Mr. Liam Herrick:

On the first question asked by the Senator, it is clear that the proposed approach retains an absolute discretion for the Government to make appointments to the bench without any reference to the Judicial Appointments Commission nominations. It is for the committee and the Oireachtas, ultimately, to decide whether that is constitutionally mandated or not. There is nothing in our submission that is in any way critical of the quality of the existing Judiciary; far from it. It is absolutely the case that we have had the benefit in our constitutional history of a strong, independent Judiciary that has acted and exercised its functions with great honour. That does not mean we should be complacent, however. We need to be mindful of taking this opportunity to have the most robust and strongest process possible to anticipate all the potential changes that might happen in the future. In that regard, I think there is nothing inconsistent in saying we have a strong, independent Judiciary now but we can have stronger processes in the future.

Deputy Martin Kenny raised the role of the Attorney General in his contribution and that touches on this matter. There are clear concerns about the Attorney General having any role in the process. To a large extent, the approach that is proposed by the Government addresses many of those concerns in the general appointment process by the Attorney General having a non-voting role. However, we are presented with a significant difficulty when we have a separate senior appointment process for the Chief Justice and the presidents of the superior courts. In those cases, the Attorney General not only retains a role but has a significant voting role as one of three. That is probably the greatest weakness in the proposed Bill as it is currently presented.

With regard to reasons for deviation, Senator Ward made good points about the requirement for confidentiality. It would be interesting to explore whether it is possible to balance what we are trying to achieve in terms of accountability with the confidentiality of applicants. There are two different ways in which the Government may deviate from what is recommended by the commission. One is to deviate from it in terms of the ranking of candidates which we propose. A second method of deviation is to circumvent the proposed list entirely. It is essential that there is some requirement on the Government to explain itself when it takes the latter course and possibly to work out whether it can achieve the ranking of candidates while balancing principles of confidentiality for unsuccessful candidates.

The Senator also asked about judicial training and the specific skills that are required of judges. We must look at the Judicial Council Act and the proposed judicial appointments commission Bill in tandem. The requirements in place under the Judicial Council Act in terms of ongoing training of the Judiciary will be a great resource to strengthen our Judiciary and allowing it to keep up with contemporary developments. I do not think that objective will be achieved through the Judicial Appointment Commission Bill alone, it must be considered in tandem with the Judicial Council Act. We are supportive of what is in the Judicial Council Act.