Ms Maura McNally:

I thank the committee for inviting us today. This opening statement is premised upon our earlier submission of 2021 but we also made submissions in January 2017. I do not intend to open those submissions but they should both be on the committee's files.

We are of the opinion that it is crucial the Judiciary maintains the highest standards of competency, impartiality and fairness, and it is essential that the public retains confidence in its Judiciary in order to ensure appropriate rule of law. The judicial appointments process is a vital mechanism for ensuring that those aims and objectives are achieved.

There are many aspects of the general scheme of the Bill which take on board our previous suggestions, including the balance of lay members on the commission, and the number of members of the Judiciary and of the Bar and of the Law Society. However, there are a number of concerns in respect of the new judicial appointments commission as proposed. There is no automatic inclusion of the chair of the Bar of Ireland, nor automatic inclusion of the president of the Law Society. It is our submission that those two persons, whoever they may be in the future, are best positioned to advise as to the suitability of either a practising barrister or practising solicitor. For example, in my role as chair of the Bar of Ireland, I am conversant with the reputations, standing, competency and areas of speciality of the members of the Bar of Ireland, and I am in a position to advise the Government, which is basically the role of the commission when it comes to appointing new members of the Judiciary. I submit that, in those circumstances and premised upon that unique knowledge, the chair of the Bar of Ireland and, in the case of solicitors, the president of the Law Society, should be included on the commission.

There is logic to reducing the number of those on the commission, such as, for example, that smaller numbers can lead to greater consensus, but I would also submit that judges, whether they be of the superior courts or, for example, of the Circuit Court or District Court, should also be included in the following circumstances. For example, if it is an appointment to a position of the Circuit Court, the president of the Circuit Court should be invited to that commission to make a submission as to precisely what it is he or she is looking for in a candidate, and, in addition, that president will be aware of the reputation of the person applying. I say that in circumstances where one of the criteria for application is that one must have experience in the practice and procedure of the courts when applying.

There is a limit in the wording of the new Bill. For example, when applying for an appointment to the role of judge of the superior courts, one must show experience of practice and procedure in that court and one must show knowledge of the case law and determinations of that court. However, that is not carried backwards, for example, to the Circuit Court or the District Court, where, we would submit on behalf of the Bar of Ireland, persons who are conversant with the practice and procedure in those courts must show that competency. For example, they must show they are aware of the practice and procedure in the Circuit Court, if that is the position they are applying for, and of the judicial decisions and determinations of that court, and it is similar in respect of the District Court.

As to selection and recommendation, again, I am not going to reiterate the point about experience and having knowledge of the practice and procedure. However, there is an anomaly whereby barristers and solicitors who are in practice are required to show their experience and not only their knowledge of the case law, knowledge of determinations and knowledge of statute, but more particularly knowledge of the practice and procedure. Yet, academics are only required to show four years experience. If anything has taught us since March 2020, it is that we have had some 18 months during which there has been very little learning in the area of practice and procedure for younger barristers and younger solicitors. For example, 18 months of that four years could well be considered written off because they have not seen in practice what happens in the very court to which the person is applying as an applicant to be appointed. There is a very big difference between academic knowledge or knowledge of practice, and experience of practice and procedure in those courts. I submit that the practice and procedure and the experience should be equal for all across the board, whether they be barristers, solicitors or academics. There is no point, for example, having four years of knowledge of practice and procedure from 2000 to 2004, and then applying 17 years later, in 2021, to be appointed to a court that they have not set foot in for almost two decades because they are not knowledgeable in the area of practice and procedure in that court.

Another issue I would like to raise is in respect of the appointment or the replacement of individuals on the commission. For example, if the Attorney General is an applicant for a position, we think it is very obvious that he or she should recuse himself or herself and that she or he should be replaced by an alternate when an application is being made. It is similar when it comes to judges who have already, shall we say, passed the test at the Judicial Appointments Advisory Board as exists at present. Therefore, where a person was deemed suitable for the Circuit Court but, for example, might now be applying for a position on the High Court, the Court of Appeal or the Supreme Court, we would submit that that person should go through the same rigours as any barrister or solicitor applying, in that he or she may very well have been suitable to the District Court or Circuit Court but that does not automatically mean she or he is suitable for the higher courts.

I think I have taken up my five minutes. I will answer any questions members may have. I refer also to our two previous submissions, particularly the most recent one of this year. I thank members for listening.