Dr. Laura Cahillane:

I will present on behalf of the group. I thank the committee for the opportunity to speak. I should note that this statement represents the views of three legal academics from three different institutions. We have all researched the area of judicial appointments and wish to highlight the most important points from our longer written submission. We are very enthusiastic about this proposed legislation. This reform is long overdue and we are delighted to see progress on so many areas in the general scheme. We are concerned, however, that unless certain changes and improvements are made, this opportunity will be potentially wasted and the commission may be no more effective in improving our judicial appointments process than the Judicial Appointments Advisory Board, JAAB, has been.

The first matter we wish to highlight is the absolute necessity for more specificity in the recommendations from the commission. It is widely acknowledged that JAAB had little effect in influencing the Government's decisions on appointments because it sent forward too many candidates and did so with no ranking or order of preference and in fact very little evaluation. A smaller number of names is proposed in this Bill. We feel it is still not small enough. The commission should recommend no more than three candidates per vacancy. It is crucial, in our view, that the commission be required to rank these candidates in order of preference.

We expect that the commission will carry out detailed assessment procedures. It may be very obvious that certain candidates are more suitable for appointment. It would be appropriate that this be conveyed to the Government. If candidates are unranked, governmental discretion will once again be largely unguided and any assessment procedures carried out will become somewhat nugatory. To be clear, the Government will still be entirely free under the Constitution to pick whomever it wishes for any judicial vacancy either from the list of recommendations or outside of it. The only consequence would be, as under the current system, a statement to that effect in Iris Oifigiúil. It is certainly not unconstitutional to provide for a three-name list or a ranking of candidates because legally the Government's discretion is not fettered.

The second matter we wish to address is the criteria and process used by the commission to recommend candidates. Compared with international best practice, the proposals in the general scheme are very scant. In fact, they do not add any additional detail to the existing criteria for appointment, which have long been criticised as being too vague.

The commitment to a merit-based process is welcome but further detail is needed to elaborate on what merit actually means. The detail is crucial here because merit on its own is not a very useful guide to judicial appointments, unless it is elaborated on, in guiding the commission on what types of candidates are desirable and meritorious. England and Wales might be consulted as jurisdictions where this has been done, for example. Further detail on suitability on grounds of character and temperament would be desirable, as well as a direction on how the committee would actually establish this.

A crucial omission is that the scheme does not detail the process that the commission should undertake in assessing candidates. It allows for various procedures such as interviews but does not specifically require them.

Currently, JAAB also has the power but has chosen not to exercise it. We believe the legislation should be stronger and should specify the procedures, such as interviews, for example, or perhaps case studies or role-plays, as is very common in other jurisdictions because if these decisions are left to the discretion of the committee afterwards, then procedures may simply be dispensed with.

We also welcome the introduction of a commitment to diversity and equality in appointments. It would be useful to include a requirement for a diversity strategy and for diversity data management, or at least a requirement for the commission to report on diversity in its annual reports.

We are also of the firm belief that the central role of the Attorney General in the commission should be reconsidered. If the Attorney General is removed from the membership of the commission, it would then have equal lay and legal representation, which reflects international best practice. Also, the Attorney General, as legal adviser to the Government, will have an intimate role in the discussions of the Government’s final choice. Having the Attorney General also sitting on the commission gives the Government an outsized influence on the process. In fact, it is the only figure involved in both parts of the decision-making process. The commission is being set up as an independent assistant in the Government’s selection of candidates. It should not, therefore, have this overlap with the Government’s process and its chief legal adviser. We see no merit in the inclusion of the Attorney General on the commission and this should be reconsidered.

It might also be considered appropriate to exclude the Attorney General from eligibility for recommendation by the commission for a period of time after leaving office to avoid any potential conflict of interest in the Attorney General’s advice to Government on appointments.

Finally, this legislation is a very critical opportunity to provide for fairness and transparency in a process that is flawed at present. It is crucial that this opportunity is taken to ensure real reform and to guarantee that the existing process is not going to be replicated under the guise of reform. I thank the committee again for this opportunity to present our views and we will be happy to discuss any questions its members may have.