine-tuning it down to that degree.

Again delivering on the Government programme, the scheme provides for a lay majority of one on the commission and a lay chair. I understand that there has never actually been a vote on the job, and that names have been selected by agreement in the past. I imagine that may well continue when we are talking about establishing the kind of professional body that we are considering here today. The vision here is to strengthen very considerably the present 20 year old model of lay involvement. Now there are just three lay people and eight judicial and legal persons making decisions, so it is a ratio of 3:8 at present. I would say that getting exactly the right input of lay expertise is difficult, but we can return to that. I think there is discussion to be had about what kind of lay experience is wanted, how the lay people are selected, and precisely what that brings to the table. I would say it brings a lot to the table and it is in line with being citizen-friendly and consumer-friendly, which is an important point.

I think it is enough for me to say at this point that it is essential that there is a critical mass of non-judicial, non-legal voices on the commission, covering a range of expertise and experience. That is to complement what I would say is the indispensable expertise and input of the Judiciary and the legal members as regards professional and technical suitability for appointment. Different countries have different ways of accessing that technical, legal and judicial experience, and bringing it into the process of selection. Scotland has a particular model where there is almost something like a gatekeeper role in terms of judicial experience being assessed in the first instance. We are not suggesting that but I make the point.

The Private Members' Bill, Deputy O'Callaghan's Bill, keeps the majority judicial and legal formula. I think that the scale of reform required here and the new professional selection organisation that we are creating moves us beyond that. The scheme also provides for a lay chair. I want to make the point to the committee that there seems to be no difficulty with this in England, Wales and Scotland, where the procedures have been fully reformed in recent times. It is a Government programme commitment. The Chief Justice is a member, of course. I believe that the overall balance here is right. We can return to this too.

Another perspective on this is that we will have a body with five judicial and legal members, five lay members, and an independent lay chair. We have allowed in our scheme for the representation of the Bar Council of Ireland and the solicitors' group, arguing that they bring a different perspective to the table than judicial members. The scheme that we are suggesting has five judicial and legal members, five lay members, and an independent lay chair.

One other similarity is the need to expressly recognise the key requirement, which is merit. We do that in different ways and we can discuss that. A big advantage of this scheme to support the Government's objective is a commitment to properly resource the commission. An office under the commission and a director would make all the difference to what is planned. This is about a professional body being established that can do this work, can look at international best practice and can develop. It is not just a body that we set up which experiences no development and movement. We want to give it the resources to develop best practice models to keep attuned with what is happening internationally.

Other matters addressed by the Government Bill include new accountability requirements, including accountability of the commission to an Oireachtas committee, and an annual statement by the Minister to the House about appointments made in the previous year. Academic lawyers become eligible for appointment as a judge in prescribed circumstances. The scheme makes service on the District Court bench calculable for the practice requirements for appointment as a High Court judge. That is an important and warranted advance, as is increasing to 70 the retirement age of District Court judges so that all judges will have the same retirement age. There are differences at present. It will be important to carefully monitor the implementation of reforms.

Head 10 requires the committee, within 20 months of the measures coming into force, to report to the commission on the implementation and effectiveness of the functions and procedures assigned to it. I would like to look at this again, and in line with the fact that it is just a scheme that I am bringing, and not a full Bill, I am recommending a couple of further changes that I would like to do in the drafting of the Bill. I am suggesting that the committee may agree to the need to include a review clause that would require the Minister, five years after the commencement of the Act, to review its operation and, within one year of that, to prepare an analysis and report on the matter to lay this before the House. This would allow all sides to revisit the reforms and see precisely how it is working. I am determined, and have been as Minister for Justice and Equality, to ensure that all judicial appointments are made on merit.

Before I turn to other matters, I would mention to the committee that I intend to include in the legislation a prohibition on canvassing, which would make it unlawful for any person, candidate, applicant or otherwise, to seek to interfere with or compromise in any way the selection procedures. This issue has been mentioned by the Judiciary as well and subject to Government approval, a relevant provision should form part of the reforms. We see this, for example, when the new police authority is appointing people to promotions within the ranks of An Garda Síochána. There will now be a specific clause saying that it is an offence to canvas for a promotion. It will be a disqualifying offence. That has to be drafted.

I would like very briefly to look back at the changes to the judicial system, and to make a number of points about them. Looking back briefly, the first major change that was made to this was in 1995, and it was quite ground-breaking then. It is important for us to cast our minds back to that and remember that up to that point in 1995, selection and appointment of judges were entirely the preserve of the Government of the day. There were no intermediate steps, there was no separate authority involved in the process, and no information was provided about appointments. While at this remove looking back at measures that were introduced 20 years ago in the Courts and Court Officers Act 1995 we might say they were minimal, at the time it totally changed the way Government approached the whole question of judicial appointments. Other jurisdictions have moved on since, and international instruments provide more guidance on best standards.

However, I would make the point, and I have looked at all of the international approaches to this, that there is still huge variation. In New Zealand, for example, which is the highest ranked country in terms of judicial independence, the Attorney General selects all of the people to present to the Government of New Zealand for judicial appointments, and yet it is still ranked at the top internationally. However, there is a growing consensus about what constitutes best practice, which we want to capture. I am not suggesting that we have had anything other than an excellent Judiciary. It served us well before 1995 and I believe we have had an excellent Judiciary since then too. It is important for public confidence that there is an independent and professionally operated and overseen system for selection of judges, based on transparent criteria, upstream of the relevant decision of Government.

As such, we must move on and continue to protect the independence of the Judiciary and guarantee to the greatest extent we can that the quality of our judicial system is maintained in today's conditions and the ever-changing environment around accountability, governance and administrative efficiency.

When it comes to reform of the system, the important point is that the establishment or amendment of a judicial selection system through legislation is a matter for the Oireachtas alone. As long as what is proposed is constitutional and not retrospective, there can be no authority other than the Oireachtas as to what the new legislative arrangements may be. It is the prerogative of Government or, as we see today, any Member of the House to bring forward proposals to the Oireachtas for enactment. Judicial selection is not part of the judicial function. The judicial function is to apply the law, interpret the Constitution and defend it. The reason the Judiciary is involved in judicial selection is because the Oireachtas assigned it that role in legislation. In my view, no one could argue against the Judiciary having a major input into the judicial selection process because of the key skills, knowledge and experience of the judges. Nothing has changed constitutionally. In theory, the Oireachtas could repeal the Judicial Appointments Advisory Board and not replace it with anything. Of course, that is not a viable option but it illustrates the respective roles of the arms of State in the process and the choices we have in that matter.

In terms of the views of the Judiciary, I want to make a few points and I need to say the following. The Irish Judiciary is now and always has been one of the great successes of the Irish State. Its enduring independence has provided a constitutional structure that has enabled the State to withstand enormous political and economic threats to its existence and stability. The Irish Judiciary is consistently among the top ten most independent judiciaries globally. It is worth noting that point. The judicial appointments review committee, or JARC, is a committee of senior judges headed by the Supreme Court's Mr. Justice O'Donnell and it has submitted views on the scheme. The JARC also submitted very extensive views and analysis in 2014. The Chief Justice has also submitted views. The Judiciary has indicated that is does not agree with aspects of the scheme, suggests that prior study or research has not been conducted and argues that elements of the scheme are inconsistent with and contrary to international guidance and best practice. The most serious criticisms are directed at the new commission, in particular its composition and lay chair, as proposed.

I want it to be clear that the scheme reflects much of what the judicial committee proposed in consultations, if not precisely in the manner proposed. For instance, we propose that the scheme covers all posts, including promotion of judges, that only three names will be recommended to Government, that merit is included as critical guidance to selection, that there is a properly resourced system, and that the selection process is independent and professionalised. The Judiciary has mentioned international benchmarks, but international standards for protecting judicial independence recognise that there is a range of models to choose from and that democratic involvement through government is a legitimate form of judicial selection. Even in our three immediate neighbouring jurisdictions, there are different arrangements in play in relation to lay participation, lay chairing and other areas.

There has been consultation which has helped to inform these proposed changes. In 2014, we received 27 submissions from a range of different people and bodies, including both of the professional bodies and the Judiciary. Guiding principles under heading five provide an important reference for these reforming measures, the systematic development of processes and requirements for which the commission will have responsibility, and the approach of the Executive to the appointments process. These principles underpin the reforming provisions of the scheme. It is actually the processes the new body will use that are critical. While the composition is very important, how the commission does its work and the processes it develops to do its work, which I have outlined to some degree, will prove the effectiveness of this body.

At the heart of these reforms, we are putting in place a new commission to replace the Judicial Appointments Advisory Board which had, or at least exercised, a somewhat restricted remit under the 1995 Act over the intervening period of 20 years. The need for transparency and accountability and the complexity and extent of the environment within which the judicial system now operates demand something new. They demand not only that the new commission will have a much more exacting and hands-on role in the selection of judges, but also that extensive new work is carried out with an ongoing remit to update the requirements for selection and the manner of selection to take account of the very many considerations which are prescribed in the scheme. The framing statute is not the place to specify the attributes of candidates to a definitive degree. The procedures committee provided for under heading ten will do that under the auspices of the commission with the support of expert analysis and research. It is a major advance to have in place on a permanent basis a commission part of whose remit will be to develop fully professionalised selection processes. The principle is selection based on merit but the layout of the detailed components of merit will be left to the commission.

As such, the commission will have a developmental remit but, of course, its routine function will be to recommend three persons for a judicial vacancy. This is a major advance in terms of the value being brought to the procedure by the commission from the 20 year old requirement to provide a minimum of seven names. Indeed, three names - let me recognise that this where the Private Members' Bill and the Government measure intersect - is the lowest number advised as constitutionally and legally permissible as committed to in the programme for Government. I have taken extensive advice on this aspect. There are important differences linked to this provision between the measures. I am satisfied that three names without an order of merit and an additional two, to give, for example, a total of five recommendations when there are two vacancies, or seven where there are three vacancies, and so on, is the correct balance given the constitutional role of the Government.

The question of ranking names was considered by the Judicial Appointments Advisory Board and, in its annual report in 2002, discounted as placing, by the judges themselves which is an interesting point, too great a restriction on the constitutional prerogative of Government to select judges. As such, I have concerns about the constitutionality of ranking and clearly we differ on that point. The scheme also contrasts with the 1995 provisions by bringing promotion of judges from one court to another into the framework of the commission. This, in itself, is a major change but it was invariably mentioned in the public consultations and it adds enormously to the transparency and equity of the whole appointments process.

I go back to make further points on the composition of the commission. The board, or, as it will now be, commission, itself is changing. I acknowledge that the Government's view on this is not universally accepted. The Private Members' Bill increases lay membership of the board and although I am not convinced of the merits of the nominating-body mechanism for procuring that expertise, it is nevertheless a fair recognition that the existing position regarding lay input is inadequate. It is inadequate not only in terms of the numbers, but also in terms of the range of expertise and experience being covered. In effect, the lay input has been reduced since the Judicial Appointments Advisory Board was expanded to include the President of the new Court of Appeal just over two years ago. As such, even the rather minor role of lay persons as envisaged in 1995 has been diluted not by design, but because there is a new court.

As the position in other jurisdictions varies greatly, it is important not to generalise. However, expert lay persons, including in some cases lay chairpersons, bring to the process expertise such as that of senior civil service and public services managers, human resources and recruitment specialists, education and training experts, senior commercial executives, and equality and diversity experts. In fact, some of the most respected academic research I have been looking at contains interesting observations on the importance of lay input into selection. That is not to undermine the importance of judicial input, but to recognise that, in respect of what we expect from our courts and the range of decisions they have to make, a wide variety of experience is essential in terms of determining who is best placed to be a member of the Judiciary. A modern appointments process should be driven by a commission that can draw on these specialist qualities.

The commission should have at the centre of its decision making the experience lay persons have of the system of justice from the perspective of consumers of court processes, be it in family law, criminal law or any other aspect of the law. In this context I have in mind interest groups involved in law matters, penal matters, victim concerns and community law interests acting in a representative capacity locally and otherwise.

What we are trying to achieve in the cohort of lay people on the commission is a mix and balance of relevant skills, knowledge, expertise and experience across a range of areas which will enhance the judicial selection process by widening the perspectives brought to bear on it. The purpose of the enhanced lay participation is to complement the key expertise of the Judiciary and of the legal members and not to seek in any way to minimise the role of serving judges. There is less still any suggestion intended that there is any distrust in the manner in which our senior Judiciary has conducted the recommendation process over many years and I have already outlined the value of the Judiciary in the development and functioning of the State.

Reducing the number of judicial members in order to contain the board or the commission at a reasonable number, which I suggest is certainly no more than the current number, while wishing to broaden the expertise of the commission in the way I have mentioned, simply implies that the judicial member complement must be less than it is at present. There are five presidents in the courts. If the board is to have judicial representation as well as allow the members of the Bar Council and the Law Society, the Attorney General and lay members to have a voice, this is inevitable. However, the scheme provides that two of the most senior judges will be members of the commission while another court president will participate ex officio. I believe that this constitutes substantial and senior input on the part of the Judiciary and therefore the construction of the commission is not inconsistent with certain guidelines including the recommendation of the Committee of Ministers of the Council of Europe. I note that the European Network of Councils for the Judiciary stated clearly in its Dublin declaration, which is often quoted, that "[t]he judiciary must not necessarily have an absolute majority membership on such a selection and appointment body".

Deputy O’Callaghan’s Bill opts for a list of nominating bodies to provide lay persons. I consider there to be difficulties with such an approach because there are potentially dozens of bodies. This is a point for discussion between us. One could contemplate consulting to nominate a lay person, but in my scheme I have suggested taking a somewhat more generic approach that the Public Appointments Commission can reference in its recruitment of commission members. It is not easy to get this completely right and I am open to discussion on the best way to select lay members. I have opted for a particular model that outlines the type of criteria and skills we would like to see in lay members and suggested the Public Appointments Service recruit them. This will be an extremely important body. It is important that people are put through a rigorous procedure before being nominated to it as opposed to perhaps a more straightforward nomination from organisations.

In the scheme, I have indicated an approach that provides for a dual list of skills for the selection of lay members. I have received criticism that this may not be the best way to go and am open to examining it with a view to its simplification. It may be too complex the way I have outlined it. We have received feedback from some selection bodies to the effect that it may be too complicated a way to do it. However, I think everyone accepts that we need to define a reasonably wide set of expertise and experience that we want among the lay candidates and some means of ensuring that the five lay people who are delivered onto the commission have amongst them the widest possible representation of skills across the areas we consider important.

Lay chairing of selection commissions in other jurisdictions is not uncommon. The corresponding commissions in England and Wales and in Scotland have a lay chairperson. Again I accept that not everyone will agree with this measure. The Private Member's Bill retains the status quowith the commission to be chaired by the Chief Justice. That is an option, but I suggest that the chairperson be the most highly qualified lay person meeting the special criteria set down and selected after a rigorous process conducted by the Public Appointments Service. I also believe that it is better that the Legislature would have a role here too. It has been suggested that this is politicising the process. I do not believe it is. After all, the Dáil is where there is democratic accountability. It is appropriate that a proposed appointee satisfies the Oireachtas before confirmation and that the approval of the appointments by resolutions of the Houses will double-lock the ministerial appointment provision. I consider this a part of democratic accountability and do not believe it in any way crosses the boundaries in respect of the independence of the Judiciary. This is arguably more open than the current system. However, it is no reflection on the special qualities and insight of a Chief Justice and the commission will continue to benefit from that unique expertise and insight.

Head 32 provides for a new committee that will only deal with the posts of Chief Justice, President of the Court of Appeal and President of the High Court. The commission is involved in the referral of names to this committee, but it is the committee that will recommend names to the Government. I am suggesting this separate treatment of the highest level appointments. I consider it is warranted. However, in the drafting of the measure, I wish to signal now that some reconfiguration of the composition of this committee is under consideration. Having examined the matter, I believe the Minister should not have a recommending role and should not, as a member of the Executive, be on the committee.

I am sure Deputies will want to discuss how the committee would be ideally configured during the passage of the Bill. Other than the three senior posts, I would envisage a vacancy in the post of either President of the Circuit Court or President of the District Court being filled under the standard procedure. I prefer this more qualified approach to the one proposed in Deputy O’Callaghan’s Bill which envisages arrangements for the filling of all five leading judicial roles that would appear to be confined only to judges of the particular courts.

I do not think that the Private Members' Bill makes sufficient provision to support the work of the new commission although I am sure we can discuss this further. I am talking about having a dedicated resource unit under the direction of an accountable director who would have staff and am suggesting a sum of €500,000 for this purpose. I consider this to be an important statement of intent to underline the work I anticipate the commission will undertake.

The Deputy has provided for the involvement of the commission in the process of nominations of judges for the main EU courts and the European Court of Human Rights. This can be discussed. I consider the current arrangements to have worked well. We have some excellent representatives in the courts. It is important to remember that, when it comes to European court nominations, what is done here in Ireland is just one tier. There is a further tier of examination of every nominee to a European court.

Where the drafting work on the Bill, which has been ongoing, has revealed a need to clarify, reconfigure and adapt somewhat some of the provisions in the general scheme, this is normal and is done in consultation with my officials. Let me state, however, that none of the core elements which I have already covered this morning have been varied in principle in the Bill as drafted from the Heads that we are considering now. Elements such as the exact format of the new selection procedures and competency frameworks, transitional measures, which will have to be discussed, to allow the commission to immediately get to work and the extent of legislative repeals or restatement that may be required are undergoing some reshaping in the draft and the definitive position will be available when the Bill is published.

I would also like to link the reforms we are discussing today, which I believe are necessary and far-reaching, with a related suite of reforms set out in the Judicial Council Bill which will promote excellence in the exercise of judicial functions and high standards of judicial conduct and related matters. I have stated it already but will repeat that these reforms are absolutely fundamental.

We have seen how judiciaries in other countries, dictatorships, have been compromised. As I said, we have a system that I believe we can be proud of but which everybody agrees, including all of those who made submissions, needs to be further reformed. Reform is fundamental to the working of a democratic state. We are all aware of the many challenges that we face in our democracy and internationally. This is about ensuring that we have a system that is fit for purpose and suitable for the needs and challenges of a demanding 21st century environment.

I thank the committee for the opportunity to outline the approach in some detail, which I hope will be of assistance to it in compiling its report on the scheme and the Bill. I thank Deputy O'Callaghan for bringing forward his Private Members' Bill which I know was the subject of extensive research, expertise and hard work. I am interested in hearing the committee's views on this important topic, where we need to move to and how we can bring forward the necessary reforms. As I stated, there are a number of areas on which there is agreement but there are others in respect of which there are substantive differences and we need to tease these out.