Oireachtas Joint and Select Committees

Wednesday, 25 January 2017

Joint Oireachtas Committee on Justice, Defence and Equality

General Scheme of Judicial Appointments Commission Bill 2016: Minister for Justice and Equality

9:00 am

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Apologies have been received from Deputy Colm Brophy and Senator Lorraine Clifford-Lee. I welcome the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, and her officials. The purpose of this meeting is to have a pre-legislative discussion on the scheme of the Judicial Appointments Commission Bill 2016, the Minister's Bill, in tandem with the Judicial Appointments Commission Bill 2016, a Private Members' Bill, which has been tabled by Deputy Jim O'Callaghan. The format of the meeting is that I will invite the Minister, Deputy Fitzgerald, to brief the committee on the scheme of her Bill and then I will call Deputy Jim O'Callaghan brief the committee on his Bill. I will then open it up to a general discussion and questions and answers. Deputy O'Callaghan, as a member of the committee, will, in the same way as any other member, be in a position to ask the Minister specific questions relevant to her Bill, and as she is an ex officiomember of the committee when in situ, she will be afforded exactly the same facilitation if there are any questions she wishes to pose to Deputy O'Callaghan. We will approach our business equitably. I call Deputy Fitzgerald to make her opening statement.

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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I thank the Cathaoirleach, Deputy Ó Caoláin, and the members of the committee for the early scheduling of this meeting following my referral last month of the general scheme of the Judicial Appointments Commission Bill 2016 for pre-legislative scrutiny. The Private Members' Bill in the name of Deputy O'Callaghan, which also proposes reforms in the area of judicial appointments, is also being considered today. The Government approved these measures as a scheme last month and the scheme is before the committee today for scrutiny. Work on the technical drafting of the Bill has been under way and it is my intention, following today's discussion and the feedback from the committee, to finalise the preparation of the Bill quickly with a view to publication shortly.

I will approach this in the following way. We have two measures before the committee, one is a scheme and one is a Bill. The first point I would like to make is that it is striking how much these Bills complement each other. We are both committed to significantly enhancing the judicial selection model with a strengthened new body with clear objectives, full powers, appropriate resources and a clear mandate to recommend the most meritorious candidate for judicial office to Government. It is appropriate that we consider these matters now, 20 years after the creation of the Judicial Appointments Advisory Board, JAAB. The board has served us well but it is our duty to continually look to the future and to attempt to improve processes where we can. It is clear that both pieces of legislation are committed to this. Where there are points of discussion about elements of the design, obviously we will have that discussion, and I will highlight some of these points in my presentation. In order to be helpful to the committee, I will address issues relevant both to the Bill before it and to the scheme, and Deputy O'Callaghan will do the same.

The scheme sets up a new commission. It is an ambitious vision, putting the new body on a dual purpose footing, to select candidates and recommend persons for appointment, but also to invest time, expertise and resources in redeveloping the requirements and procedures as a modern, professional and independent selection framework, fit for purpose now and into the future. The Private Members' Bill also establishes a new commission. It does not go into that much detail on the support measures. The Government scheme brings all appointments into the new arrangements so that, from now on, judges seeking judicial promotion, or to serve in a higher court, will go through the commission. This is significant and is in line with views from all quarters that this should be the case. That is not the situation at present. Sitting judges do not inform of their interest through the JAAB at this point. Deputy O'Callaghan's Bill also brings these appointments within the ambit of the new arrangements.

I would say that we each have a very different view as to how the very senior president and chief justice posts should be approached. We can discuss the respective merits of the different approaches. My preference is the Government approach which, in summary, involves a special committee under head 32 to consider expressions of interest working in tandem with the commission. I will make some comments about the role of the Minister later and I am suggesting a change in that. Head 28 brings down from the present minimum seven rule to just three names that the commission will now recommend to the Government for appointment. There will be two additional names to correspond with each additional vacancy. This is another major reform and again it is one that is being advocated by many different people. Deputy O'Callaghan's Bill also goes for three but there is a further qualification, that this requires the three names to be in order of merit and an additional one name only for another vacancy.

I want to put forward a very important constitutional point and I think that most people are agreed on this. The role of the Government, in the principle of it but maybe not the detail, under the Constitution in this matter requires a level of discretion. All of the legal advice says that. I would say that is not consistent with a statutory body providing only three names in order of choice. Similarly, even without an order, having only six names be recommended for four vacancies is inadequate for a real choice. As I say, there is a very important point, which is the Government exercising its constitutional prerogative. That may be unconstitutional if one is not giving that level of choice of candidates, by fine-tuning it down to that degree.

Again delivering on the Government programme, the scheme provides for a lay majority of one on the commission and a lay chair. I understand that there has never actually been a vote on the job, and that names have been selected by agreement in the past. I imagine that may well continue when we are talking about establishing the kind of professional body that we are considering here today. The vision here is to strengthen very considerably the present 20 year old model of lay involvement. Now there are just three lay people and eight judicial and legal persons making decisions, so it is a ratio of 3:8 at present. I would say that getting exactly the right input of lay expertise is difficult, but we can return to that. I think there is discussion to be had about what kind of lay experience is wanted, how the lay people are selected, and precisely what that brings to the table. I would say it brings a lot to the table and it is in line with being citizen-friendly and consumer-friendly, which is an important point.

I think it is enough for me to say at this point that it is essential that there is a critical mass of non-judicial, non-legal voices on the commission, covering a range of expertise and experience. That is to complement what I would say is the indispensable expertise and input of the Judiciary and the legal members as regards professional and technical suitability for appointment. Different countries have different ways of accessing that technical, legal and judicial experience, and bringing it into the process of selection. Scotland has a particular model where there is almost something like a gatekeeper role in terms of judicial experience being assessed in the first instance. We are not suggesting that but I make the point.

The Private Members' Bill, Deputy O'Callaghan's Bill, keeps the majority judicial and legal formula. I think that the scale of reform required here and the new professional selection organisation that we are creating moves us beyond that. The scheme also provides for a lay chair. I want to make the point to the committee that there seems to be no difficulty with this in England, Wales and Scotland, where the procedures have been fully reformed in recent times. It is a Government programme commitment. The Chief Justice is a member, of course. I believe that the overall balance here is right. We can return to this too.

Another perspective on this is that we will have a body with five judicial and legal members, five lay members, and an independent lay chair. We have allowed in our scheme for the representation of the Bar Council of Ireland and the solicitors' group, arguing that they bring a different perspective to the table than judicial members. The scheme that we are suggesting has five judicial and legal members, five lay members, and an independent lay chair.

One other similarity is the need to expressly recognise the key requirement, which is merit. We do that in different ways and we can discuss that. A big advantage of this scheme to support the Government's objective is a commitment to properly resource the commission. An office under the commission and a director would make all the difference to what is planned. This is about a professional body being established that can do this work, can look at international best practice and can develop. It is not just a body that we set up which experiences no development and movement. We want to give it the resources to develop best practice models to keep attuned with what is happening internationally.

Other matters addressed by the Government Bill include new accountability requirements, including accountability of the commission to an Oireachtas committee, and an annual statement by the Minister to the House about appointments made in the previous year. Academic lawyers become eligible for appointment as a judge in prescribed circumstances. The scheme makes service on the District Court bench calculable for the practice requirements for appointment as a High Court judge. That is an important and warranted advance, as is increasing to 70 the retirement age of District Court judges so that all judges will have the same retirement age. There are differences at present. It will be important to carefully monitor the implementation of reforms.

Head 10 requires the committee, within 20 months of the measures coming into force, to report to the commission on the implementation and effectiveness of the functions and procedures assigned to it. I would like to look at this again, and in line with the fact that it is just a scheme that I am bringing, and not a full Bill, I am recommending a couple of further changes that I would like to do in the drafting of the Bill. I am suggesting that the committee may agree to the need to include a review clause that would require the Minister, five years after the commencement of the Act, to review its operation and, within one year of that, to prepare an analysis and report on the matter to lay this before the House. This would allow all sides to revisit the reforms and see precisely how it is working. I am determined, and have been as Minister for Justice and Equality, to ensure that all judicial appointments are made on merit.

Before I turn to other matters, I would mention to the committee that I intend to include in the legislation a prohibition on canvassing, which would make it unlawful for any person, candidate, applicant or otherwise, to seek to interfere with or compromise in any way the selection procedures. This issue has been mentioned by the Judiciary as well and subject to Government approval, a relevant provision should form part of the reforms. We see this, for example, when the new police authority is appointing people to promotions within the ranks of An Garda Síochána. There will now be a specific clause saying that it is an offence to canvas for a promotion. It will be a disqualifying offence. That has to be drafted.

I would like very briefly to look back at the changes to the judicial system, and to make a number of points about them. Looking back briefly, the first major change that was made to this was in 1995, and it was quite ground-breaking then. It is important for us to cast our minds back to that and remember that up to that point in 1995, selection and appointment of judges were entirely the preserve of the Government of the day. There were no intermediate steps, there was no separate authority involved in the process, and no information was provided about appointments. While at this remove looking back at measures that were introduced 20 years ago in the Courts and Court Officers Act 1995 we might say they were minimal, at the time it totally changed the way Government approached the whole question of judicial appointments. Other jurisdictions have moved on since, and international instruments provide more guidance on best standards.

However, I would make the point, and I have looked at all of the international approaches to this, that there is still huge variation. In New Zealand, for example, which is the highest ranked country in terms of judicial independence, the Attorney General selects all of the people to present to the Government of New Zealand for judicial appointments, and yet it is still ranked at the top internationally. However, there is a growing consensus about what constitutes best practice, which we want to capture. I am not suggesting that we have had anything other than an excellent Judiciary. It served us well before 1995 and I believe we have had an excellent Judiciary since then too. It is important for public confidence that there is an independent and professionally operated and overseen system for selection of judges, based on transparent criteria, upstream of the relevant decision of Government.

As such, we must move on and continue to protect the independence of the Judiciary and guarantee to the greatest extent we can that the quality of our judicial system is maintained in today's conditions and the ever-changing environment around accountability, governance and administrative efficiency.

When it comes to reform of the system, the important point is that the establishment or amendment of a judicial selection system through legislation is a matter for the Oireachtas alone. As long as what is proposed is constitutional and not retrospective, there can be no authority other than the Oireachtas as to what the new legislative arrangements may be. It is the prerogative of Government or, as we see today, any Member of the House to bring forward proposals to the Oireachtas for enactment. Judicial selection is not part of the judicial function. The judicial function is to apply the law, interpret the Constitution and defend it. The reason the Judiciary is involved in judicial selection is because the Oireachtas assigned it that role in legislation. In my view, no one could argue against the Judiciary having a major input into the judicial selection process because of the key skills, knowledge and experience of the judges. Nothing has changed constitutionally. In theory, the Oireachtas could repeal the Judicial Appointments Advisory Board and not replace it with anything. Of course, that is not a viable option but it illustrates the respective roles of the arms of State in the process and the choices we have in that matter.

In terms of the views of the Judiciary, I want to make a few points and I need to say the following. The Irish Judiciary is now and always has been one of the great successes of the Irish State. Its enduring independence has provided a constitutional structure that has enabled the State to withstand enormous political and economic threats to its existence and stability. The Irish Judiciary is consistently among the top ten most independent judiciaries globally. It is worth noting that point. The judicial appointments review committee, or JARC, is a committee of senior judges headed by the Supreme Court's Mr. Justice O'Donnell and it has submitted views on the scheme. The JARC also submitted very extensive views and analysis in 2014. The Chief Justice has also submitted views. The Judiciary has indicated that is does not agree with aspects of the scheme, suggests that prior study or research has not been conducted and argues that elements of the scheme are inconsistent with and contrary to international guidance and best practice. The most serious criticisms are directed at the new commission, in particular its composition and lay chair, as proposed.

I want it to be clear that the scheme reflects much of what the judicial committee proposed in consultations, if not precisely in the manner proposed. For instance, we propose that the scheme covers all posts, including promotion of judges, that only three names will be recommended to Government, that merit is included as critical guidance to selection, that there is a properly resourced system, and that the selection process is independent and professionalised. The Judiciary has mentioned international benchmarks, but international standards for protecting judicial independence recognise that there is a range of models to choose from and that democratic involvement through government is a legitimate form of judicial selection. Even in our three immediate neighbouring jurisdictions, there are different arrangements in play in relation to lay participation, lay chairing and other areas.

There has been consultation which has helped to inform these proposed changes. In 2014, we received 27 submissions from a range of different people and bodies, including both of the professional bodies and the Judiciary. Guiding principles under heading five provide an important reference for these reforming measures, the systematic development of processes and requirements for which the commission will have responsibility, and the approach of the Executive to the appointments process. These principles underpin the reforming provisions of the scheme. It is actually the processes the new body will use that are critical. While the composition is very important, how the commission does its work and the processes it develops to do its work, which I have outlined to some degree, will prove the effectiveness of this body.

At the heart of these reforms, we are putting in place a new commission to replace the Judicial Appointments Advisory Board which had, or at least exercised, a somewhat restricted remit under the 1995 Act over the intervening period of 20 years. The need for transparency and accountability and the complexity and extent of the environment within which the judicial system now operates demand something new. They demand not only that the new commission will have a much more exacting and hands-on role in the selection of judges, but also that extensive new work is carried out with an ongoing remit to update the requirements for selection and the manner of selection to take account of the very many considerations which are prescribed in the scheme. The framing statute is not the place to specify the attributes of candidates to a definitive degree. The procedures committee provided for under heading ten will do that under the auspices of the commission with the support of expert analysis and research. It is a major advance to have in place on a permanent basis a commission part of whose remit will be to develop fully professionalised selection processes. The principle is selection based on merit but the layout of the detailed components of merit will be left to the commission.

As such, the commission will have a developmental remit but, of course, its routine function will be to recommend three persons for a judicial vacancy. This is a major advance in terms of the value being brought to the procedure by the commission from the 20 year old requirement to provide a minimum of seven names. Indeed, three names - let me recognise that this where the Private Members' Bill and the Government measure intersect - is the lowest number advised as constitutionally and legally permissible as committed to in the programme for Government. I have taken extensive advice on this aspect. There are important differences linked to this provision between the measures. I am satisfied that three names without an order of merit and an additional two, to give, for example, a total of five recommendations when there are two vacancies, or seven where there are three vacancies, and so on, is the correct balance given the constitutional role of the Government.

The question of ranking names was considered by the Judicial Appointments Advisory Board and, in its annual report in 2002, discounted as placing, by the judges themselves which is an interesting point, too great a restriction on the constitutional prerogative of Government to select judges. As such, I have concerns about the constitutionality of ranking and clearly we differ on that point. The scheme also contrasts with the 1995 provisions by bringing promotion of judges from one court to another into the framework of the commission. This, in itself, is a major change but it was invariably mentioned in the public consultations and it adds enormously to the transparency and equity of the whole appointments process.

I go back to make further points on the composition of the commission. The board, or, as it will now be, commission, itself is changing. I acknowledge that the Government's view on this is not universally accepted. The Private Members' Bill increases lay membership of the board and although I am not convinced of the merits of the nominating-body mechanism for procuring that expertise, it is nevertheless a fair recognition that the existing position regarding lay input is inadequate. It is inadequate not only in terms of the numbers, but also in terms of the range of expertise and experience being covered. In effect, the lay input has been reduced since the Judicial Appointments Advisory Board was expanded to include the President of the new Court of Appeal just over two years ago. As such, even the rather minor role of lay persons as envisaged in 1995 has been diluted not by design, but because there is a new court.

As the position in other jurisdictions varies greatly, it is important not to generalise. However, expert lay persons, including in some cases lay chairpersons, bring to the process expertise such as that of senior civil service and public services managers, human resources and recruitment specialists, education and training experts, senior commercial executives, and equality and diversity experts. In fact, some of the most respected academic research I have been looking at contains interesting observations on the importance of lay input into selection. That is not to undermine the importance of judicial input, but to recognise that, in respect of what we expect from our courts and the range of decisions they have to make, a wide variety of experience is essential in terms of determining who is best placed to be a member of the Judiciary. A modern appointments process should be driven by a commission that can draw on these specialist qualities.

The commission should have at the centre of its decision making the experience lay persons have of the system of justice from the perspective of consumers of court processes, be it in family law, criminal law or any other aspect of the law. In this context I have in mind interest groups involved in law matters, penal matters, victim concerns and community law interests acting in a representative capacity locally and otherwise.

What we are trying to achieve in the cohort of lay people on the commission is a mix and balance of relevant skills, knowledge, expertise and experience across a range of areas which will enhance the judicial selection process by widening the perspectives brought to bear on it. The purpose of the enhanced lay participation is to complement the key expertise of the Judiciary and of the legal members and not to seek in any way to minimise the role of serving judges. There is less still any suggestion intended that there is any distrust in the manner in which our senior Judiciary has conducted the recommendation process over many years and I have already outlined the value of the Judiciary in the development and functioning of the State.

Reducing the number of judicial members in order to contain the board or the commission at a reasonable number, which I suggest is certainly no more than the current number, while wishing to broaden the expertise of the commission in the way I have mentioned, simply implies that the judicial member complement must be less than it is at present. There are five presidents in the courts. If the board is to have judicial representation as well as allow the members of the Bar Council and the Law Society, the Attorney General and lay members to have a voice, this is inevitable. However, the scheme provides that two of the most senior judges will be members of the commission while another court president will participate ex officio. I believe that this constitutes substantial and senior input on the part of the Judiciary and therefore the construction of the commission is not inconsistent with certain guidelines including the recommendation of the Committee of Ministers of the Council of Europe. I note that the European Network of Councils for the Judiciary stated clearly in its Dublin declaration, which is often quoted, that "[t]he judiciary must not necessarily have an absolute majority membership on such a selection and appointment body".

Deputy O’Callaghan’s Bill opts for a list of nominating bodies to provide lay persons. I consider there to be difficulties with such an approach because there are potentially dozens of bodies. This is a point for discussion between us. One could contemplate consulting to nominate a lay person, but in my scheme I have suggested taking a somewhat more generic approach that the Public Appointments Commission can reference in its recruitment of commission members. It is not easy to get this completely right and I am open to discussion on the best way to select lay members. I have opted for a particular model that outlines the type of criteria and skills we would like to see in lay members and suggested the Public Appointments Service recruit them. This will be an extremely important body. It is important that people are put through a rigorous procedure before being nominated to it as opposed to perhaps a more straightforward nomination from organisations.

In the scheme, I have indicated an approach that provides for a dual list of skills for the selection of lay members. I have received criticism that this may not be the best way to go and am open to examining it with a view to its simplification. It may be too complex the way I have outlined it. We have received feedback from some selection bodies to the effect that it may be too complicated a way to do it. However, I think everyone accepts that we need to define a reasonably wide set of expertise and experience that we want among the lay candidates and some means of ensuring that the five lay people who are delivered onto the commission have amongst them the widest possible representation of skills across the areas we consider important.

Lay chairing of selection commissions in other jurisdictions is not uncommon. The corresponding commissions in England and Wales and in Scotland have a lay chairperson. Again I accept that not everyone will agree with this measure. The Private Member's Bill retains the status quowith the commission to be chaired by the Chief Justice. That is an option, but I suggest that the chairperson be the most highly qualified lay person meeting the special criteria set down and selected after a rigorous process conducted by the Public Appointments Service. I also believe that it is better that the Legislature would have a role here too. It has been suggested that this is politicising the process. I do not believe it is. After all, the Dáil is where there is democratic accountability. It is appropriate that a proposed appointee satisfies the Oireachtas before confirmation and that the approval of the appointments by resolutions of the Houses will double-lock the ministerial appointment provision. I consider this a part of democratic accountability and do not believe it in any way crosses the boundaries in respect of the independence of the Judiciary. This is arguably more open than the current system. However, it is no reflection on the special qualities and insight of a Chief Justice and the commission will continue to benefit from that unique expertise and insight.

Head 32 provides for a new committee that will only deal with the posts of Chief Justice, President of the Court of Appeal and President of the High Court. The commission is involved in the referral of names to this committee, but it is the committee that will recommend names to the Government. I am suggesting this separate treatment of the highest level appointments. I consider it is warranted. However, in the drafting of the measure, I wish to signal now that some reconfiguration of the composition of this committee is under consideration. Having examined the matter, I believe the Minister should not have a recommending role and should not, as a member of the Executive, be on the committee.

I am sure Deputies will want to discuss how the committee would be ideally configured during the passage of the Bill. Other than the three senior posts, I would envisage a vacancy in the post of either President of the Circuit Court or President of the District Court being filled under the standard procedure. I prefer this more qualified approach to the one proposed in Deputy O’Callaghan’s Bill which envisages arrangements for the filling of all five leading judicial roles that would appear to be confined only to judges of the particular courts.

I do not think that the Private Members' Bill makes sufficient provision to support the work of the new commission although I am sure we can discuss this further. I am talking about having a dedicated resource unit under the direction of an accountable director who would have staff and am suggesting a sum of €500,000 for this purpose. I consider this to be an important statement of intent to underline the work I anticipate the commission will undertake.

The Deputy has provided for the involvement of the commission in the process of nominations of judges for the main EU courts and the European Court of Human Rights. This can be discussed. I consider the current arrangements to have worked well. We have some excellent representatives in the courts. It is important to remember that, when it comes to European court nominations, what is done here in Ireland is just one tier. There is a further tier of examination of every nominee to a European court.

Where the drafting work on the Bill, which has been ongoing, has revealed a need to clarify, reconfigure and adapt somewhat some of the provisions in the general scheme, this is normal and is done in consultation with my officials. Let me state, however, that none of the core elements which I have already covered this morning have been varied in principle in the Bill as drafted from the Heads that we are considering now. Elements such as the exact format of the new selection procedures and competency frameworks, transitional measures, which will have to be discussed, to allow the commission to immediately get to work and the extent of legislative repeals or restatement that may be required are undergoing some reshaping in the draft and the definitive position will be available when the Bill is published.

I would also like to link the reforms we are discussing today, which I believe are necessary and far-reaching, with a related suite of reforms set out in the Judicial Council Bill which will promote excellence in the exercise of judicial functions and high standards of judicial conduct and related matters. I have stated it already but will repeat that these reforms are absolutely fundamental.

We have seen how judiciaries in other countries, dictatorships, have been compromised. As I said, we have a system that I believe we can be proud of but which everybody agrees, including all of those who made submissions, needs to be further reformed. Reform is fundamental to the working of a democratic state. We are all aware of the many challenges that we face in our democracy and internationally. This is about ensuring that we have a system that is fit for purpose and suitable for the needs and challenges of a demanding 21st century environment.

I thank the committee for the opportunity to outline the approach in some detail, which I hope will be of assistance to it in compiling its report on the scheme and the Bill. I thank Deputy O'Callaghan for bringing forward his Private Members' Bill which I know was the subject of extensive research, expertise and hard work. I am interested in hearing the committee's views on this important topic, where we need to move to and how we can bring forward the necessary reforms. As I stated, there are a number of areas on which there is agreement but there are others in respect of which there are substantive differences and we need to tease these out.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank the Tánaiste for her comprehensive briefing. I now invite Deputy Jim O'Callaghan to address his Judicial Appointments Commission Bill 2016.

Photo of Jim O'CallaghanJim O'Callaghan (Dublin Bay South, Fianna Fail)
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I want to address the committee on four areas. My opening statement will not be as lengthy as that made by the Tánaiste but I do want to give the committee an overview of the four areas I would like to speak to it about, following which I will be happy to take questions.

First, I will speak about how the system currently operates; second, why the system needs to be changed; third, my Bill; and, fourth, the Government's scheme of its Bill. Before I commence my remarks on the four issues to be discussed, I would like to put on record my disappointment that the committee does not have the Government Bill before it. If we are to engage in full pre-legislative scrutiny of the Bill, it would be much more helpful if we had a copy of the Bill as drafted as opposed to the scheme of the Bill. I remind members that my Bill has passed Second Stage in the Dáil. As such, I do not propose to spend an inordinate amount of time repeating here what I said in the Dáil.

How we, as an Oireachtas, determine how judges should be selected is an extremely important matter. Under the Constitution, the Government nominates judges and they are then appointed by the President. However, we should not lose sight of the fact that under our Constitution justice is administered by judges. Justice is of major importance to the public. We hear that every day. As politicians we hear it too. We often hear people say that they were deprived of justice, that they want access to justice or that they believe they have not been treated fairly by the State. We need to bear in mind all the time that judges play a central and fundamental role in determining and delivering justice for Irish citizens. The position of a judge is no ordinary job; it is vitally important and we need to do our best to ensure that the best people are appointed to the position.

In regard to how the system currently operates, I am conscious that as a lawyer I will have a greater knowledge than other committee members of how the system operates. At present, when a vacancy arises in a court, the Judicial Appointments Advisory Board places an advertisement in a newspaper or online inviting applications for appointment as a judge to the District Court, Circuit Court, High Court, Court of Appeal or Supreme Court. The board will then receive a series of applications from lawyers because only lawyers can apply to be judges. The job of the board is to process those applications. In many instances, particularly in respect of the District Court, hundreds of applications will have to be processed. The job of the Judicial Appointments Advisory Board is to determine who is suitable for the position. It is not the function of the board to try to identify the best candidate. It is a filtering process in the determination of suitable candidates. The Judicial Appointments Advisory Board is required under legislation to provide the Government with the names of seven individuals which it believes are suitable for appointment to a particular vacancy. Sometimes more than seven names are provided. Obviously, if there are multiple vacancies there will be many names put forward by the board to the Government.

When the Government receives the list of names, it then makes its decision as to who should be selected. Under the Constitution, and the Tánaiste's proposed scheme and my Bill, the Government can choose whoever it wants. It does not have to select a name from those provided by the Judicial Appointments Advisory Board. I believe it is appropriate that the recommending body should carry greater authority and that it should filter down its nominees such that the Government is aware of who it believes are the best persons for the position. If the Government chooses to appoint a person not recommended by the Judicial Appointments Advisory Board, it must state in Iris Oifigiúilthat, for example, Caoimhghín Ó Caoláin has been appointed as a judge of the Supreme Court but his name was not put forward to it by the Judicial Appointments Advisory Board. That is the only downside if that arises. Usually if, say, Caoimhghín Ó Caoláin was nominated and appointed, it will state in Iris Oifigiúilthat he came through the Judicial Appointments Advisory Board system. The Government then nominates an individual and he or she is appointed by the President.

The second issue is why the system needs to be changed, in other words, what is the weakness in the system. The weakness in the system is that when a large list of names is presented to Cabinet most of them, in fairness to them, do not know how to go about choosing one person from a list of 24 for a District Court position. There is no reason that politicians should be aware of who is the most suitable or best candidate. People who are interested in reading State papers will know that over Christmas and the New Year the State papers from 30 years ago which were published included a record of Alan Dukes, when Minister for justice, stating that he did not know who was the best candidate or who should be selected to be a judge. He said that he felt it was a matter primarily for the Attorney General. In fairness to members of Cabinet, most of them do not know who are the most suitable candidates. It is unfair to put that pressure on the Government. If RTE was appointing a new director general, it would follow the process of setting out the selection criteria and a selection body would then identify an individual who would be recommended to Cabinet. The Cabinet could disagree with it but, in general, it would accept that recommendation.

It is true - it is important we live in the real world - that people who have political connections are at an advantage if their names are on the list which goes to Cabinet. It is often said that canvassing should be prohibited. I have never been in Cabinet but I suspect much canvassing goes on for the purposes of appointment of people to the Bench. I suspect there are people who have been appointed because of political connections. Many people who are appointed because of political connections turn out to be excellent judges. I have no objection to that. We should not have a system whereby because a person is involved in politics, he or she should be excluded from subsequent nomination to judicial office. What we do not know, and I am sure this happens, is if there are good people who applied to be judges and because they did know anybody in Cabinet or any Deputy, were overlooked and never got the opportunity of being promoted to the position of judge. For all of these reasons, the system needs to be changed.

We need a recommending body that can identify who it believes will be the best person for the position of judge. We should have a recommending body that ranks individuals in terms of their suitability for the job. Under the Constitution, which is appropriate, the Government has the final say. Regardless of what system is in place or how it operates, the Government can disregard the list of candidates provided by the Judicial Appointments Advisory Board and appoint a candidate of its choosing. That is the scheme that currently operates under the Constitution.

However, it needs to be changed and broadened to ensure that it is fairer and the best people - there may be people whom we do not know and who do not have connections - have an opportunity to be considered and appointed.

That brings me to my legislation, which was debated in the Dáil on Second Stage. I will not bore the committee by taking it through the Bill section by section, but I will make a number of points on it. My Bill establishes a judicial appointments commission to recommend to the Government the names of individuals who it believes would be the most suitable, based on merit, to be judges. For each position, it will recommend three people. The Tánaiste's scheme has the same provision. Under my scheme, however, the three will be ranked as Nos. 1, 2 and 3. In no way does that offend the constitutional prerogative that rests with the Cabinet. Under neither scheme must the Cabinet opt for anyone on the list. However, there is a benefit in the Cabinet being told by a body that has expertise that it believes that these are the three best people in a certain order.

Another way that my scheme is relevant concerns the membership of the commission. Like everything in Ireland, memberships of commissions seem to get a great deal of political interest and media comment for some reason. What is the best body of people who would be qualified to recommend those - if we are to be frank about this, it is only lawyers who can be judges - barristers and solicitors whom they believe would make the best judges? The people who know are judges themselves and others who have experience. Under my scheme, there are 12 members on the commission. These include the Chief Justice, who is President of the Supreme Court, and the presidents of the Court of Appeal, the High Court, the Circuit Court and the District Court. They would be "judicial members".

Interestingly, the Tánaiste has adopted hook, line and sinker the language put into her mind by the Minister for Transport, Tourism and Sport, Deputy Ross, which is all about lay people and non-lay people. It is offensive to judges that non-lay people, under the Government's scheme, are described as being judges and lawyers. Judges are not practising lawyers. They were lawyers formerly. It is wrong and misleading of the Minister, Deputy Ross, to give the impression that judges and lawyers should be regarded as belonging to the same group. We should get away from that impression. We are discussing judges, so we should refer to judicial members and non-judicial members.

Under my scheme of 12 members, there will be five judicial members and seven non-judicial members. As to those seven, there will be representatives from the Bar Council, the Law Society, the Citizens Information Board, which has direct contact with the citizens of this country and knows their needs, an tÚdaras um Ard-Oideachas, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission and the Free Legal Advice Centres, a body that provides exceptional advice to people in Ireland who are of limited means. This is the membership of my commission. I picked it not because I am a lawyer and want to have my mates on it or it is a cabal, as the Minister would present it. I picked it because these members are persons who have the best interests of the Irish people at heart when it comes to identifying individuals who would make good judges. It is farcical of the Government to suggest that judges, such as presidents of the courts, will want to select for recommendation people who are their friends. Let there be no doubt about it - that is the current in this provision. It is not even an undercurrent. It is a wave that is being presented by the Government to the effect that these people cannot be trusted because they will just want to pick all of their mates for positions.

I view these individuals as I would a school principal. If the Chairman was a principal and was asked to select a new teacher, he would want to ensure that the teacher was fair and a hard worker. Similarly, the same would apply to the presidents of the courts while on this recommending body. They will want to ensure that the people who are chosen are effective and useful.

I will examine the question of the other nominating bodies in more detail when we compare that suggestion to the system that the Tánaiste has proposed. Under her system, the Public Appointments Service would select the six lay members on the Government's proposed 11-member commission. That will give rise to difficulty, but I will reserve comment until I reach the Tánaiste's Bill.

A further issue of some conflict concerns the chairmanship of the commission. In many respects, this is not a major issue. Under the Government's scheme, the Chief Justice will be a member. I will give the Tánaiste time to answer my next question. Can she name any committee on which the Taoiseach sits of which he is not chairman? She can revert to me in due course. I suspect that she will not be able to identify one because any individual putting together a committee that included the Taoiseach would know that putting him on it without having him chair it would be disrespectful, not to Deputy Enda Kenny, but to the office of Taoiseach. Similarly, requiring the Chief Justice to be on a committee in respect of judicial appointments when she is not the chairperson is disrespectful to the office of Chief Justice. I regret to say it, but this is consistent with the Government's attitude of disrespect towards the Judiciary. There is no policy reason for the Chief Justice not to chair this body. Undoubtedly, the Tánaiste will tell me that it is a commitment in the programme for Government, which means that this was agreed with the Minister, Deputy Ross. We all know that Fine Gael agreed to this at a time when it would have agreed to draining the Shannon to get into power.

I will address a further important part of my Bill that differs from the Tánaiste's. In mine, I set out specific criteria if people are to be appointed as judges. It is important that the public be apprised of what qualities one needs to be appointed. This provision is not found in the Tánaiste's scheme, but it can be in my section 15. It is important that we set out in our legislation matters that may seem obvious. One needs integrity, independence of mind, moral courage, a high level of intellectual skill, sound temperament, common sense, impartiality, objectivity, fairness, equanimity and composure. I have set these out. The greatest judge in the world will not have all of them, but they are what we should aspire to seeing in those whom we appoint to the Judiciary. It is useful for the public to know what is required.

An undertaking is given in both Bills to engage in training. However, the Tánaiste's scheme has no mandatory requirement for there to be interviews. Under my scheme, persons who are to be recommended must be interviewed by members of the commission.

The main substantive difference between the two proposals is that nothing really changes under the Government's. The new recommending body will nominate three people, whose names will go to the Cabinet. The Cabinet will then operate in the same way that it does now. It must consider the three names. If it does not like them, it can say that the person it selects was not recommended by the commission. Under my scheme, there is a greater hurdle for the Government to overcome. The Government gets the names of Nos. 1, 2 and 3. If it does not select or recommend for appointment any one of those three, it must give a reasoned decision for that.

That is worthwhile and it brings greater transparency to this whole process. One area where I agree, and where I have changed my mind since the Second Stage of my Bill, is on the Minister's proposal that District Court judges should be eligible for appointment to the High Court. Having looked at it, that is fair. If one is a lawyer of 20 years standing, one can be made a District Court judge, but if one becomes a District Court judge after one's 20 years of standing one becomes ineligible for appointment to the High Court. It would be unfair for that situation to apply. Under my scheme, we will increase the number of years that people have to have been practising before they become judges. They should have 15 years in practice before they can be appointed to the superior courts. That is the proposal I have in respect of the scheme. I do not think it is perfect. It is a proposal I have put forward and I am happy to accept changes to it. I welcome the fact Deputy Daly was the only person who proposed amendments to the Bill when we came so close to our committee hearing many months ago. When we get to it in the future, I will consider any other amendments.

That brings me on to the final part of my submission, and I am sorry for taking up the time of the committee but I will finish after this. It is in respect of the scheme put forward by the Government. I will make some points on it, and I have made some of them already. In head 2 there is a categorisation of laypersons, which merges people who hold judicial office and people who were or are practising lawyers. It is inappropriate to merge them together. It is simply playing to agenda of the Minister, Deputy Ross. Why is it that under the Government's scheme former judges are precluded from being on this recommending body? If one is trying to identify somebody who would have a good idea of what it takes to be a judge, one would have thought a former judge would be suitable to fulfil that role. Under the Minister's scheme it is not permitted.

I want to jump forward to head 7 of the scheme, which is the membership of the judicial appointments commission. Another difference between the Minister's scheme and my scheme is that I want to have the recommending body completely separated from the political process, so that there would not be people who were part of the political process on the recommending body. For that reason I thought it was inappropriate to have the Attorney General on the recommending body. Under the Government scheme the Attorney General is on the recommending body. Names will come into the judicial appointments commission, the Attorney General will be part of that commission when the names are being considered and those three names will then be put forward to Cabinet where the Attorney General will also sit. That does not achieve the objective of separating the political process from the initial recommending process. The political process is ultimately going to decide who is appointed. The recommending process should be protected. There is replication and infiltration between the two bodies if the Attorney General is on both.

Under the Minister's scheme there are to be 11 persons on the commission. Only two of them are to be judges. It is wholly inappropriate that only two out of 11 are judges. The Chief Justice is on it, as one of the ordinary members of the commission, and then there is either the President of the Court of Appeal or the President of the High Court. It may be the case that the President of the Court of Appeal and the President of the High Court preside over courts which deal with more serious issues, but most judges are appointed to the District Court. The District Court is the court that has the most direct involvement with members of the public and the Circuit Court is just above that. It is farcical that a body such as this would not have the President of the District Court and the President of the Circuit Court on it. These are the men and women who run the courts and who have most interaction with the public. They know what a good judge is. All they want is a judge who is going to work hard and be fair. To deliberately exclude them from this displays a complete lack of awareness of the requirements of a new system.

Under the Minister's scheme, there is the Chief Justice and one other judge, either the President of the Court of Appeal or the President of the High Court, will be on the commission and they will have to fight it out among themselves as to which one of them gets on it. The Government does not even have the strength to just pick one of them, it leaves it to the judges to decide.

Then we have five lay members, and this is where I have a concern. It is easy to be criticised as a lawyer for giving out about lay members. I have no objection to lay members fulfilling the important roles that they do - for instance, in a disciplinary body. If the legal profession is being regulated and someone is being disciplined it is appropriate and essential that the body that is disciplining that lawyer should have a majority of lay members. This is because there is a fear that if there were only non-lay members or lawyers that they would be too favourable to the lawyer involved. That is a perfect occasion when lay members are required. No explanation has been provided for the lay members here.

Let me just tell the committee exactly what my concern is. The type of lay people who will apply for a position on this judicial appointments commission will be, to a large extent, people who have their own political agenda. We will have people who are pro-life and pro-choice applying, because they will want to ensure that judges who are appointed represent their political agenda. We will have representatives of people who want to be very strong on crime and lock people up and people who want to be very soft on prisoners and open the gates. We are just giving an opportunity to individuals who have their own political agendas to bring them forward.

A better way to approach it is to do as I have done and have a body comprising organisations such as Free Legal Advice Centres, FLAC, and the Irish Human Rights and Equality Commission, two highly respected bodies, and a couple of others, which will identify suitable individuals for recommendation. Another Minister criticised those bodies but that is the mechanism that is used on the Legal Services Regulatory Authority which the Minister steered very effectively through the Dáil. If it is good enough for the Legal Services Regulatory Authority why is it not good enough for this?

On these lay members and selection, if we were choosing a cardiologist for St. Vincent's Hospital, I would hate to think that someone like me would be on the panel suggesting who that cardiologist should be. I have not a clue what is required. Similarly, if there was a vacancy for the editor of The Irish Times, there would be a need for people on the selection body who are experts in journalism. On the cardiology interview panel someone who is an expert in cardiology is needed. These lay people sound great and it fulfils the agenda of the Minister, Deputy Ross, that we are going to have a majority of lay members, but I do not know who they are going to be. There should be non-judges on it and they should be selected by bodies such as the Irish Human Rights and Equality Commission, FLAC and the Competition and Consumer Protection Commission. We do not know what we will get or who will get on it when we open this to the Public Appointments Service.

I raise one other issue of concern. My concern developed yesterday when I read the scheme again and it has increased this morning. The Minister said that this new commission will have funding in the region of €500,000 a year. This was supposed to be the Government that would cut quangos. The last thing we want is to create this new entity, the judicial appointments commission office, which will have a glossy annual report and its own PR firm. We do not need that. We need individuals who are committed to public service who are going to sit on it and make their recommendations. I do not know how many judges are appointed each year but I suspect it is no more than 20. What is the point in giving €500,000 to a body that is asked to recommend three individuals for each vacancy on the Bench? It seems that we are once again are creating mini-empires. What really worried me is that head 8(3) allows the commission to engage consultants and advisers.

That is replicated in head 19 which discusses the director of the office of the judicial appointments commission and the staff of the commission. This has been done to date by the Judicial Appointments Advisory Board, which only meets when there are vacancies. What is this body going to do when there are no judicial vacancies? We should be wary about setting up another quango.

Head 22 is very limited in what it sets out. It simply says in order to be appointed one must be suitable on grounds of character and temperament. We know what that means in an Irish context. Provided one is not barking mad one fits within the categorisation.

I welcome the fact that under head 23, persons who are qualified for appointment to the superior courts will be former judges from the EU and former judges of the European Court of Human Rights. It is important that this is provided for in the legislation. This area needed to be looked at. There was always a precedent and convention that judges who served in those courts would be reappointed on their return. The previous Government did away with that convention.

It is interesting to note that head 35 allows the commission to recommend a member of the commission. That is interesting. It is permissible provided all members are available for recommendation. Head 36 is the crux of the Bill. This very expensive process will be set up and at the end of it, the only sanction on the Government is that if it does not select one of the recommended people, the notice must be published in Iris Oifigiúil. That is the sum total of it. In fairness to the Tánaiste, I do not think she does not agree with it. I think it has been presented to her by the Minister for Transport, Tourism and Sport. It was agreed in the programme for Government and it is being pushed forward because it is in the programme for Government. I do not think the Tánaiste believes in it and that it will damage the appointment and selection of judges in this country. We would be better off leaving it as it is. This is all I have to say.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Deputy O'Callaghan for a very thorough presentation on his Bill and his views on the scheme presented by the Tánaiste this morning. There will be an opportunity to respond but I do not want this situation to be dominated by an exchange between the Tánaiste and Deputy O'Callaghan so I will open it up to members to make their respective contributions and pose questions. We can then create an opportunity for rebuttal so to speak if the Tánaiste so wishes.

Photo of Jonathan O'BrienJonathan O'Brien (Cork North Central, Sinn Fein)
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I will be brief. When Deputy O'Callaghan's Bill was going through Second Stage, we supported it because we believed there needed to be changes to how judges are appointed. Having said that, we did raise some issues about the Bill during our contribution. We said that we wanted to see it go to through to Committee Stage where we could address some of those issues. When we discussed Deputy O'Callaghan's Bill, we did not have the general scheme of the Government's Bill. We now have that and must take it into consideration as well. We would be very favourable towards many things within the general scheme - more favourable towards them than towards what is contained in Deputy O'Callaghan's Bill. We supported his Bill but we did not have the general scheme then.

Funding was one of the issues touched upon by Deputy O'Callaghan. It is my understanding that funding will be used in a number of ways. One of the areas the Government has looked at is that the commission would appoint a committee which would be responsible for codes of practice. It talks about looking at international best practice, drawing up criteria and those codes of practice and being able to get information and research. Obviously, there is a cost associated with that. I cannot put a figure on it but I certainly would not be opposed to some funding going towards research and looking at other jurisdictions to see what best practice is in terms of selecting judges is.

Another area touched upon by the Government is looking at how we can diversify the people selected as judges. Page nine of the general scheme talks about how other jurisdictions have developed comprehensive merit criteria to address such issues as ability, communications, work ethic, decision-making capacity and integrity. It goes on to talk about awareness of the diversity of communities and how the commission will be tasked with developing appropriate codes of practice in respect of this matter. This is an important element. It recognises that we are a diverse society that is becoming multicultural. The selection of judges needs to reflect that so I completely agree with that in terms of guiding principles.

On the question of whether it should be a lay or non-lay majority or as Deputy O'Callaghan would describe it, a judicial or non-judicial majority, one of the reasons we are having this debate is because there is a perception out there that judges are selected not on merit but because of who they know. I know Deputy O'Callaghan referenced that in his contribution. It may be a very unfair perception but it exists and is a reality that we need to deal with. I do not think Deputy O'Callaghan's Bill would address that perception because what he is proposing is that we would have a judicial majority and would not necessarily have a lay chairperson. We can go into the ins and outs and rights and wrongs of it but when it comes down to perception, it is important that we would have a lay majority and a lay chairperson for that purpose. Deputy O'Callaghan spoke about people wanting to see justice being delivered and how it must be seen to be done. The current situation whereby a judge is appointed is completely unfair. That judge could be appointed for all the right reasons but if they have political connections, from the moment they are appointed, there is almost a shadow cast on them. People question whether they were appointed because that they have these political connections. It is unfair on the individual and unfair on the system so we agree with what the Minister proposes.

In terms of the selection of the lay personnel on it, we would certainly lean towards the criteria laid out by Deputy O'Callaghan. I do not see any disadvantage in having nominating bodies which could recommend people for that position. However, there is a lot of merit in what the Minister is saying, namely, that the Public Appointments Service would select them. I do not know whether a happy medium between both of them exists. Could we have a situation whereby bodies could recommend people but, ultimately, it would be the Public Appointments Service that would actually select them? If we can find that happy medium, we could have the best of both proposals.

The issue I really want to focus on is the constitutional requirement relating to the Government. I am not a constitutional lawyer - far from it - but I have spoken to some constitutional lawyers. There seems to be a difference of opinion on this. It is my understanding that the only requirement is that the Government would nominate somebody to the post of president and the president either then signs off on that or not. The Tánaiste might be able to clarify an issue I have relating to the constitutional requirement that it would remain within the power of the Cabinet to make that nomination. The commission puts forward three names.

I do not agree with ranking them. That would be the wrong way to go. I have no issue with the recommendations coming forward. They are all coming forward based on merit and on candidates' expertise, experience, integrity and the other criteria that will be laid out. In terms of satisfying the constitutional requirement, not having them ranked would be more desirable. It is my understanding that once the three names are put forward to the Government, that satisfies the constitutional requirement and the Government can then select one person for nomination.

The debate must focus on one of the difficulties I have with both the Bill and the general scheme. As I understand it, although I am not 100% sure with regard to Deputy Jim O'Callaghan's Bill, both provide that the Government does not have to select any of the candidates who have been proposed, which defeats the whole purpose of the commission. The commission is being established to determine suitability vis-à-visthe criteria laid out and to recommend people for selection as judges. The constitutional requirement is actually met when the commission puts forward the names of suitable candidates and there should be an obligation on the Government to select one of the recommended individuals. I do not know how that goes against the constitutional requirement because it is my understanding that the Constitution holds that the Government has the right to select someone for nomination. Once the names go forward, the Government should be obliged to select one. I ask for clarification on that point.

If we had to vote tomorrow for the general scheme from the Government or the Bill, we would probably come down on the side of the general scheme. The provisions of the general scheme make the process more open and transparent and would address some of the concerns around judicial appointments. Sinn Féin fully agrees that the commission should have a lay majority and chairperson. We also fully support the appointment of such lay persons by the Public Appointments Service, PAS. As I said, we are not opposed to the funding idea either. There is merit in both the general scheme and the Bill but if we are to address the commonly held perception that judges are not selected on merit and if we want to put in place a new system for selecting judges, then we would be more favourably disposed to what is being proposed by the Government in the general scheme.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Thank you, Deputy O'Brien. Deputy Clare Daly is next, followed by Deputy Alan Farrell. On returning to both the Tánaiste and Deputy Jim O'Callaghan, there will obviously be the temptation, on the part of the Tánaiste, to focus on Deputy O'Callaghan's presentation and vice versa. In that context, could we take the questions from the three Deputies together and then open up into a more substantive response from both the Tánaiste and Deputy O'Callaghan? Is that agreed? Agreed.

I ask the Tánaiste and Deputy O'Callaghan to note the critical points already made by Deputy O'Brien and those to be made by Deputy Clare Daly and Deputy Alan Farrell and then to respond to them collectively, as well as to each other, as they deem appropriate.

Photo of Clare DalyClare Daly (Dublin Fingal, Independent)
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We are all very new to this process. It is a different scenario for everyone here.

I do not want to repeat points that have already been made but we had tabled a number of amendments to Deputy O'Callaghan's Bill. Indeed, we had amended our own amendments before we got to the committee and events developed. In advance of today's meeting, we prepared a detailed critique of the Minister's heads of Bill but it is possibly too detailed in the context of where we are at now. Therefore, I will give my initial reaction to some of the broader points raised. I will probably forget lots but perhaps we will be able to go into more detail later.

First, on the membership of the commission, specifically the lay chairperson and lay majority, this is something that we wanted at the time of the publication of Deputy O'Callaghan's Bill. We are happy to see that included in the Government's general scheme. It is important to say that this is not about "one in the eye" of the Judiciary or the legal profession. It is about a particular view of the Judiciary. People with a legal background, very understandably, see appointment to the Bench as a career progression and as something that should be controlled by experts. However, for ordinary people, the appointment of judges is a social matter. They see judges as people who work for society, not for the legal profession, and therefore it makes sense for judges to be appointed by members of the society they serve and for them to be allied to the needs of society. It is a difference of view and balance is achieved by equal representation on the appointments commission. The best way forward is to give both sides their due, so to speak. While it is unusual to have an even mix of lay people and legal experts on an appointments commission, it is interesting to note that when Scotland reviewed its procedures before introducing primary legislation, one of the points made was that a particular strength of the system was its even mix.

One of the problems I have is the inclusion of the Attorney General on the commission. I do not see any point in that at all. The Attorney General is a political appointee and at least in the early life of the commission, two of the judicial members will have been appointed under a political patronage system. While I am not in any way casting aspersions on their integrity or their fitness for office, nonetheless they came into their positions in that way. I do not see the purpose of including the Attorney General on the commission. I do not see what insights or skills he or she might add and perhaps an additional member of the Judiciary would be a better option.

There are points to be made about the legal members being nominated by the Bar Council and the Law Society. We would certainly have questions about that. Obviously, it is no secret that issues have arisen regarding senior members of the Law Society. There have been many cases of litigation and High Court proceedings in this regard. Similarly, questions about procedures at the Bar Council have been raised with regard, for example, to its nominee to the Legal Services Regulatory Authority. The Bill provides that judges should be appointed on merit. We absolutely agree that the idea of merit should extend to the appointment of lay members of the commission but why would it not also extend to the appointment of the legal members? The latter should not be appointed just because they are in with the "in crowd" at the Law Society or the Bar Council or because it is their chance or turn. I do not like that. We would prefer to see a system involving an open, public competition, with some minimum qualification requirements, like years in practice or some such. That could possibly be run by the Public Appointments Service, PAS, as per the lay members. Alternatively, as has been suggested by others, the Bar Council's nominee could be elected by the entire membership of the council, as in the recent selection process for the practising barrister panel of King's Inn. A similar process could be engaged in by the Law Society.

We are of the view that the legislation should stipulate that the lay membership should exclude anybody who has practised as a solicitor or barrister, either over a period of time, for example, two to five years or forever. That is something worth considering. The expertise of lay people and that being quantified in some way is necessary. I note that in the Minister's heads of Bill, we have a list A and list B of expertise criteria. Our reading of it is that list A is fine but list B is very restrictive and would limit the types of people who would be able to come forward. We believe it is important for a wide range of professions or disciplines to be allowed to be considered for the commission. Under list B as it stands, the only people who could qualify would be senior civil servants, solicitors and barristers.

We definitely need to expand that category. The explanatory memorandum provided notes about the types of lay expertise but we are keen to add to the A list people who have a background, for example, in sentencing, penal reform, perhaps addiction and working in the area of drugs. Such experience would be important.

Deputy O’Callaghan made some good points about how the lay people might bring their political views to the table, for example, pro-life, anti-abortion, pro-choice or whatever else. That is equally the case with anybody in society. A legal person could similarly want to be involved in the commission for precisely the same reasons. We must test the expertise of all. We are talking about merit and that must apply to all members of the commission.

We proposed an amendment to Deputy O'Callaghan's Bill about the making of appointments to the commission in terms of meeting the gender balance. That is a difficult issue because in the initial stages in particular one must recognise that currently there are huge gender imbalances in the legal and judicial profession and forcing a 50:50 split now would not give the best expertise because of this. We must strike a balance between trying to achieve a gender balance, which will probably only come in time rather than insisting on it as an absolute. How we formulate that will be important.

Reference has been made about the diversity clause, which we believe should apply to the legal and judicial members as well. I do not wish to spend a huge amount of time on the issue but in terms of head 10, for example, the code of practice function, we think it is very novel. We had not suggested it and Deputy O'Callaghan had not either. The basic idea is that the commission would create a code of practice based on its own research and the code of practice would be used, among other things, to draw up a list of selection criteria to which the commission would have regard in the appointment of judges. There are some very good ideas in the Bill but we have concerns about it at the moment in terms of how it is phrased in the heads, for example, why a subcommittee of the commission is necessary to carry out the code of practice function rather than everybody on the commission doing it. It is worth pointing out as well that it would not be possible to constitute a committee of seven members in proportion to the membership of the commission as given the way the numbers break down it is not mathematically possible for one to have people so one would not get the balance based on the proposed approach.

While giving the commission an important role in monitoring and implementing international best practice on the appointment of judges to inform the selection process is no bad thing there could be a certain long-fingering involved. I tend to agree more with Deputy O'Callaghan in terms of the points on head 22, his section 15. By contrast, we would be leaning more in favour of his section 15 rather than the Minister's head 22, which is about the list of requirements in relation to the appointment of judges. The Minister's list is extremely thin and Deputy O'Callaghan's has much greater weight and is far better in that regard. We would tend to err in that direction, without repeating any points.

On head 32, Deputy O'Callaghan's section 23 on senior appointments is better as well. It is more sensible than the Minister's suggestion, which relates to the appointment of the Chief Justice, President of the Court of Appeal and the President of the High Court. Deputy O'Callaghan's Bill empowers the commission to make a recommendation to Government for such senior appointments based on merit, a similar principle to all other judicial appointments.

As Deputy O'Brien said, we need to hear more about the constitutional issues. I agree with Deputy O'Callaghan about ranking. The candidates should be ranked. It will be up to the Government to pick one but given that the commission will be appointed to give its view on who the best person is for the job then the candidates should be ranked. The power is vested in the Government because we are told it is required constitutionally and that the Government cannot be constrained in the manner in which is suggested throughout. I question some of what has been said and I would like to hear more in that regard.

We have a number of detailed points on the various heads but they are probably too detailed for the present discussion. They probably touch off the broad points to which we would refer in this regard. We are open in our approach. I agree with what Deputy O'Brien said about whether there should be nominating groups for lay people or a role for the Public Appointments Service or if we should have some middle ground in that regard. It would be important to get agreement but we are very happy with the overall balance and having a lay chair. We think that things could be progressed.

The Minister referred to the judicial council Bill and that element of the work. It is at least as important if not more important for us to address those issues. There was some talk that the Bill would be fast-tracked and done in tandem with this Bill. That is necessary. Part of the project is to engender confidence in the judicial process. Not only have serious issues been highlighted about judicial indiscretion or the irrationality of judges in relation to cases involving me or others but it is almost a daily occurrence that members of the public find things difficult, in particular at District Court level, and do not have a mechanism to call into question poor practice by the Judiciary. It is about justice being seen to be done. Only last week Deputy Wallace and I met a serving member of An Garda Síochána who told us that in a family law case a judge had intervened with his partner's family and discussed the case with a family friend outside the norms of the court and gave the person a protection order against the individual. It was a complete perversion of the course of justice that a judge would informally deal with a family law case in such a way and give an order. That judge is still serving. There are many such issues and there is an urgent requirement to address them.

Photo of Alan FarrellAlan Farrell (Dublin Fingal, Fine Gael)
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I thank the Minister and Deputy O'Callaghan for their Bills. I will be very brief. I just wish to cover a couple of concerns I have, some of which I share with colleagues across all parties and they also touch on some of the observations made by the Minister.

I have a fundamental problem with the idea of a lay majority for a multitude of reasons. On the concept of a level of probity being present within the commission and-or the motivation for the Bills in the first instance, notwithstanding Deputy O'Callaghan's closing remark in questioning the need for either, I have a slight difficulty with the idea of a lay majority on the commission on the basis of qualifying criteria because, to oppose the view expressed by Deputy Daly, in my view the criteria in lists A and B are not restrictive enough. Anybody can be appointed to such a commission but he or she must have a basis for being appointed. One cannot randomly pluck a citizen from the street no more than one would from within the legal profession itself. One would not choose somebody who is unsuited to such a position, one would do one's best to find somebody who is reasonable but qualified.

I suspect that in certain cases, especially in regard to list B, the qualifying criteria need to be bolstered rather than reduced, as Deputy Daly suggested.

I also support the idea of promotion through the commission. I would leave it to constitutional experts to determine the ranking but, as somebody who served as an interviewer on a number of panels over a number of years I can say that panels always rank candidates. What is the point of doing an interview with a view to making a recommendation to employ somebody without ranking them? If the Department took the view that security checking or clearance for an individual outside the remit of the commission or any other person would make it difficult, I would accept that point but that point has not been made. In the case of both Bills a happy medium should be found.

I do not wish to make light of Deputy O'Brien's remark on perception versus reality but every time I hear perception being referenced as a basis on which to make fundamental change I recall comedian Dara Ó Briain talking about the perception of crime in relation to statistics which prove the opposite. I have a difficulty with lay persons determining that there was an undue influence in the political process in the appointment of the Judiciary. I welcome the prohibition of canvassing, which is well overdue. It is bizarre that canvassing can still take place either by candidates themselves, which I cannot prove but I am sure has happened over the decades, or others. I would certainly welcome that change.

We have spent a large amount of time going over the requirement for the Government Bill and it has caused a large amount of distraction in the operation of Government. There has been a perception that it has interfered with the workings of Cabinet, which is quite distressing and disappointing. I am disappointed that this Bill came to us in the manner in which it did and that is no disrespect to Deputy O'Callaghan, who may well have come to the Dáil recently with his intention to put it forward. If he had not, I might have perceived it to be a reaction to the position Deputy Ross took prior to entering Government.

Certain changes can be made to the judicial appointments process to make it more robust, transparent and immune to influence by putting in qualifiers. I do not have a difficulty with the commission being created but I do have a difficulty with the lay majority, for reasons I have outlined. I also have a difficulty with the qualifying criteria. If it is feasible, I would like the committee to be presented with a viewpoint on the constitutional elements that have been questioned, in particular with regard to the ranking mentioned in the opening statement of the Minister. If the Department cannot give its viewpoint on these, perhaps the committee can go off and seek a view itself. It does not necessarily sit well with normal procedures for vetting and the interview process.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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For Deputy Farrell's information, we stated we would have a comprehensive exchange on both Bills and we will go into private session to make a determination as to how we as a committee will proceed in relation to both. I expect we will produce a report which we will lay before the Houses.

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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I thank all Deputies for their contributions and some interesting relevant points have been made. I begin by absolutely rejecting the characterisation by Deputy O'Callaghan of the approach I have taken as being disrespectful of the Judiciary. Nothing could be further from the truth. I have huge respect for the Judiciary in this country and if he had listened to my opening remarks this would have been very clear. It is important we discuss all the issues and look in a balanced way at the pros and cons of the different approaches which I and the committee have taken. Using words like "farcical", "offensive" and "disrespectful" really are not appropriate. What we are discussing today is part of an international debate about the role of judiciary in society, not the question of its independence but how judicial selection should take place. A huge amount of work has been done and there has been huge change around the world, including in common law countries, on this issue. As I spent some time explaining in my presentation, I have tried to illustrate the challenges and complexities of this as well as the democratic demands. These are legitimate areas for discussion and are in no way disrespectful. It is very important that we do it here in committee and it is essential we get the views of members in moving toward an independent, accountable and diverse Judiciary. There are different ways of doing it and I do not believe there is a right and a wrong way. There are choices to be made and the committee is examining the range of those choices today.

The constitutional issue has been raised by a number of members and is central. I have very clear advice on this, both in respect of merit and whether the Government can be confined to the lists that are presented to it. Neither I as Minister for Justice nor the previous Minister in the previous Government ever went outside the lists that have been presented to us by JAAB. Whether or not the Government should be allowed to go outside and whether it is a constitutional question are also something on which I have got advice.

Deputy O'Brien raised a series of questions about the Constitution and this is very important. As Deputy Farrell said, the committee may well want to get its own advice in this matter. The Constitution has been central to the approach I have taken, which I will explain. Government retains, at all times, the executive discretion under Article 35 of the Constitution which supersedes any fetter imposed in legislation and could not be limited by legislation which otherwise could be contrary to Article 35. It would also breach the separation of powers in the Oireachtas in enacting such fettering legislation on the Government's executive function and the function of the President under Articles 35 and 13 of the Constitution. Provided that the executive function of the Government to advise the President of an appointment is respected and there is a choice for the Government in nominating persons as judges to the President, that is the situation. It is open to the Government to decide to follow the order of merit in nominating the first candidate out of the names put forward but it could also nominate any other names.

In order to fulfil the constitutional requirement, the Government must have discretion. By convention and practice, the Government usually follows the recommendation of the commission. However, it could not be expressly required to do so in legislation, as that would be to limit or fetter the constitutionally recognised executive function of the Government to nominate judges for appointment under Article 35. The point here is to avoid placing a limitation on the Government's executive obligations. I have clear advice on the discretion that the Government must maintain. Even if there were no order of merit, limiting the Government to those people on the list would equally be unacceptable constitutionally. By the convention and practice of this Government and the previous one, the Cabinet has never gone outside the JAAB procedure and list. I imagine we will continue discussing this issue, but I wanted to be clear on the advice that has framed my approach.

The role of the Judiciary and whether there should be a lay or judicial majority are central questions to the discussion on Deputy O'Callaghan's Bill and the Government's approach. I will cite a number of attitudes and approaches to the matter that may inform the debate. Deputy Daly raised important questions about the role of the lay person versus or in conjunction with that of the Judiciary. In an article, Professor Alan Paterson quoted Sir Tom Legg, who said: "Who our judges are, and how they are selected, is a public matter and fully justifies public interest and debate." This is a basic point. Professor Paterson wrote:

As such, any desire to ensure that judicial appointments are 'wholly independent of external influence' is flawed: there is an important constitutional need to link in some way the (increased) power of the judiciary to those on whose behalf it is held.

That is a good way of describing what is central to the debate. Professor Paterson also wrote: "The democratic legitimacy of a branch of government is also directly linked to the extent to which it represents the society it serves." These are approaches to having lay people on the board, even as a majority.

There is an interesting point about diversity, fairness and the various ways in which these have been viewed down the years and it is important to put the proposed approach in context. Historically and for a variety of reasons, it was men who were primarily selected to be members of the Judiciary. We now have a greater gender balance than ever before, so that diversity is being reflected, even if the height reached in some courts is just 30% female. Baroness Brenda Hale, a Supreme Court Justice in the UK, stated:

A woman litigant should be able to go into court and see more than one person who shares at least some of her experience. I should not stick out like a bad tooth, as I do at present.

Interestingly, she was the only female member of the UK's Supreme Court at the time.

On the questions of diversity and who is suitable, we have historically discussed merit and how it is defined. Merit is often in the eye of the beholder. This is a good reason to consider involving lay people. At one time in the UK, merit included coming from the same party as the Lord Chancellor. At a later point, it was deemed to be a good thing to have had previous political experience before appointment as a judge in the House of Lords. More recently, it has been and, in large part, still is "regarded as coterminus with having been a junior and a QC at the bar for 30 years". This is not meant to show any disrespect, only to make the point about our assumptions concerning qualifications and merit. We are at a point when this is worthy of discussion.

It is not insulting to the Judiciary to have a discussion about a lay majority. It is not intended as any sort of disrespect. In terms of democratic accountability in terms of the board's composition, these are the types of point that we need to open our minds to as opposed to resisting change and saying that the situation should stay the same and there should be a judicial majority.

My understanding is that there has rarely been a vote on this question. I imagine that this will be about putting the processes in place. Deputy Daly made a point about the committee and the work that we are suggesting a sub-committee should do. It is a matter of practicality that this matter move in that direction.

There are many points to address and I will try to go through them all. I am open to discussion about the various issues.

On the selection of lay people, Deputy O'Callaghan was insulting towards the Public Appointments Service, PAS. There is no indication from other jurisdictions where lay people have moved into the system that they are carrying particular agendas. Why should it be different in this country? If we lay out the criteria for the types of lay people who should be on the board, we can trust the PAS to select people of the highest calibre, if that is the route we take instead of using nominating bodies. We trust it to undertake other important jobs, so I do not see why it cannot be trusted to do this.

The Deputy made a point about the level of resources that we have suggested the body should have. The Bar Council made the very same point in its submission yesterday and questioned whether resources were needed. If one wants to establish a professional body, give it the kind of work that is necessary and allow it to develop the expertise relevant to the important issue of judicial selection, one should support it in doing so. The Dublin declaration made this point. In their analysis of the current operation of the appointments board, the JAAB and the Judicial Appointments Review Committee, JARC, have stated that they do not have enough resources to do the type of job that they believe they should do. I make these points in support of our approach. This needs to be a professional body with professional standards that employs a chief executive to oversee it. The structure is relatively modest. We are not talking about glossy reports, only limited access to consultant expertise so that it can be a fully professionalised selection process, as we have outlined in the Bill.

A number of points have been made about the role of the Attorney General. The Attorney General is in a unique position to understand the qualities required for a judicial appointment and would be familiar with the experience of practising lawyers. The Attorney General is in a different position, being slightly outside the system, but is a legal expert and has extensive day-to-day knowledge of the abilities of practising lawyers, in particular barristers. The Attorney General is the Government's legal adviser, not a member of it. I would support the Attorney General being kept on the commission. It is a suitable approach to take.

Deputies Farrell and Daly raised questions about the A and B lists and qualities. Some people like the more detailed approach taken by Deputy O'Callaghan to the qualities that people need to be judges. That is a matter for discussion and we can devise an approach that is satisfactory for the committee.

We have some work to do and we certainly will address the matter.

Deputy Daly made a point about the Bar Council and Law Society applying merit to legal members. It could be discussed with both organisations how they would propose to apply a merit criteria to the people they nominate. I am quite sure that they would do that anyway but it is something we can look at in the final drafting. Again, they bring a different and important perspective and I was keen that should be reflected in the composition of the board. The Deputy's idea is useful. We can consider the transparency of that aspect of the membership of the commission.

In terms of political engagement, I would make the point that in a professional selection process it is irrelevant whether a person is politically motivated. It will not help them. I think that we all agree that political involvement, membership or experience in politics should not exclude people. I do not think we want to arrive at a situation where people who have been involved democratically in politics are excluded. Clearly, everybody should go through a professional selection process.

The point has been made that the experts in this area, those who are already sitting judges, are the people who should appoint their successors and their colleagues. It has also been pointed out that they should have the majority in doing so because they know the practice first hand as they do the work. I will make a number of points on the approach we are taking. I refer to the argument made about cardiologists appointing cardiologists and whether the Taoiseach chairs a committee or somebody does so when he or she is not there. First, judges will be there and their expertise will be fundamental and critical to the decision. I have made this point absolutely clear. The lay people will provide a range of additional voices, expertise and experience. Being a judge is about having a knowledge of the law but it is also about other issues. The whole point about what qualities we need in a judge is that these will be elaborated by the commission in its selection processes based on merit. That is what happens in other countries.

In terms of quite what the role of the chief justice should be, an argument has been made elsewhere in other jurisdictions. Let us make the point that chief justices in neighbouring countries have no difficulty with being part of a commission and not being the chair. One can make the argument, but I am not quite sure which words to use, to ensure having a chief justice in that position gives greater opportunity for him or her to make an input and still play a very critical role while not chairing. One can make the assumption that the lay members will respect the judicial experience members of the Judiciary bring to the table.

In terms of lay involvement, from a democratic accountability point of view we want to see more of a critical mass of lay people involved. I respect the fact that Deputy O'Callaghan has called for more lay people on the board. The points of discussion are on who should act as chair and whether there should be a majority.

I do not wish to criticise the nominating bodies listed by Deputy O'Callaghan. One must decide which of the many bodies should be regarded as having relevant interests. We have already heard from a number of members of the committee that there is a wide range of bodies that one could consider to be nominating bodies. Having examined the matter, I felt that the approach that I have outlined through the Public Appointments Service, where we could identify the skills that were needed in a very clear way, was a better approach. I note that there has been disagreement on the committee on this aspect.

I acknowledge Deputy O'Callaghan's acceptance of the importance of the approach that I have taken in terms of making service on the District Court bench as qualifying Judges directly for promotion to the High Court. I agree with him that the measure is overdue. That concludes the main points I wanted to make.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank the Tánaiste for her response.

Photo of Jim O'CallaghanJim O'Callaghan (Dublin Bay South, Fianna Fail)
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I want to respond to the points made. In dealing with the Tánaiste's comments, I will not repeat points that I made earlier.

I will respond to the three points made by Deputy Jonathan O'Brien. His first point was about having diversity in the Tánaiste's general scheme of the Bill. Section 15(4)(a) of my Bill states that the Commission must take into account "promoting gender and cultural diversity within the judiciary.". I included the provision because it is a very important progression that needs to be made.

Second, Deputy O'Brien claimed there was a judicial majority on my commission. That is incorrect. Only five of the 12 people would be judges in my commission.

Third, the Deputy mentioned a constitutional issue. I agree with the Tánaiste in respect of this matter. I do not think it is feasible to restrict the decision-making process of the Government to the names that are provided by the recommending body. Constitutionally, the Government must be given the ability to appoint whoever it wants.

Deputy Clare Daly made a number of good points. The first point she mentioned, and this is what I tried to emphasise at the outset, was that Judges work in the best interests of society. In my legislation I have sought to improve the process for nominating Judges to improve society, not to improve the lives of Judges, and not to make it easier for lawyers, lay people or whatever. The important thing, and everyone here is motivated by this, is to ensure that the public interest is best served so that the public get the most suitably qualified and best candidates to fulfil the role of Judiciary under the Constitution.

One has a recommending body and one has the final body at Cabinet. The Deputy is correct in terms of what she said about the presence of the Attorney General on both bodies leading to confusion and the office holding too much influence on the recommending body.

The Deputy also mentioned the issue about a lay majority, as did others. We need to get away from using the term "lay people". It suits the agenda of some people to present the view that lay people are good and anyone opposed to having lay people is trying to promote their own cosy or cushy cartel. What we want on the commission are people who are suitable and well qualified to identify who will be the best candidates. I do not mind what they are called. Using the terminology of "lay person" does not serve any great policy purpose.

The Deputy mentioned that a gender balance is needed. My Bill includes the provision at section 15(4).

The Deputy welcomed the fact that there was a requirement on the committee, set up under the Tánaiste's scheme, for it to set out a list, code of excellence or a code of what will make a good judge in terms of the appointment procedure. Section 6(4) of my Bill refers to an obligation on the commission to publish "selection competencies" within a short period after the commission has been constituted.

Deputy Farrell made a number of points on a lay majority. I shall repeat the point that I made previously about the matter. He questioned my interest in the matter but not in a derogatory manner. He wondered whether Fianna Fáil only made the proposal now to stymie the Government's proposal. That is not correct because we tabled legislation during the life of the previous Dáil. Like other members, I am interested in the area.

I will not reply to each of the Tánaiste's comments as if this debate was a table tennis match. Instead, I will make a number of points. I did not accuse her, personally, of being disrespectful to the Judiciary. I did accuse the Government of being disrespectful to the Judiciary. It is instructive to note that over an hour ago I asked her to identify one committee on which the Taoiseach served but which he did not chair.

I have not heard an answer to that because I do not think there is one. There are reasons for that. It is because of the respect that people have, and should have, for the office of the Taoiseach.

Much ground has been covered and it has been a very useful engagement. I am not proprietorial or emotionally committed to my legislation. We need to get the best scheme available. I would be concerned however, that what is really motivating the Government side of the debate is not in fact the desire to get the best scheme in place, but a desire on the part of Government to abide by a rather foolish commitment it made in the programme for Government.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Deputy O'Callaghan. I note that three of the monitors are covering our engagement here this morning, but one is showing proceedings which cast a long shadow over this debate.

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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I reject what Deputy O'Callaghan has said in regard to the Government approach to the Judiciary. I share the same goal as him, but to arrive at the best system I have looked at what is happening internationally and I have laid these on the table. There is a legitimate approach in the scheme that is before us. There are some key questions that need ongoing consideration but one cannot simply assume that a lay chair or lay majority suggests disrespect from the Government in regard to the Judiciary. I have put this is an international context where all of these changes are being considered.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank the Minister. We will not go back over the debate. As Deputy O'Callaghan has said, there will be no table tennis today. In the absence of any other members showing I will bring this session to a conclusion.

I thank the Minister and her colleagues for their attendance and engagement with the committee. I thank Deputy O'Callaghan for his equal participation and elucidation on his own Bill, which was very informative and helpful to the members. As I indicated to the Minister earlier, we will be addressing the matter substantively when we go into private session and will determine how we will then proceed. It is our intention to produce a report on this and we will inform the Minister in due course.

I now suspend the meeting for one minute and we will then resume in private session to deal with this and other matters. Go raibh maith agaibh.

The joint committee went into private session at 11.16 a.m. and adjourned at 12 noon until 9 a.m. on Wednesday, 1 February 2017.