Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I very much welcome the Leas-Cheann Comhairle's message and I am sure it is one that he and any other Members who take the Chair during the course of the debate will be mindful of. I hope the Leas-Cheann Comhairle will not have to remind Members of this House of the issues to which he adverted and I thank him for same.

As the House we be aware, it has been a long journey to this point. My predecessor, the Tánaiste, Deputy Frances Fitzgerald, undertook an enormous amount of painstaking work on the complex matters involved in this legislation while a process of public consultation was conducted in 2014 by another of my predecessors as Minister for Justice and Equality, former Deputy Alan Shatter. The impartial administration of justice according to law is vital in ensuring that we have a strong and stable modern democracy in this State. The critical and often difficult task that the Judiciary performs at every level of the courts system is central to maintaining this and a key concern is to have a system of judicial appointments that supports public confidence in the administration of justice in our courts.

The Bill provides for a number of very substantial changes which I believe represent a defining reform, providing for a modern, comprehensive and fit for purpose system dealing with judicial appointments in this State. For the first time we will have a comprehensive statute providing exclusively for the process of judicial appointments in a transparent way. The Bill represents a unique and modernising approach which has been devised to deal with this complex area of administration so that it is best suited to our needs in the 21st century. In this Bill I am bringing forward immediate and innovative changes to the judicial appointments structure that has been operating for the past 20 years or so. The Bill also sets up a dynamic mechanism to develop further and embed needed improvements and reforms as the justice and social and economic environments evolve into the future.

Over three years ago, the then Minister for Justice and Equality, Deputy Alan Shatter, set about bringing our system of judicial appointments in line with international best practice. A decision was taken to engage in public consultations and to get the views of stakeholders as to what the best approach might be to devising an improved system. Certain themes were flagged going into that process including the need to continue to protect the independence of the Judiciary; the role of the Judicial Appointments Advisory Board, JAAB; and eligibility issues and the diversity of our Judiciary. Much of the content of the Bill reflects the outcome of that process and the research and policy analysis which followed it in the Department of Justice and Equality.

While there are deficiencies in some aspects of the current system, it could not be said to have affected the quality, integrity or diligence of the Judiciary, which has contributed greatly to the success of our modern democracy or, most of all, its true independence. Ireland regularly features very highly on international measures of judicial independence. Judges themselves, through their professionalism and service, have ensured that our Judiciary is held in very high esteem. I want the debate in these Houses over the next few weeks to be appropriately respectful to the judicial branch of Government.

In a moment I will come to the key immediate reforms that I believe will bring real change and a better and more open and transparent process under the terms of this Bill but first I want to underline the significance of having a commission. Working through a procedures committee established under section 19 of the Bill, the commission will be tasked with a remit to determine quickly in a consultative process new procedures for judicial selection and the skills and attributes required for the job. These procedures will reflect best practice professional selection methods and processes. This will not be a one-off task, however. Under Part 8, the committee will have the ongoing role of reviewing the effectiveness of the selection system as well as the effectiveness of the functions assigned to the commission under this Bill. Real attention to system review and process improvement is at the heart of this Bill, having regard to the best practice judicial appointment model that can be devised and improved over time. That will be an ongoing process and the Bill requires the commission to report to the Minister in this matter.

The current arrangements for judicial appointments embodied in the Courts and Court Officers Act 1995, as amended, represented an important advance by introducing a new independent element to the judicial appointments process. Up to that time, of course, there was effectively nothing in place to guide the function of appointment other than the relevant terms of the Constitution. Article 35.1 of the Constitution provides that judges are appointed by the President and under Article 13.9 such power is exercisable and performable only on the advice of the Government. That is not changing, obviously, but it is a matter for the Oireachtas to legislate for the systems and procedures that are needed to support decision making under this constitutional prerogative.

It was an important step in 1995 to bring lay persons into the role of identifying persons suitable for appointment to judicial office and to bring in a more consultative and transparent approach to the process of appointing judges. While I am conscious that I am speaking with the benefit of over 20 years' hindsight, reflection on the experience can only lead one to conclude that the arrangements were limited in a number of respects. The Bill before the House brings the system to a new level of openness and effectiveness. The limitation of the scope of the JAAB to first-time judicial appointments only, for example, meant in effect that the new procedures were concerned with just one dimension of the judicial appointment process. They did not address the elevation of serving judges from one court to another which is an option that is exercised quite regularly when it comes to appointing persons to our superior courts. When a serving judge is the subject of judicial appointment, the JAAB has no role, although it may have recommended practising lawyers for the same position. Where it has a role, that is in recommending persons other than serving judges for appointment, it must recommend at least seven persons, if it can, to the Minister. If the vacancy in question is as president of any court or as Chief Justice, it has no role whatsoever. It is also the case that no dedicated resource was assigned in the legislation to support the JAAB. Over the years, the Courts Service has provided the necessary financial, technical and administrative support to the board and, in passing, I want to acknowledge this invaluable contribution to the process.

It is not surprising that these limitations were the overall focus of what was effectively a critique of the current system in submissions made by stakeholders to the pubic consultation process. Addressing these identified limitations and broadening the vision of what the commission can be is really what this Bill is all about.

However, it is perhaps not overly instructive to emphasise limitations in the current statutory arrangements. After all, it is well over 20 years since that legislation was conceived. It was the first time the Government function in the matter was supplemented by an independent element in the process, and it was the first opening of the process to any scrutiny. At the time, it was also an important move forward.

The justice system now operates in a modem administrative environment. More transparent and participative approaches are apparent in public policy decision-making models both here and on the international stage, and so we will move to a radically more open, transparent and independent system under the Bill. Instead of the Government dealing with multiple recommendations for a particular judicial post, as can happen now, combined with having before it the names of potentially any number of serving judges, it will now, under section 42, have only three names before it, all coming through the process of the new commission. This is a significant change, which is consistent with best international practice.

The Government, under the Constitution, will continue to retain the discretion to appoint a person to judicial office but will, as section 48 provides and as the 1995 Act provided, have first to consider the recommendations made to it. The names coming from the new commission will, in turn, have come through professional and carefully designed selection processes which will be transparent at all times. It is worth noting that under this Bill, it is the qualifications, experience and character, not only of legal professionals and, in a new provision, legal academics, but also of judges themselves who wish to serve in a higher judicial office that will be the subject of assessment.

The three most senior judicial posts, namely, those of Chief Justice, President of the Court of Appeal and President of the High Court, will, under section 46, be subject to a variation of the general process. In respect of these three judicial positions only, the commission will forward the names of persons who have expressed an interest to a new senior judicial appointments advisory committee comprising the Chief Justice, the lay chairperson of the new commission and the Attorney General, and this committee will recommend three names to the Government. The scheme had provided that the Minister would also be a member of the committee. However, following consultation and reflection on this point, membership of the committee will now be as provided under the Bill.

The Bill provides the new commission with a very substantial and definitive function in respect of the selection of our Judiciary into the future. Reflecting today's governance and participation models of public policy decision-making, the new commission will have strong lay representation. This legislation Is largely about getting the balance right between different contributions and interests. There has been much discourse, and I have no doubt there will be much more in the course of this debate, about the numbers of judges involved in the selection process and whether judges should form a majority in any body set up for this purpose. It is worth repeating a point made by the Tánaiste when the scheme preceding this Bill was undergoing pre-legislative scrutiny In January. She said:

Judicial selection is not part of the judicial function. The judicial function is to apply the law, interpret the Constitution and defend it.

Section 12 provides for a new commission of 13 members. This is an increase of two on the current advisory board numbers and an increase of two in the membership, as provided for in the general scheme of the Bill, that is, the model discussed at pre-legislative scrutiny stage in committee in January last. I want to be clear about the status of the Government programme commitment to reduce commission numbers. It has not proven possible to do this while at the same time legislating for the most substantive related commitments. It would not be operationally feasible to reduce numbers while providing for a lay majority and lay chairperson and, at the same time, retaining the Attorney General and legal professionals who are indispensable, as well as having the most appropriate level of senior judicial involvement in the structure.

On the issue of judicial input to selection and recommendation, this is perhaps the more substantive variation in the Bill from the terms of the general scheme. Section 12 provides that the commission will have 13 members, consisting of a lay chair, the three most senior judicial officeholders, the Attorney General, one representative each of the solicitor and barrister professions and six ordinary lay members. I am persuaded that the Chief Justice and presidents of the Court of Appeal and High Court should be full commission members, directly involved in all appointments to the courts over which they preside and, in the case of the Chief Justice, to all courts. These most senior judicial officeholders will also be full members of the commission for the purposes of discharging other critical functions under the Bill.

I would be the very first to acknowledge that the Judiciary has very critical and indeed determinative expertise in terms of understanding and advising on the legal, courtroom and analytical aspects of what it takes to be a successful judge and that this will, in turn, be complemented by the specific additional legal sector qualities which the Attorney General and representatives of the legal profession will bring to the table. Clearly, one cannot be appointed as a judge unless one has the necessary foundation, legal and related knowledge and skills to do the job with excellence. However, the non-legal people, carefully and professionally selected by the Public Appointments Service, who will now be part of these selection processes as a very substantial cohort, will also bring a range of necessary additional life, user and citizen perspective, governance and selection expertise into the mix. I am sure that, in the new arrangements, the participating judges, those with non-judicial legal experience and those with other areas of expertise and experience will work closely and respectfully together.

Staying on the subject of judicial representation in the appointments process, Deputies will be aware that there is some concern among senior members of the Judiciary about the implementation of the programme for Government commitments to appointing a lay chairperson to the commission and having a majority of lay members. The Government has consulted in depth the representatives of the Judicial Appointments Review Committee, the senior Judiciary group tasked with contributing to the change process. Substantial and significant elements of the legislation are consistent with the informed views of the Judiciary. For example, the move to only three recommendations, the inclusion of all appointments in the new process, including serving judges, the dedicated resources provided, the provision for selection and recommendation to be based on merit, new accountability arrangements, a prohibition on canvassing and other important elements of the Bill reflect key tenets of the Judiciary's position on these reforms.

Deputies will no doubt be aware that judges are opposed to having a majority of lay persons on the commission and a lay chairperson presiding over a commission of which the Chief Justice is a member. A particular concern expressed in that regard is that all five court presidents, including the Chief Justice, should be directly involved in the selection and recommendation of persons for appointment, as is the case in the Judicial Appointments Advisory Board, JAAB, process. On careful consideration, having listened to the views of the Judiciary on the matter and reflecting on the point in the context of the pre-legislative scrutiny debate, it appears to be desirable to meet this particular point. Rather than a consultation-type arrangement with, for example, the President of the District Court, as the ex officio arrangement under the general scheme would have provided, a direct decision-making role for each president should be retained as in the Judicial Appointments Advisory Board process. Sections 11 and 13 provide that the commission shall act in the form of a relevant 11 person committee, one for each of the five courts.

In the modern environment of administration, in a new body and, moreover, one that will exercise much more decisive and definitive functions than its JAAB predecessor, an adequate and cost-effective professional management structure is essential. The new office to support the commission and the new position of director are central parts of this, but there is also a need to lead the commission in the professional administrative and recruitment space. The carefully constructed qualifying criteria under section 15 that underpin the appointment of the chairperson to be recruited by the Public Appointments Service will require the person to have board management and corporate governance expertise, among other things.

In framing the various provisions of the Bill, the Tánaiste was particularly aware of the need to ensure our new system of appointments was as open and transparent as it can be and underpinned by a meaningful set of accountability arrangements. Some examples from the Bill illustrate this. The new commission chairperson will be accountable to an Oireachtas committee. Under section 24, the director will be required to forward reports to the Committee of Public Accounts. The commission will be required to report annually to the Minister. The House will have a role in respect of other openness and accountability matters. Section 64 prohibits canvassing by an applicant or anyone on an applicant's behalf and provides for an offence in the matter.

I have covered the key immediate steps to be introduced under the Bill. I also want consideration to be given to Part 8. This Part is about a progressive approach to reform, allowing for further development of the selection procedures, informed with reference to best international practice and other considerations set out in the Bill. These functions focus on the work of the procedures committee which, under section 19, will be composed of seven members of the commission with a lay majority and lay chairperson.

Section 55 provides for certain essential requirements in the area of judicial competency that must be reflected in the statement. These include an ability to conduct proceedings in a manner that ensures confidence by the public in the administration of justice and the practical considerations that affect the experience of lay persons of the courts system. Another key task of the procedures committee is to review the operation of the published statement.

I have pointed to a number of aspects of the Bill that represent some development of the measures outlined in the general scheme. I have retained as objectives in the Bill that the membership of the Judiciary should comprise equal numbers of men and women and, to the extent feasible and practicable, reflect the diversity within the population as a whole. These matters will, subject to the overriding merit principle, be considered at selection and appointment stage. Deputies will see from section 55 that these matters will also be addressed by the procedures committee.

The last substantive matter I want to mention is the opening up of the eligibility arrangements for appointment to the High Court to District Court judges and legal academics. These matters are addressed in section 35.

I will finish on two points. First, there is a far-reaching and in-depth reform of the judicial appointments system before us in the form of this Bill. I am confident that the measures are required. However, I want to see precisely after five years of its application how effective these developments are in practice. Section 5 requires the Minister to review the working of the legislation and report on the matter to the Houses. Deputies will want to see a full account of its operation. That review will take account of the work of the commission's procedures committee in reviewing matters after two years.

Second, the Government will not wish to leave judicial positions vacant once the commission is established and in the period before the procedures committee develops the statements setting out the procedures and the skills required of candidates. This issue is dealt with in section 63.

I am proposing this Bill as the best approach to ensuring to the greatest extent possible that the quality of our judicial system is maintained to the benefit of everyone in society. It is difficult to overstate how significant these reforms are. Lest there be any doubt about the matter, I wish to make it clear that, in moving from scheme to Bill, we have taken account of a great deal of what the Judiciary has had to say, including on merit, canvassing, the selection of lay candidates, the provisions relating to academics and other matters. What we have not done is move away from the fundamental undertakings as to the composition of the majority and chairperson, which are covered in A Programme for a Partnership Government. I therefore commend the Bill to the House.

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