Charles Flanagan (Laois, Fine Gael) | Oireachtas source

This grouping of amendments reflects a desire on the part of members of the committee to remove the commission 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 are core elements 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 practical, 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 lay persons 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 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?