Alex White (Dublin South, Labour) | Oireachtas source

The Minister for Justice and Equality, Deputy Frances Fitzgerald, has asked me to convey to the House her regret at not being in attendance for this debate. She is in Luxembourg today at a meeting of justice and home affairs Ministers, a matter of considerable importance in the context of her work as Minister. The issue of reform of the judicial appointments process is one in which she has very considerable interest and is the focus of intensive work at present.

On behalf of the Minister, I thank Deputy Pádraig Mac Lochlainn for preparing and tabling the Reform of Judicial Appointments Procedures Bill 2013 and thereby providing an opportunity to debate this important issue. The introduction of the Bill comes as a significant review of the entire spectrum of issues around the topic of judicial appointments is under way in the Minister's Department, a review which has already been well signalled to the House. The legislative context for judicial appointments in Ireland is a highly complex one, and any appraisal of that system encompasses an extremely wide range of issues for consideration. For example, the role of the Government and the Judiciary itself and of others in the process, the relevant practice and eligibility criteria and international benchmarks are all worth reflecting on in making an assessment of the current arrangements and signposting changes that should be considered.

It was with this in mind that the Minister's predecessor embarked on a major review of the judicial appointments process and initiated a consultation process in December last as a first step. The Minister, Deputy Fitzgerald, is most anxious, as a key priority in her new role, to see this worthwhile process through. It is her view that it is vital, if reforms applicable to this area are to be made, that they derive from a considered consultative process, public debate and debates in this House. Pending the consideration of the conclusions of the review by the Government, I do not propose to express a view on behalf of the Minister as to the approach that should be adopted with regard to judicial appointments. It is a very important and multifaceted issue that requires detailed examination. Moreover, I am very conscious that the Judiciary and the courts, as the key organs of the justice system, are constitutionally independent in their operation. That is a very basic principle within which we must continue to work.

I will return again to this review process and to the detail of Deputy Mac Lochlainn's Bill. Before doing so, however, it is useful to summarise the key provisions of the Courts Acts that govern the appointment of judges. Under the Constitution, judges are appointed by the President on the advice of the Government. The current process for the appointment of judges is set out in the Courts and Court Officers Act 1995, sections 12 to 17, which established the Judicial Appointments Advisory Board. In particular, section 16 provides that a person who wishes to be considered for appointment to judicial office shall so inform the board in writing and shall provide the board with such information as it may require to enable it to consider the suitability of that person for judicial office, including information relating to education, professional qualifications, experience and character.

The board must recommend a minimum of seven candidates for each vacancy and submit to the Minister the name of each person who has applied to the board. Where there are fewer than seven applicants or if the board is unable to recommend seven, it must forward all names to the Minister and recommend such of those as it considers suitable for appointment. The Government, in advising the President to make an appointment, must first consider names recommended by the advisory board. The Act also requires that a notice of appointment to judicial office shall be published in Iris Oifigiúil, with a statement, where applicable, that the appointment was recommended to the Minister by the board. Certain positions are excluded from the board's remit, such as the appointment of the president of a court or the Chief Justice, or the elevation of a serving judge. Therefore, it is the Judicial Appointments Advisory Board that identifies persons and informs the Government of their suitability for appointment to judicial office. The establishment of this arrangement dates back almost 20 years, and that passage of time alone would suggest that a review of operations and the process is timely.

It is worthwhile synopsising the process today as the reality is that all the fundamental arrangements that underpin the system have been highlighted in one way or another across the contributions received as part of the public consultation process. Much of the comment is generated around the issue of the Judicial Appointments Advisory Board itself, including its composition. The board is composed of the Chief Justice, who is chairperson, the presidents of the High, Circuit and District courts, the Attorney General, a Bar Council nominee, a Law Society nominee and up to three lay members appointed by the Minister. The 1995 Act prescribed that these three persons shall be engaged in or have knowledge or experience of commerce, finance, administration or as consumers of services provided by the courts, as considered appropriate by the Minister. Appointments of the nominees of the legal professional bodies and lay persons are for a period of three years and such persons may be reappointed.

Before introducing any reforms in this area, the then Minister was anxious to encourage public debate on statutory changes that should be considered in the public interest in regard to the appointment of members of the Judiciary. In December 2013, the Minister's predecessor initiated a public consultation process. This was to involve not only members of the Judiciary and the legal profession generally but also to engage the broader public and interested stakeholders who benefit daily in innumerable ways from the protection of an independent Judiciary. Submissions were invited on the judicial appointments process including in respect of such matters as: eligibility for appointment; the need to ensure and protect the principle of judicial independence; promoting equality and diversity; and the role of the Judicial Appointments Advisory Board, its membership and its procedures.

The Department received 27 submissions earlier this year, running to more 250 pages. I take this opportunity, on behalf of the Minister, to acknowledge and thank the many contributors, including the Judiciary, the Bar Council, the Law Society, the Free Legal Advices Centres, the Irish Council for Civil Liberties, individual constitutional officeholders, many other individuals and groups and public representatives. I do not think Deputy Mac Lochlainn will mind me noting his input into that process on behalf of his party in the form of the Bill before the House which is just one of very many constructive and helpful contributions received.

A report on the outcome of consultations signalling key emerging issues and options for legislative reform is at an advanced stage of preparation in the Minister's Department. It is inevitable that this report will become the focus of a further consultative process with all relevant stakeholders. It can be anticipated that this process will take place in the second half of this year and with a resulting outline of legislative proposals towards the end of 2014. This is a challenging timeframe for progressing significant reform that is likely to encompass several fundamental aspects of the judicial appointments process.

I turn now to the Deputy's Bill, which as mentioned is one of many very useful and thought-provoking submissions received as part of the review process. Key elements of the Deputy's Bill seek to reform the judicial appointments process by setting out criteria for nomination; linking the appointment process into equality law; changing the composition and the chair of the Judicial Appointments Advisory Board; limiting to three the number of persons to be recommended by the board for a judicial vacancy in given circumstances; and including the promotion of serving judges within the remit of the board.

While there is no doubt that these themes feature quite centrally in the submissions received on the current appointment arrangements and that the Deputy's proposals give food for thought, I point out that the Bill does not address many relevant issues emerging from the consultations process. For example, the need for a comprehensive assessment of all criteria for appointment, the need for a complete reappraisal of the structure and functioning of the Judicial Appointments Advisory Board and the need to consider the eligibility of employed legal professionals, academic lawyers and others. Other questions arise, and will be responded to under the review, which the Deputy's Bill does not adequately address. The following are just a flavour of them. Should the selection process be much more multi-layered, including detailed reviews of applications, preliminary testing, panel interview, professional references and peer review? The Bill makes no such provision. Should a thorough merit-based model be developed, publicised and used by the Judicial Appointments Advisory Board? Even more fundamentally, should the advisory board be completely reconstituted as an independent statutory and expert body? Should District Court judges be eligible for appointment to the High and Supreme Court, on a similar basis as are Circuit Court judges currently? The Bill does not address that issue.

Are the existing qualifying practice requirements for barristers and solicitors adequate or should they be varied upwards or onwards? The Bill is silent on this issue. Should promotion - what we really mean is the elevation of judges - of judges from one court to another or, indeed, as Presidents of the Courts or Chief Justice come within the remit of the appointments body, which they do not currently? The Deputy's Bill in section 9 provides that so-called promotions should come under the advisory remit of the board but any such provisions, if proceeded with, would require considerable precision as to the specific arrangements.

To what extent should information about given appointments be made public? The Deputy's Bill in section 8 would require the board to make public the names being recommended for appointment and why they are being recommended while section 10 requires that the Government would publish a report within 14 days in advance of appointment as to why a person is to be appointed. The publication arrangements to do with appointments are subject to review and while the Deputy's suggestion will be looked at, it is not entirely clear to me why such information would be put into the public domain in advance of appointment.

Should the advisory board submit a minimum, maximum or fixed number of names for recommendation to Government and what should that number be and should such recommendations be ranked in order of merit? This matter comes up for consideration in almost every submission, and this is perhaps the central issue and one that needs careful weighing in the context of a range of views obtained.

In posing these questions I am not suggesting the answers to them but I can say that on all these issues the consultations process has revealed a remarkable range of views with strong support shown for often opposing takes on the best way forward on many of these emerging issues. I have no doubt too that there will be many ready-made answers from different sources to the types of questions that arise but the diversity of views coming forward, and it must be said in some cases the convergence of such views, clearly demonstrates the need for a comprehensive analysis of all such matters.

A central tenet of the review is the need to ensure and protect the principle of judicial independence as enshrined in Article 35.2 of the Constitution. Since 1922 we have had a robust and independent Judiciary appointed under the current constitutional arrangements. Ireland was ranked second in the 2014 EU justice scoreboard for perceived judicial independence.

I have mentioned that the current system is almost 20 years in existence and, in many respects, while innovative at the time, it is in some respects very much of its time. There are doubtlessly reforms and improvements that can be made to render the system more transparent and accountable while also ensuring that the independence of our Judiciary is rigorously protected and the Judiciary continues to be respected by the Irish people and internationally.

While the decision as to who should be nominated to the President for appointment to judicial office rests with the Government, it has been the practice of this Government to nominate to the President for appointment only persons who have been recommended as suitable for appointment to judicial office by the board. The only exception to this is where existing members of the Judiciary have been elevated to a higher court - a matter currently excluded from the remit of the Judicial Appointments Advisory Board, as I have explained.

It is important to state that Government decisions on judicial appointments take only competence and merit into consideration. The system we have is a considerable defence against any notion of political control or patronage. However, if that can be strengthened further through the process of review, then that should be done.

In respect to certain specific provisions in the Deputy's Bill, key provisions include the appointment of the chair of the Irish Human Rights Commission to be the chairperson of the Judicial Appointments Advisory Board, and a rebalancing of the advisory board to allow for more lay members than Judiciary members. While such an arrangement may well be for consideration in the context of the review, the Minister is not prepared to accept that this will be an inevitable conclusion or outcome of the review and wishes all of the complex arguments around this point to be very carefully analysed before any aspect of the composition of the advisory board is determined.

The Bill appears to make no new provision for the filling of a single judicial vacancy which may well be a drafting anomaly in it. Section 8 inserts a new subsection (5) in section 16 of the Courts and Court Officers Act 1995. This would have the effect of allowing the advisory board to recommend three names for appointment where there is more than one vacancy - for example, six names per two vacancies - but would leave the existing provision whereby at least seven names would be furnished in respect of a single vacancy and that appears to be inconsistent with the aims of the Bill. I would be interested to hear the Deputy's thinking on this.

Other provisions in Deputy Mac Lochlainn's Bill raise questions, appear unclear or require significant analysis of implications and I can assure the Deputy and the House that these will be addressed in the context of the review of judicial appointments. To take one example, section 4 seeks to go beyond the existing nine equality grounds in the equality legislation with inherent duplication and it would appear inadvisable to do so either in equality legislation or in other legislation without careful thought.

The Government has decided to oppose the Deputy's Bill as it is currently conducting a wide-ranging review of all matters concerned with judicial appointments that will allow the necessary full assessment of all relevant matters in respect of the issue and the Government will bring forward legislation to reflect the outcome of the consultations process as a priority.

Many of the issues that arise for consideration in that context are not addressed in the Bill, as I have set out. In addition, as I have mentioned, some of the provisions are somewhat unclear in terms of their effect and open to question as to implementation. That said, I think it is important to say that the new Minister will have the opportunity to fully consider the Deputy's Bill as part of the review process along with a significant volume of other contributions and I would take the opportunity today of thanking the Deputy again for his very constructive input to that process and to the formulation of policy in this area. I very much look forward to today's debate and the deliberations and insights of Deputies on this issue.

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