David Stanton (Cork East, Fine Gael) | Oireachtas source

I thank Senator McDowell for raising this matter which I am pleased to address on behalf of the Tánaiste, who apologises for not being here today. The Government's general scheme of a judicial appointments commission Bill was the subject of pre-legislative scrutiny, in conjunction with Deputy Jim O’Callaghan’s Bill, at last week's meeting of the Joint Committee on Justice and Equality. The Tánaiste intends to take account of the feedback from that meeting when she introduces improved and elaborated proposals in a Bill that is to be published at an early stage for further discussion and examination by both Houses. The Government's proposals arise in the first instance from policy consideration of the responses to a 2014 public consultation and call for submissions on the need for the existing provisions for eligibility for judicial appointment to be reformed.

A commitment to the establishment of a new judicial appointments commission was made in the 2016 programme for Government and as part of the confidence and supply arrangement between Fianna Fáil and Fine Gael. The design of the Government proposals, which allow for a lay majority of one and a lay chair, will provide for a much-needed critical mass of non-judicial and non-legal people in the selection process and will ensure there is a wider set of expertise and experience among the lay people who will be represented on the commission. It seems there are no difficulties with the lay chair and lay majority concepts in the jurisdictions of England and Wales and Scotland, where judicial procedures have been fully reformed in recent times. In line with a commitment in the programme for Government, the Chief Justice will be a member of the commission. As the most senior member of the Judiciary, the Chief Justice will make a critical and highly influential input into determinations on the suitability of candidates for judicial office. I believe the overall balance proposed by the Government is correct.

No one will disagree that the Judiciary can play an important role and make a hugely significant input in the judicial selection process on the basis of its unique knowledge, skills and experience. The Tánaiste acknowledged this specifically at last week's joint committee discussion. The Government's proposals, which deliver on the commitment in the programme for Government, will reduce from seven to three the minimum number of names the commission will recommend to the Government for appointment. There will be two additional names to correspond with each additional vacancy. As the Senator may have noticed, the Tánaiste said last week that she intends to include in the legislation a prohibition on canvassing, which will prevent any person, candidate, applicant or otherwise from seeking to interfere with or compromise in any way the selection procedures.

It needs to be emphasised that judicial selection is an administrative or non-judicial function, as opposed to a judicial function. The formal function of appointing judges by the President is not one of Presidential discretion, but is to be performed only on the advice of the Government in conformity with Article 13.9 of the Constitution. The current proposal to replace the Judicial Appointments Advisory Board with a modernised Commission will not change anything from a constitutional point of view. It is now a standard international model to have judicial appointments commissions in place to select and recommend candidates, while executives remain responsible for the formal act of appointing judges. Building on the enactment of the Judicial Appointments Advisory Board legislation in 1995, it is clearly a matter for these Houses to consider what should go into legislation to reform the appointments system. It is a matter for the Government and any Member of this or the other House, as the case may be, to propose to the Houses what should be in such legislation.

Nothing in the reforms proposed by the Government impinges on the independence of the Judiciary. Equally, nothing in the proposals could impinge on the constitutional prerogative of the Government to advise the President on appointments. The proposed legislation enhances the independence of the Judiciary in a number of ways, for example, by establishing a body to design and conduct independent and professional selection processes leading to the recommendation to the Government of the names of proposed appointees to judicial office. Engagement with key stakeholders is continuing. Senators will be aware that the establishment or amendment of a judicial selection system through legislation is a matter for the Oireachtas alone. There is no authority other than the Oireachtas on what the new legislative arrangements may be. It is the Government’s prerogative to bring proposals to the Oireachtas for enactment. That is an objective we are determined to realise. We should always acknowledge and value the enduring independence of the Irish Judiciary which has provided a constitutional structure that has enabled this State to withstand enormous political and economic threats to its existence and stability.