Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I acknowledge the number of speakers who made a contribution to the debate and thank them for their comments. I have listened carefully, as has my colleague, the Minister, Deputy Shane Ross, to the contributions made in the House in the past week or more. It is fair to say we have had an open and lengthy debate, properly so. It is important to acknowledge that Deputies have expressed differences of opinion about a number of aspects of the Bill and that is how debate should be conducted. Having listened to the contributions, I am open to reflecting on how aspects of the Bill might be improved on Committee Stage and as the Bill progresses through the House. Deputies have generally accepted the need for reform and an update of the current 20 year old system. There is an obligation on us, as legislators, to ensure the reforms we bring forward are not only appropriate but effective.

I reject any notion that the preparation of the Bill has been rushed or that it represents a response to A Programme for a Partnership Government 2016 to the exclusion of anything else. Domestically, the Bill is the result of an extensive consultation process commenced by my Department over three years ago. Internationally, the Bill will enable the Government to maintain and enhance Ireland’s reputation for having an independent and professional Judiciary which is ranked among the best and most effective in the world.

Last Thursday we welcomed the Secretary General of the Council of Europe, Mr. Thorbjørn Jagland, to the House. I was pleased to be able to meet him at the start of his official visit to the country in advance of the publication by GRECO, the Council of Europe Group of States against Corruption, of its seventh round compliance report on Ireland. I was one of the few Deputies in the House who had the opportunity to be an interviewee in the lead-up to the GRECO report. The report concludes that Ireland has not implemented recommendation No. 7 of the fourth round report on Ireland which called for the current system of selection, recruitment, promotion and transfer of judges to be reviewed, with a view towards targeting the appointments at the most qualified and suitable candidates in a most transparent way. The enactment of the Bill will address GRECO’s concerns about the system for appointing judges.

I might remind Deputy Michael McGrath who discussed this issue at some length that the Bill has been the subject of intensive consultations with members of the Judiciary. Much of the Bill reflects reforms they have sought during the years.

During the course of the Second Stage debate Deputies raised a number of points. Given the time available, the House will forgive me if I am not in a position to cover all of them. However, I understand and expect we will have an opportunity to revisit all of these aspects in the course of further deliberations in the House on Committee and Report Stages.

At the outset of the debate, following my contribution, Deputy Jim O'Callaghan appeared to suggest we were somehow losing the expertise and input of judges in determining who was best suited to become a member of the Judiciary. The Bill provides that the three most senior judicial office holders will be full members of the commission and, contrary to an impression some Deputies, including Deputy Niall Collins, have created, all five court Presidents, including the President of the Circuit Court and the President of the District Court, will be very much involved in the decision-making committees when it comes to deciding who is to be selected and recommended for appointment to their particular courts.

Deputy Jim O’Callaghan and other Deputies, including Deputies Bríd Smith, Stephen S. Donnelly and John Lahart, expressed the view that the retention of the Attorney General on the commission was maintaining an interest on the part of the Government in the process and was, therefore, questionable in some way. This could not be further from the truth. The Oireachtas decided in 1995 that the Attorney General should be a member of the Judicial Appointments Advisory Board, JAAB. The reason for this, which is still applicable, is that the Attorney General is uniquely placed to assist in assessing the suitability of those coming before the JAAB. That will also be the case with the new commission, given the vital role of the Attorney General vis-à-visthe Bar, the interaction of the Office of the Attorney General with members of the legal professions and the experience and expertise of the office in dealing with rulings of the courts.

The Deputy further suggested lay people would not have an adequate insight into what was required to do the job. To my mind, the now improved text of section 15 of the Bill which sets out meticulous requirements on the suitability of lay persons as members of the commission, as well as the experience of lay persons in neighbouring jurisdictions, with the criteria for selection procedures to be developed under Part 8, all ensure non-legal or non-judicial persons will be more than capable of performing the functions to be assigned under the Bill. I remind the House that there are three lay members on the existing Judicial Appointments Advisory Board and their input during the years has been particularly positive and welcome. Deputies Niall Collins and Mattie McGrath compared the Private Members' Bill unfavourably in that regard. There will be nothing to prevent representatives of the bodies mentioned in the Bill from coming forward to serve on the new commission, but there is no justification for restricting non-legal people to these bodies only.

Deputy Jonathan O’Brien indicated that he would seek amendments on the training requirements of the Judiciary and aspects of the lay qualifications for membership. He also referred to judicial conduct and the matter of ethics. I note the support of the Deputy for many of the measures contained in the Bill and his intention to bring forward amendments in respect of some aspects. Other Deputies also raised issues about ethics and the lack of a complaints mechanism in relation to the Judiciary. The House is aware that the Tánaiste recently published the Judicial Council Bill 2017, another piece of important legislation, which I hope the House will have an opportunity to debate in the coming months with a view to having it enacted by the end of the year.

Deputy Brendan Howlin appeared to suggest the Public Appointments Service process was some form of perpetuating mechanism for senior public servants and, presumably, board appointees. I am unsure if this was what he intended to suggest. Certainly if it was, it was an unexpected and inaccurate contribution to the debate. State board appointments are now managed through the Public Appointments Service. Are we to take from the Deputy’s comments that this independent mechanism is a sort of fit-up for appointees? If that is the case, I reject it as inaccurate and misguided. The Deputy appears to suggest that opening up eligibility for appointment to the High Court for District Court judges and, more broadly, the general requirement that serving judges must now go through a commission process risk damaging the independence and subjectivity of judges who may wish to advance. In this case I state categorically I do not agree. We are moving the selection decision process to an independent commission and a key principle of reform, called for by the Judiciary, is that, in the furtherance of independence, serving judges should be required to go through an open and transparent selection process.

Deputy Richard Boyd Barrett and other Deputies referred to the experiences of other jurisdictions and the lessons that could be learned, for good and not so good, from them. We have looked at the experience in other common law jurisdictions, which is entirely appropriate and advisable. We are not trying simply to follow that line. However, recent reforms have been instructive, in the United Kingdom particularly, and we can only benefit from taking the opportunity to adapt and develop our own best practice through looking at what can be described as acceptable international best practice. That is what we are doing in the debate.

Deputy Mick Wallace suggested the model in England and Wales in which just one recommendation is made, with provision for rejection and-or reconsideration of the recommendation made, might be a preferable approach. This argument was followed by Deputy Thomas Pringle. Because of the constitutional provisions for judicial appointments here, the Government must be the decision-making entity. My advice is that there should be three names and no fewer, where they can be provided, in order to allow the Government to exercise its function under the Constitution. I add, on a point made by a number of Deputies, that my advice is that a strict order of merit would not be fully consistent with the discretion that must be afforded to the Government under the Constitution in dealing with this matter.

To respond to a point raised by Deputy Clare Daly, I want to be clear that the Minister is not part of any senior judicial appointments advisory committee as set out in the Bill. Although this had been proposed in the general scheme, it is not included in the Bill, for which I believe there is a broad welcome.

Deputy Ryan and others were of the view that the Bill represented something of an attack on the Judiciary. I clearly cannot accept any suggestion of the sort. I set out in my opening remarks the extent to which essential aspects of the reforms from day one were consistent with key aspects of the submissions made by the Judiciary. I also explained how the Bill had been adjusted to take account of further matters raised in close consultation with the Judiciary. Yes, there are different viewpoints, but the Bill can in no sense be interpreted as an attack on the Judiciary, nor could it possibly be intended to be such.

Deputies Willie O'Dea, Éamon Ó Cuív, Robert Troy and others made the point that the office of Chief Justice was at the pinnacle of the judicial arm of the State and ought not to be overlooked in determining the position of chairperson of the commission. Under the Bill, a commission function will be to select and recommend persons for appointment. While the Judiciary will be centrally involved in that function, selection and recommendation for appointment to judicial office are not inherently judicial functions. The Chief Justice will have a direct role in the selection of persons for appointment to all courts and it is important this be the case.

Deputy Jack Chambers expressed concern about the identity of the lay chairperson. I do not accept the premise that because we simply do not yet know who the lay chairperson will be, it in some way demonstrates a flaw in the thinking behind the provision. How do we ever know who will be the chairperson of a new statutory body for which we provide in new legislation? I do know that the non-legal non-judicial chairperson will be eminently suitable, fit and proper to be appointed because the requirements of section 15 are exacting and onerous. This is something to which we can return on Committee Stage. I trust the Public Appointments Service to do its job in the appointment of the non-judicial non-legal chairperson and the other non-legal members of the commission who may from time to time be appointed. No appointments of lay members may be made unless both Houses pass a resolution approving them.

In response to points raised by a number of Deputies, including Deputy Marc MacSharry, it is essential that there be a critical mass of non-judicial, non-legal voices on the commission with a range of expertise and experience to complement the indispensable inputs of the senior Judiciary and legal members. In that regard, I echo points made by the Minister, Deputy Shane Ross, in the course of the debate and in public utterances on the Bill that one should not conflate the idea of having non-legal or lay members with inexperienced or non-expert members. Listening to the commentary of some Members of the House, one would be forgiven for thinking it would be a random selection of men and women off the street.

There will be an element of experience and expertise, although broader than the strict confines of the tradition of legal service, qualifications or judicial qualifications. I agree with the Minister, Deputy Ross, in that regard.

Deputy Danny Healy-Rae emphasised his confidence in the Judiciary, as did Deputy Murphy. I share that view. The Bill is simply about modernising and strengthening the system we use to select persons for appointment to judicial office. It is not, as Deputy O’Brien suggested, a reflection of some sense of dissatisfaction with the Judiciary. There is no logic in that interpretation.

Deputy Shortall and others made several points about entry to the legal professions from which judges are drawn and related matters. These are interesting points and there is much to them, but they are extraneous to the Bill. Again, the scope of this Bill is focused on the appointments mechanism.

The Minister of State, Deputy Finian McGrath, spoke on issues of diversity. These matters are close to his brief and I thank him for that contribution. We have built in diversity objectives into this Bill. These will be the subject matter of debate on later Stages.

Deputies McGuinness and Browne said we are putting an unnecessary quango in place. The new commission will replace the Judicial Appointments Advisory Board which is resourced from within the Courts Service. The replacement of that board with a new commission will represent a modest but much needed investment to bring the system into the 21st century. While there may not be an enormous number of appointments annually, each appointment is vitally important, as there can be, of course, hundreds of applications annually.

This is not the only business the commission will undertake. The Bill tasks the commission with a significant research, development and consultative role to ensure the State has in place and maintains a best practice model of judicial selection that is kept up-to-date with and abreast of international best practice. A specialist body of that nature will generate a small staffing requirement. It needs adequate resources to function effectively. The similar Private Members’ Bill, referred to during the course of this debate, also identified a staffing requirement.

On the remarks of Deputies Ó Cuív, Kelleher and Donnelly regarding the information that the commission will provide to the Government, the position is that, under section 47, the commission must give to the Minister a statement of recommendation setting out the reasons a person is considered suitable for appointment to the judicial office concerned. Section 45 requires the commission to provide the results of any test and interview. This is in addition to information already required to be provided under the existing arrangements.

Several Deputies raised concerns about the involvement of the Public Appointments Service. The important aspect about the selection of lay members is that the independent Public Appointments Service will do it. Accordingly, there can be no charge of political or legal interference or presumption of bias or preferential treatment in who is selected as a lay member. The Public Appointments Service will conduct a selection process and recommend the names to the Minister. The Minister will appoint them but only following resolutions approving the appointments in the Houses of the Oireachtas. This is fair and reasonable and will meet the concerns of the Minister, Deputy Ross, and other Members.

Contrary to suggestions, I cannot see how this process could be construed as anything other than independent or how it could be characterised as being some sort of insider preferment nor can I see how it could be predicted that this would be more likely to deliver lay commission members with a so-called agenda than, say, a nominating body would. The Public Appointments Service is the centralised provider of recruitment, assessment and selection services providing recruitment services to many public bodies. It is the recognised leading recruiter for public service jobs in the State. I cannot think of a more appropriate body to be involved in the recommendation process.

On matters concerning conduct and ethics, Deputies drew attention to several matters of concern which, while not within the scope of this Bill, fall to be dealt with in the context of the Judicial Council Bill. The Tánaiste published that Bill on 1 June 2017 in tandem with the Bill before us. It is now awaiting Second Stage in the Seanad. Its purpose is to provide for a judicial conduct committee which will investigate complaints about judicial misconduct where the conduct is not sufficiently grave as to warrant recourse to Article 35 of the Constitution. It has taken considerable time to prepare this legislation. I hope Members of the Seanad will not say it was rushed because, like this Bill, it was far from rushed. It was a product of much consultation and long sought after by members of the legal profession and the Judiciary, as well as the general public. Following the progress of this Bill over the next several weeks and its ultimate enactment, I hope similar progress can be made with the sister Bill, the Judicial Council Bill. I look forward to introducing that legislation to this House at the earliest opportunity. Again, I call for a full and frank debate on that legislation and encourage all Members to make a contribution on an important piece of legislative architecture dealing with the Judiciary.

I acknowledge the contributions of Members, all of which were important, and thank them. Some of them will confirm progress on the Bill. I commend the Bill to the House.

See this speech in context