Dr. Patrick O'Brien:

I thank the committee for inviting me. In this opening statement I will focus primarily on the treatment of diversity in the Bill. Broadly speaking, I think the Bill is a step forward and a good thing but I am concerned about the way in which diversity is treated under head 6. Head 6 introduces three different issues: the idea of merit; diversity, first in terms of gender and then in terms of the make-up of the general population; and linguistic competence criteria, that is, competence in the Irish language. I am concerned that, as drafted, the Bill's focus will be primarily on merit and that this is likely to crowd out concerns about diversity. This is based on the experience of the various UK judicial appointments bodies, of which there are four. UK processes have been formalised steadily over the past 20 years. Part of the reason for doing this was to increase the diversity of appointments made. The practical experience of this, however, has been that it has not happened because there has been a fairly resolute focus on merit in very traditional terms. Diversity is therefore increasing but only very gradually.

Looking at the statistics, the Irish Judiciary under the current system outperforms all the various UK jurisdictions. For example, in England and Wales 32% of judges are female whereas for Ireland as a whole the figure is 38%. If the two supreme courts are compared, it is two out of 12 on the UK Supreme Court and three out of nine on the Irish Supreme Court, although granted that is with some vacancies.

Why has this happened? Particularly in England and Wales we can point to two or three things. First is this strict focus on merit, which privileges traditional qualifications and traditional candidates rather than the potential of candidates. Second is the removal of the capacity to tap eligible candidates on the shoulder. One important thing that has been shown internationally is that if people who might not be traditionally represented are approached directly, often they have not really thought about applying or have not thought of themselves in those terms. That is good at bringing people in. Third is the involvement of politicians. Again, international comparisons show that politics is important as a driver to diversity because if politics accepts diversity as a goal, it can introduce that element into selection.

Given the way in which the Bill is currently structured, I recommend that head 6 be amended to require the commission to present the Government or the Minister, as appropriate, with a balanced slate of three to five names of which some - at least one - should be someone whose appointment would advance the diversity of the Judiciary as a whole. This could be a way of avoiding what appears to be the slowing down that has occurred under the various UK appointment bodies.

The other submissions I have made are a little smaller. First, regarding the membership of the commission, again the experience in the UK in particular suggests that not a great deal turns on this. Judges tend to have a great deal of influence by virtue of their status and expertise. The omission of representatives from the professional bodies is anomalous and should be looked at in some capacity.

Second, regarding recommendations to the Minister, another anomaly of the Bill is the potential, in circumstances in which the commission has felt unable to appoint anyone, that the Minister could then still proceed to an appointment based on the same names. Given that the new processes are supposed to be more closely focused on merit and modern selection processes, it seems anomalous that someone whom the commission has decided should not merit appointment should then be appointed by the Minister. I think there should be more political accountability for this, possibly in the form of a requirement that the Oireachtas be notified if the Minister appoints off the list, as it were.

Third, I understand and I can see the reasoning behind the criminal offences introduced under heads 30, 31 and 65. They do seem a little disproportionate to me, particularly the confidentiality offences, which have indictable versions. There is maybe more to discuss here, but they have at least a potential for a chilling effect, possibly from a merit perspective, in terms of getting people to approach potential candidates informally.

Finally, legal academics have been mentioned already. I suggest, given the Bill's current form, that no legal academic is likely to be appointed because the modern structure of academic careers is such that professional experience of the kind suggested is simply not an option. It is very unusual. Therefore, if it is considered that the appointment of legal academics is a good thing, this will need to be looked at again. Certainly, the structure of head 38 seems to me to be extremely convoluted and needs some further thought and clarification.

I will stop there. I think that is roughly five minutes. I am happy to take any questions as required.