Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I neglected to address amendment No. 124 in the names of Deputies O'Callaghan and Jack Chambers, so I will briefly refer to it and then come back to the more general issues as raised again by Deputy Clare Daly. Amendment No. 124 proposes to insert into section 38 a requirement that the commission ascertain which candidates for judicial office demonstrate specified qualities and characteristics and also have regard to the necessity for candidates to possess specified legal skills or competencies. I have a number of difficulties with the amendment. I am concerned that it would have the effect of detracting from the prevalence of the merit principle in section 7. The latter establishes clearly that recommendations be based on merit and that merit assumes full consideration of equality as between men and women and diversity within the population. The very detailed provisions in the amendment could be construed as overriding the crucial section 7 principles and objectives. I invite Deputy O'Callaghan to agree that there are issues relating to what is a very wide-ranging amendment that go beyond merit. I refer specifically to subparagraph (viii) concerning sensibility and cultural sensitivity. There is also reference to "sound temperament and common sense" in subparagraph (iv). I am not saying that these are not important. However, I am saying that we have gone beyond the section 7 merit principle.

The amendment is simply too prescriptive and comprehensive to have an application in primary law. It also runs contrary to the approach in Part 8 of the Bill, which tasks the procedures committee with defining and drawing up statements of skills, competencies, personal attributes and characteristics that an aspirant for judicial office must possess. The Bill recognises that different statements may apply to different judicial offices and different classes of business. If people read section 55 (5) and (6), they will see that we have covered much of the import of Deputy O'Callaghan's amendment without actually specifying matters in the detail into which he goes. In the circumstances, going into such detail is problematic. Section 55(6) sets out clearly for the procedures committee some specific issues to which regard should be had at the design stage. I refer here to knowledge of the law, the proper and efficient conduct of proceedings, decision-making and awareness of the needs of those persons who use the courts. I am of the view that this is sufficient. The Bill recognises the different statements that may apply to various judicial offices. There is a danger that what is proposed in Deputy O'Callaghan's amendment could prove too onerous should all of these issues become part of the legislative process. In the UK - or at least in England and Wales - the Judicial Appointments Commission has developed merit criteria.

It deals with, for example, intellectual capacity and personal qualities of sound judgment, objectivity, decisiveness, an ability to understand and deal fairly, authority, and efficiency. It is at that level that our new body might be charged with those responsibilities rather than have it in the primary legislation.