Mr. Kevin Condon:

I thank the Chairman for the opportunity to contribute to the committee' deliberations today. The judicial appointments commission Bill is currently at an advanced stage of drafting. The Government approved and published the general scheme of the Bill in December. It was forwarded to a number of key stakeholders at that time, including the Judiciary and the legal professions, and a number of submissions were received. I might focus on a number of principles that underpin the provisions in the general scheme.

There was broad acceptance of the need to update the Judicial Appointments Advisory Board arrangements, which were put in place via legislation introduced more than 25 years ago to deal with first-time appointment of judges. There was also a recognition that the involvement of lay persons in the process should be increased, expanding the experience and knowledge brought to the process of selection.

There was a need to expand the remit of the advisory body to include promotions, or elevations, of serving judges, which now is addressed under an informal process for the appointment of serving judges. The Judicial Appointments Advisory Board has no role in this. In the programme for Government brought forward last year, it was determined that the process of appointing judges for the future should remain under the leadership and guidance of the Chief Justice, and a substantial judicial input in the process is advisable. To support the new arrangements, the Government agreed that a small dedicated resource be established through an office under the supervision of the commission. An important further principle, to which the previous speaker referred, was that merit will become the defining criterion for the selection of judges. This should be expressed in statute, with regard to other key objectives, which the general scheme sets out. It was also understood that the commission should be enabled to develop statements of judicial skills and attributes, as well as selection procedures, having regard to particular criteria. This structured approach would allow the commission to further develop the requirements for judicial recommendation and selection. A further point was that the constitutional position relating to the Government's function of appointing judges be maintained.

Regarding consultations, a public consultation process was conducted in 2014 focusing on questions relating to the Judicial Appointments Advisory Board process, independence of the Judiciary and related matters. The outcome of those consultations is still informing the fabric of the scheme and the earlier forerunner Bill.

The Judicial Appointments Advisory Board, which was established on foot of the Court and Court Officers Act 1995, was a landmark development at the time, introducing a new, independent element to the judicial appointments process. Article 35.1 of the Constitution provides that judges are appointed by the President. Under Article 13.9, such power is exercisable and performable only on the advice of the Government.

As members will be aware, a key element underpinning the 2017 Bill, which remains in the general scheme, is the composition of the commission. A significant change in this scheme compared with the previous Bill is that the Chief Justice will be the chairperson of the new commission and that there will be an equal number of laypersons and judges. The Attorney General will also be a member. The board has been chaired since its inception by the Chief Justice of the day and this ensures that the selection process is rigorous and meets the need for a strong, independent Judiciary. I am sure we will go on to look more closely at the composition of the commission and members may have questions about that. The lay contribution of the board is an important consideration. The scheme makes reference to a number of areas of experience and knowledge that it is anticipated lay members appointed to the commission will have.

A key aspect of this Bill is that all judicial positions are covered. The Bill replicates the 2017 Bill approach whereby all persons who wish to be considered for appointment to judicial office, including serving judges, will be required to apply to the commission. At this time, the Judicial Appointments Advisory Board deals only with first-time judicial appointments. For the elevation of serving judges from one court to another, there is no system at all in statute other than the constitutional process. It would appear that it is no longer sustainable that there is no statutory process in place to address some of the most important appointments to any office in the State. There is general acceptance that these arrangements should be updated in the manner envisaged in the planned Bill, in the interests of good governance, transparency and accountability.