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

I thank all Deputies for their contributions and some interesting relevant points have been made. I begin by absolutely rejecting the characterisation by Deputy O'Callaghan of the approach I have taken as being disrespectful of the Judiciary. Nothing could be further from the truth. I have huge respect for the Judiciary in this country and if he had listened to my opening remarks this would have been very clear. It is important we discuss all the issues and look in a balanced way at the pros and cons of the different approaches which I and the committee have taken. Using words like "farcical", "offensive" and "disrespectful" really are not appropriate. What we are discussing today is part of an international debate about the role of judiciary in society, not the question of its independence but how judicial selection should take place. A huge amount of work has been done and there has been huge change around the world, including in common law countries, on this issue. As I spent some time explaining in my presentation, I have tried to illustrate the challenges and complexities of this as well as the democratic demands. These are legitimate areas for discussion and are in no way disrespectful. It is very important that we do it here in committee and it is essential we get the views of members in moving toward an independent, accountable and diverse Judiciary. There are different ways of doing it and I do not believe there is a right and a wrong way. There are choices to be made and the committee is examining the range of those choices today.

The constitutional issue has been raised by a number of members and is central. I have very clear advice on this, both in respect of merit and whether the Government can be confined to the lists that are presented to it. Neither I as Minister for Justice nor the previous Minister in the previous Government ever went outside the lists that have been presented to us by JAAB. Whether or not the Government should be allowed to go outside and whether it is a constitutional question are also something on which I have got advice.

Deputy O'Brien raised a series of questions about the Constitution and this is very important. As Deputy Farrell said, the committee may well want to get its own advice in this matter. The Constitution has been central to the approach I have taken, which I will explain. Government retains, at all times, the executive discretion under Article 35 of the Constitution which supersedes any fetter imposed in legislation and could not be limited by legislation which otherwise could be contrary to Article 35. It would also breach the separation of powers in the Oireachtas in enacting such fettering legislation on the Government's executive function and the function of the President under Articles 35 and 13 of the Constitution. Provided that the executive function of the Government to advise the President of an appointment is respected and there is a choice for the Government in nominating persons as judges to the President, that is the situation. It is open to the Government to decide to follow the order of merit in nominating the first candidate out of the names put forward but it could also nominate any other names.

In order to fulfil the constitutional requirement, the Government must have discretion. By convention and practice, the Government usually follows the recommendation of the commission. However, it could not be expressly required to do so in legislation, as that would be to limit or fetter the constitutionally recognised executive function of the Government to nominate judges for appointment under Article 35. The point here is to avoid placing a limitation on the Government's executive obligations. I have clear advice on the discretion that the Government must maintain. Even if there were no order of merit, limiting the Government to those people on the list would equally be unacceptable constitutionally. By the convention and practice of this Government and the previous one, the Cabinet has never gone outside the JAAB procedure and list. I imagine we will continue discussing this issue, but I wanted to be clear on the advice that has framed my approach.

The role of the Judiciary and whether there should be a lay or judicial majority are central questions to the discussion on Deputy O'Callaghan's Bill and the Government's approach. I will cite a number of attitudes and approaches to the matter that may inform the debate. Deputy Daly raised important questions about the role of the lay person versus or in conjunction with that of the Judiciary. In an article, Professor Alan Paterson quoted Sir Tom Legg, who said: "Who our judges are, and how they are selected, is a public matter and fully justifies public interest and debate." This is a basic point. Professor Paterson wrote:

As such, any desire to ensure that judicial appointments are 'wholly independent of external influence' is flawed: there is an important constitutional need to link in some way the (increased) power of the judiciary to those on whose behalf it is held.

That is a good way of describing what is central to the debate. Professor Paterson also wrote: "The democratic legitimacy of a branch of government is also directly linked to the extent to which it represents the society it serves." These are approaches to having lay people on the board, even as a majority.

There is an interesting point about diversity, fairness and the various ways in which these have been viewed down the years and it is important to put the proposed approach in context. Historically and for a variety of reasons, it was men who were primarily selected to be members of the Judiciary. We now have a greater gender balance than ever before, so that diversity is being reflected, even if the height reached in some courts is just 30% female. Baroness Brenda Hale, a Supreme Court Justice in the UK, stated:

A woman litigant should be able to go into court and see more than one person who shares at least some of her experience. I should not stick out like a bad tooth, as I do at present.

Interestingly, she was the only female member of the UK's Supreme Court at the time.

On the questions of diversity and who is suitable, we have historically discussed merit and how it is defined. Merit is often in the eye of the beholder. This is a good reason to consider involving lay people. At one time in the UK, merit included coming from the same party as the Lord Chancellor. At a later point, it was deemed to be a good thing to have had previous political experience before appointment as a judge in the House of Lords. More recently, it has been and, in large part, still is "regarded as coterminus with having been a junior and a QC at the bar for 30 years". This is not meant to show any disrespect, only to make the point about our assumptions concerning qualifications and merit. We are at a point when this is worthy of discussion.

It is not insulting to the Judiciary to have a discussion about a lay majority. It is not intended as any sort of disrespect. In terms of democratic accountability in terms of the board's composition, these are the types of point that we need to open our minds to as opposed to resisting change and saying that the situation should stay the same and there should be a judicial majority.

My understanding is that there has rarely been a vote on this question. I imagine that this will be about putting the processes in place. Deputy Daly made a point about the committee and the work that we are suggesting a sub-committee should do. It is a matter of practicality that this matter move in that direction.

There are many points to address and I will try to go through them all. I am open to discussion about the various issues.

On the selection of lay people, Deputy O'Callaghan was insulting towards the Public Appointments Service, PAS. There is no indication from other jurisdictions where lay people have moved into the system that they are carrying particular agendas. Why should it be different in this country? If we lay out the criteria for the types of lay people who should be on the board, we can trust the PAS to select people of the highest calibre, if that is the route we take instead of using nominating bodies. We trust it to undertake other important jobs, so I do not see why it cannot be trusted to do this.

The Deputy made a point about the level of resources that we have suggested the body should have. The Bar Council made the very same point in its submission yesterday and questioned whether resources were needed. If one wants to establish a professional body, give it the kind of work that is necessary and allow it to develop the expertise relevant to the important issue of judicial selection, one should support it in doing so. The Dublin declaration made this point. In their analysis of the current operation of the appointments board, the JAAB and the Judicial Appointments Review Committee, JARC, have stated that they do not have enough resources to do the type of job that they believe they should do. I make these points in support of our approach. This needs to be a professional body with professional standards that employs a chief executive to oversee it. The structure is relatively modest. We are not talking about glossy reports, only limited access to consultant expertise so that it can be a fully professionalised selection process, as we have outlined in the Bill.

A number of points have been made about the role of the Attorney General. The Attorney General is in a unique position to understand the qualities required for a judicial appointment and would be familiar with the experience of practising lawyers. The Attorney General is in a different position, being slightly outside the system, but is a legal expert and has extensive day-to-day knowledge of the abilities of practising lawyers, in particular barristers. The Attorney General is the Government's legal adviser, not a member of it. I would support the Attorney General being kept on the commission. It is a suitable approach to take.

Deputies Farrell and Daly raised questions about the A and B lists and qualities. Some people like the more detailed approach taken by Deputy O'Callaghan to the qualities that people need to be judges. That is a matter for discussion and we can devise an approach that is satisfactory for the committee.

We have some work to do and we certainly will address the matter.

Deputy Daly made a point about the Bar Council and Law Society applying merit to legal members. It could be discussed with both organisations how they would propose to apply a merit criteria to the people they nominate. I am quite sure that they would do that anyway but it is something we can look at in the final drafting. Again, they bring a different and important perspective and I was keen that should be reflected in the composition of the board. The Deputy's idea is useful. We can consider the transparency of that aspect of the membership of the commission.

In terms of political engagement, I would make the point that in a professional selection process it is irrelevant whether a person is politically motivated. It will not help them. I think that we all agree that political involvement, membership or experience in politics should not exclude people. I do not think we want to arrive at a situation where people who have been involved democratically in politics are excluded. Clearly, everybody should go through a professional selection process.

The point has been made that the experts in this area, those who are already sitting judges, are the people who should appoint their successors and their colleagues. It has also been pointed out that they should have the majority in doing so because they know the practice first hand as they do the work. I will make a number of points on the approach we are taking. I refer to the argument made about cardiologists appointing cardiologists and whether the Taoiseach chairs a committee or somebody does so when he or she is not there. First, judges will be there and their expertise will be fundamental and critical to the decision. I have made this point absolutely clear. The lay people will provide a range of additional voices, expertise and experience. Being a judge is about having a knowledge of the law but it is also about other issues. The whole point about what qualities we need in a judge is that these will be elaborated by the commission in its selection processes based on merit. That is what happens in other countries.

In terms of quite what the role of the chief justice should be, an argument has been made elsewhere in other jurisdictions. Let us make the point that chief justices in neighbouring countries have no difficulty with being part of a commission and not being the chair. One can make the argument, but I am not quite sure which words to use, to ensure having a chief justice in that position gives greater opportunity for him or her to make an input and still play a very critical role while not chairing. One can make the assumption that the lay members will respect the judicial experience members of the Judiciary bring to the table.

In terms of lay involvement, from a democratic accountability point of view we want to see more of a critical mass of lay people involved. I respect the fact that Deputy O'Callaghan has called for more lay people on the board. The points of discussion are on who should act as chair and whether there should be a majority.

I do not wish to criticise the nominating bodies listed by Deputy O'Callaghan. One must decide which of the many bodies should be regarded as having relevant interests. We have already heard from a number of members of the committee that there is a wide range of bodies that one could consider to be nominating bodies. Having examined the matter, I felt that the approach that I have outlined through the Public Appointments Service, where we could identify the skills that were needed in a very clear way, was a better approach. I note that there has been disagreement on the committee on this aspect.

I acknowledge Deputy O'Callaghan's acceptance of the importance of the approach that I have taken in terms of making service on the District Court bench as qualifying Judges directly for promotion to the High Court. I agree with him that the measure is overdue. That concludes the main points I wanted to make.