Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Iwant to make reference to some of the points made by Senators. I will do so in the context of my having been very pleased to have had the opportunity to sit here listening to many very constructive contributions and important suggestions, all of which I will reflect on for Committee Stage, acknowledging, as I do, the number and variety of amendments to various sections that I am expecting from Opposition Members. I look forward to those. I am very keen to have appropriate time given to Senators to reflect on this debate, to examine the Bill as passed by Dáil Éireann and to allow for informed amendments to be tabled. I am not coming in here today saying I want amendments tabled in the next couple of days or that I want this debate to resume here next Tuesday. Acknowledging that there are some shortcomings in the legislation that we need to address, I am happy to allow time to facilitate the drafting of amendments following due consideration.

Senator Lorraine Clifford-Lee spoke about compliance with European standards and the criticism by the European Commission. I acknowledge that there was criticism. It is important that the point raised by Senator Clifford-Lee is addressed. When the European Commission made its comments in March, when it published its 2018 country report on Ireland as part of the European semester, it based its criticisms on a proposed appointments body comprising three judges and a membership of 13. It is fair to say the commission received a specific submission from the Irish Judiciary, and I am sure that heavily informed its view. The criticism was based on the appointments body proposed, but it is now different based on amendments made on Committee and Report Stages in the Dáil. The Commission stated:

The envisaged composition of a new body for proposing judicial appointments raises concerns regarding the level of participation of the judiciary in that body. The proposed composition of the Judicial Appointments Commission, which would comprise only 3 judges over 13 (including a lay chairperson accountable to the Oireachtas) would not be in line with European standards...

It acknowledges specifically that this was opposed by the Association of Judges of Ireland. The commission refers to paragraph 47 of recommendation 12 of 2010, adopted by the Committee of Ministers in the Council of Europe. This sets out that an independent and competent authority drawn in substantial part from the Judiciary should be authorised to make recommendations or express opinions concerning the selection of judges. As Minister for Justice and Equality, speaking on behalf of my Government colleagues, I emphasise that the Government has taken note of the European Commission's comments but there is no single international binding standard in this area, nor is there anything that might be considered an acceptable international norm in this area. It is important to point out that within the international forum, the Irish common law system needs to be acknowledged.It is worth noting that the 2010 Council of Europe recommendation also states at paragraph 48 that membership of the relevant independent authorities should ensure the widest possible representation. I have no doubt that consideration of "widest possible representation" goes beyond mere membership by judges or the Judiciary.

In any event, it is my view now that the European Commission comments are by and large redundant given that the structure of the proposal for the appointments commission has been changed and expanded to ensure a greater judicial input and a substantial judicial presence. That is why I was pleased that the Lower House accepted the proposal to allow for a voice on the commission for judges from each arm of the courts. I believe that has improved the Bill. That was also an important point and submission made by members of the Judiciary in the context of my discussions with them. I acknowledged that point in light of their expertise and experience over the past two decades under the appointments board system. What we have now is greater judicial input coupled with a strong legal presence and membership drawn from both arms of the legal profession, the Bar Council and the Law Society of Ireland, as well as a lay presence. In the context of diversity and having a membership that in some way reflects, or, if not, is fully representative of, our society a lay presence is important. That is provided for in the context of maintaining the programme for Government commitment to a lay majority component.

I want to acknowledge many of the constructive suggestions made by Senator McDowell, in particular when he makes reference to political engagement or involvement, very much with a small "p". Senators need no reminding that the constitutional imperative of Government is still very much retained. There was never any question that this legislation in draft guise, prior to publication, at pre-legislative scrutiny stage or in during the public consultation would consider the issue of a referendum to change the Constitution to allow for a system of appointment other than by Government. To my mind, that never gained traction either in the political or legal arenas or among the wider public. That was an important point made by Senator McDowell and the legislation has been formulated against that background.

I did not hear Senator McDowell specifically reference the senior appointments group, but I would invite him to do so because many of the points he made would fit comfortably into what was in the Bill originally but is not now in it. This is something we should revisit with particular reference to the method and mode of appointment for the three most senior judicial figures in the State, namely, the Chief Justice, the President of the Court of Appeal and the President of the High Court. We should revisit how those appointments in particular might fit into what I can describe as the regular or common or garden process within the legislation before us. We should revisit the original intention, which was that there would be a senior appointments group for dealing with these three important appointees, the three most senior appointees. If I heard Senator McDowell correctly, he spoke about a more general interview process, perhaps a more protracted and lengthy process, and how that might not be the most attractive means by which we could arrive at selecting the three most senior appointees for judicial office. I will be revisiting the matter but I call on to Senators to consider how best that might be done having regard to what we have before us at present.

I wish to acknowledge the strong contribution of Senator Boyhan. I agree fully with his comment that there are aspects of this Bill in respect of which it would be somewhat challenging to find cross-party or all-party agreement in the Seanad. However, he undertook to work in a collaborative manner. That is important and that is what we are here for. I welcome his comments and I hope we can all work to that spirit, if not to the letter, in the coming weeks.

I wish to acknowledge Senator Ó Domhnaill's strident contribution. I agree with much of what he had to say. He declared that he was not lobbied and that he came to this more dispassionately and perhaps more objectively than some of us might profess to be. That was an important contribution and I was struck by it.

Reference was made by several Senators to the fourth evaluation round compliance report on Ireland by the Council of Europe monitoring body GRECO. It is important to note that a plenary session is taking place in Strasbourg today that will examine the state of play with regard to this legislation. The examination is an important aspect of the fourth round evaluation currently under way. I know some Senators had the opportunity of engaging first-hand with GRECO, just as I had before I joined Government. It is important that this august body monitoring every move of our legislative programmes will be able to see and acknowledge the progress that we have made in the matter of the implementation of GRECO recommendations. While there has been criticism by that body of us, as legislators, and of the Government, as executive leader, there have been many positive developments since the publication of the compliance report in June last year. I expect that progress will be reported in a further positive light when we get sight of the next report.

I wish to make brief reference to the mention made by Senator Buttimer, Senator Boyhan and others of the lay involvement, especially the status or position of the lay or non-legal chairperson in section 12, which was formerly section 15. Section 12 deals with the recruitment of lay members by the Public Appointments Service. As Senators will be aware, the section was heavily amended on Committee and Report Stages in Dáil Éireann. I imagine Senators will agree that if we compare the initial draft with what we have now, the changes from what was section 15 to what is now section 12 are stark.It is unfortunate that there are a number of inconsistencies in the section. Of course, there is now a gap or a shortcoming. Senator Norris would probably put it in more strident terms than that.