Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I have no doubt but that Senators will be aware that the Bill, which had its Second Stage reading in the Dáil last summer, has been thoroughly debated and quite comprehensively amended during its passage through the Lower House. Due to mainly procedural challenges on Report Stage, a significant number of official amendments could not be moved. I intend tabling these mostly technical provisions before Senators at the appropriate Stage.

Let me be clear, however, that there are some substantive changes that I want to reinstate in the Bill which were an integral part of the Bill as published. I do not wish in any way to gainsay the will of the Dáil in this matter or indeed the will of Seanadóirí, but there are some critical issues that the Government is committed to legislating for, not least the provision for a lay majority on the commission. These are proposals which I want this House to have the opportunity to consider in its own right. I will return to this and other issues presently.

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 to deal with judicial appointments in the State.These are innovative reforms of the judicial appointments process that has been operating for the past two decades or so. The Bill also sets out a progressive and forward-looking approach to allow for ongoing improvement and updating of the appointments arrangements to best suit the justice, social and economic environments as they evolve.

At the end of 2013 and going into 2014, the then Minister for Justice and Equality set about bringing our system of judicial appointments in line with international best practice. An innovation in this area was to engage in a process of public consultation and to get the views of stakeholders on the ideal model of judicial appointments and what it might look like to best cater for the needs of the judicial and courts processes in the 21st century. Themes in that consultation process included: the need to continue to protect the independence of the Judiciary; the role of the Judicial Appointments Advisory Board; eligibility issues; and diversity among our judges and the Judiciary. The Bill reflects the outcome of that process and the research and policy analysis which followed it in my Department. Reform does not imply that the present system has impaired the quality, diligence and integrity of the judicial function, which has contributed greatly to the success of Ireland as a modem democratic State. I do not believe anyone would argue with. Under this Bill, however, the appointment system needs to be expanded, modernised and resourced.

The provisions of the 1995 Courts and Court Officers Act, as amended, were significant at the time, introducing a new independent element to the judicial appointments process. Article 35.1 of the Constitution provides that judges are appointed by the President. Under Article 13.9, such power is exercisable and performable only on the advice of the Government. Nothing in the Bill adds to or takes away from that position. At the same time, the onus rests on us to continuously assess the need to update our legislative arrangements and in this case the appointments system to ensure they are at all times fit for purpose. We are all agreed that it is timely now for the Oireachtas to legislate for the systems and procedures that are needed to support decision-making in the context of these constitutional arrangements and functions.

It was progressive in 1995 to bring lay people 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. From this standpoint, after more than 20 years of this experience, notwithstanding the outstanding work of the JAAB and the high calibre and quality of our judicial appointees, the arrangements now seem limited in a number of respects. The Bill brings the system to a new level of openness and effectiveness. The JAAB deals with first-time judicial appointments only. These procedures are concerned with only one dimension of the judicial appointment process. The elevation of serving judges from one court to another is specifically excluded from the remit of the appointments board. There is in effect, therefore, no system at all, other than the Constitutional process in place to deal with this category of appointments, which can be significant appointments to senior positions in the Judiciary. In this regard, it is important to note that at every remove we have been particularly fortunate to be in a position to appoint the highest calibre of exceptional individuals. However, it not good enough in the Government's view that in this day and age there is no statutory process in place to address perhaps the most important appointments to any offices in our State. The requirements of transparency, accountability and good governance demand that we update our arrangements in the manner envisaged in the legislation. In consequence, the new commission will have a remit under it to deal with all appointments. That is a big advance and improvement compared to what we have now. The approach is in accordance with the views of the Judiciary.

In the Bill, as published, the Government's intention was to provide that the appointments process for the three most senior posts in the Judiciary, namely, Chief Justice, President of the Court of Appeal and the President of the High Court, would be subject to a variation of the general process. That variation was broadly similar to the arrangements deployed in the recent filling of the posts of Chief Justice and President of the Court of Appeal. However, a statutory basis for that did not find favour in the Dáil and the Bill was amended on Committee Stage to provide that the regular process for applications generally under the Bill will apply in the case of these three senior posts. I am considering how best to approach this matter and I welcome the views of Senators on how best to do so. We will have the opportunity to discuss on later Stages how best we might do that.

I wish to address the matter of recommended names. Where the appointments board has a role under the current arrangements in recommending persons for appointment, the board must recommend at least seven persons, if it can, to the Minister of the day. The legislation amends that radically. The Bill the Government published provided that three names should be furnished by the commission, if possible, in respect of a vacancy among the Judiciary. Where there are two vacancies, the Bill provides that five names would be provided by the commission. The new independent commission will, therefore, have a much more definitive and meaningful selection and recommendation function than currently pertains with the advisory board. The amendment made to the Bill in the Dáil in this respect enhances the determinative nature of the commission's work. Section 40 requires the commission to rank those names in order of preference. I have been advised that this is constitutionally permissible. There was a strong view in the 2014 submissions, including that of the Judiciary, that the slate of candidates presented to Government needs to be reduced significantly.

No dedicated resource was assigned in the legislation to support the appointments board over the years. It has fallen to the Courts Service to provide the resources necessary. It has provided the necessary financial, technical and administrative support to the board. I acknowledge this invaluable contribution to the process. However, the Government envisages the commission having a more substantial role than JAAB, not only in recommending persons for all judicial positions but in the longer-term development of procedures for appointment. I am convinced that the commission's work should be adequately supported. This is too important an area to leave with an undetermined resource. I am providing, therefore, in Part 5 for a commission office and director, which will cost approximately €500,000. This will not be a quango, but a lean, professional and independent organisation with a small but sufficient resource base to allow it clearly to stand on its own feet.

The three elements I have mentioned are significant - first, the expansion of the recommendation system to every judicial post in the State; second, the move to three recommendations in order of preference; and, third, a proper resource with a modest budget. They have been overlooked in a rush to criticism of the Bill in some quarters on the basis of other elements. I will address these as well.

I wish to deal briefly with the issue of membership composition. It is more than 20 years since the JAAB process was conceived in legislation. That was the first time the Government function in the matter was supplemented by an independent element in the process. It was the first opening to any scrutiny of the process and, at the time, it was an important move forward. The justice system now operates in a modern administrative environment. More transparent and participative approaches are apparent in public policy decision-making models here and on the international stage. In this context, the new commission will have a strong lay representation reflecting today's governance and participation models of public policy decision-making. This legislation is largely about getting the balance right between different contributions and interests. There is a discrepancy, effectively technical in nature, in the Bill regarding the number of members of the commission. Section 10 provides that the commission shall have 13 members. However, the section otherwise goes on to provide for a membership of 16 persons. This arose as a result of an amendment being passed by the Dáil that provided for three additional members, despite the amendment to change the number upwards from 13 not having been successfully passed. The Ceann Comhairle explained in some detail how this came about. He made a ruling as to how several other amendments in my name could not subsequently be moved. My intention was to provide for the membership of one further layperson, subject to changing the stipulated number from 13 to 17, so that the commission will have a full complement and so provide for the fundamental aspect of the programme for Government which is the assurance of a lay majority.