Ivana Bacik (Independent) | Oireachtas source

I move amendment No. 7:

In page 9, between lines 24 and 25, to insert the following:"Obligation to uphold judicial independence

7. (1) The Public Appointments Service and the Commission and their members—

(a) shall, in performing their functions under and in connection with this Act, uphold judicial independence,

(b) shall not, in connection with the performance of those functions, take advice or directions from any person otherwise than in accordance with this Act,

(c) shall not perform any of those functions with a view to influencing the interpretation of the law or the Constitution by the courts.

(2) Without prejudice to the generality of subsection (1)—

(a) a person shall not apply for appointment as a lay member of the Commission with a view to influencing the interpretation of the law or the Constitution by the courts,

(b) a person who applies for appointment as a lay member of the Commission—

(i) shall not provide in connection with that application any information relating to the person’s political opinions or religious or philosophical beliefs, and

(ii) shall not be asked, and if asked shall not answer, any question relating to—

(I) the person’s political opinions or religious or philosophical beliefs, or

(II) the merits of any change in the interpretation of the law or the Constitution by the courts,

(c) a person who applies for appointment to a judicial office—

(i) shall not provide in connection with that application any information relating to the person’s political opinions or religious or philosophical beliefs, and

(ii) shall not be asked, and if asked shall not answer, any question relating to—

(I) the person’s political opinions or religious or philosophical beliefs, or(II) the merits of any change in the interpretation of the law or the Constitution by the courts.".

I am delighted to have the opportunity to introduce this amendment. It is an important amendment that sets out a core principle for all of us who are interested in the reform of the judicial appointments process and upholding the core democratic principle of judicial independence. I hope the Minister will at least consider accepting it and that other colleagues will consider supporting it.

This amendment would insert into the Bill a new section 7, entitled, "Obligation to uphold judicial independence". It sets out various points that the Public Appointments Service, the commission and members shall uphold. It starts by stating the Public Appointments Service, commission and members shall, "in performing their functions under and in connection with this Act, uphold judicial independence". I will not go through the amendment word for word but Members will see it proceeds to set out how the principle of judicial independence shall be upheld. It states, in particular, that a person shall not apply for appointment as a lay member of the commission with a view to influencing the interpretation of the law or the Constitution by the courts. It also provides that people who apply for appointment as lay member shall not provide information relating to political opinions or religious or philosophical beliefs. The same principle applies to a person who applies for appointment to judicial office. It sets out the means by which we believe the core principle of judicial independence should be upheld. We do not see that anyone could object to this; we see it as an important part of a package of reforms.

In my Second Stage contribution, I referred ongoing litigation in the High Court. Ms Justice Aileen Donnelly has sent a preliminary reference to the European Court of Justice concerning an extradition to Poland, of which the Minister for Justice and Equality will be well aware. The Advocate General's recently published opinion, citing existing EU case law, held that maintaining independence of national courts and tribunals is an essential guarantee of independence and that it is inherent in the task of adjudication. I am grateful to Senator McDowell for providing to us some of the text of that important opinion. The Advocate General went on to say: "It cannot, to my mind, be ruled out that lack of independence of the courts of the issuing Member State may, in principle, constitute a flagrant denial of justice." That is precisely the issue at stake in the Polish extradition case. I refer in particular to the issues associated with the changes - I will not call them reforms - to the judicial system in Poland that have caused such concern among so many people and institutions across the European Union. We are seeking to have this amendment accepted in that vein.

We discussed at length last night what is in the GRECO report. I read to the Minister relevant excerpts from what I have, which purports to be an excerpt of the up-to-date GRECO report. I refer in particular to paragraphs 35 and 36. It is worth repeating, because it is directly relevant to the text of the amendment, that in the as-yet-unpublished report, which we do not yet know for sure has been read by the Minister, GRECO states it has significant concerns about the composition of an appointments commission as proposed in the Bill, as amended on 31 May 2018, which "would place judges in a clear minority position in favour of a strong lay representation (including the chairperson) accountable to parliament." It states this is not in line with European standards, which in situations where final judicial appointments are taken by the Executive calls for an independent authority drawn in substantial part from the Judiciary to be authorised to make recommendations or opinions prior to such appointments. Paragraph 36 states GRECO urges the authorities to reconsider this matter to limit potential risks of improper influence from the executive of political power over the appointment process to the Judiciary or any perception thereof, and to do so in close co-operation with the judicial authorities. This is all prefaced by the statement by GRECO that it takes the view that the Bill, as far as the composition of the appointments commission is concerned, needs to reflect European standards, aiming at securing judicial independence through more substantial judicial representation in respect of the overall composition of the proposed commission. GRECO is framing its comments on reform in terms of the need to uphold judicial independence. We believe, therefore, that one of the best ways to ensure judicial independence guaranteed is to state that overtly and specifically, as we do in the amendment, which seeks to create a new section 7 setting out specifically an obligation to uphold judicial independence. We do not see how there could be any objection to this. We believe it would be important in any process of reform to state this clearly. It would go some way towards dealing with the concerns that GRECO expressed in the aforementioned paragraphs of the as-yet-unpublished report, which I hope we will all see.

It would have speeded the debate up considerably if we had sight of that report in advance of drafting our amendments, or at least in advance of this resumed Committee Stage. That is why my Labour Party colleagues and I, along with Senator David Norris, tabled an amendment to the House on the Order of Business this morning. I am sorry it was not supported. I hope we will see the GRECO report without delay. The Minister said he would bring it before the Cabinet tomorrow, which will be at the earliest opportunity. He might say whether we will have cited later tomorrow or before the weekend to facilitate us in our further deliberations on the Bill.

This is a constructive amendment. It seeks to strengthen the declared principles lying behind this Bill. I hope the Minister sees fit to accept it. I hope others, including members of Sinn Féin, who have so far consistently voted in a bloc with Fine Gael on this, will see fit to support it today.

If, with the best will in the world, the Minister is expressing willingness to engage with us and consider amendments we have tabled, as he has just done with Senator Michael McDowell on amendments Nos. 6 and 110, the problem is that, given the tight timeframe we have been told we are working towards, it is difficult to see how any real engagement can take place on any amendments between now and Report Stage. We are told we will sit late tonight and probably late tomorrow night, and we will probably sit all day on Monday. We will probably sit late next Tuesday and Wednesday nights to have Report Stage rammed through the Seanad so the Bill can go back to the Dáil before its final sitting day, which is tomorrow week. That does not give us great comfort, nor does it reassure us that there will be any real engagement on any of the amendments we put forward and which we have tried to craft carefully.

Some of the amendments I have redrafted in conjunction with Labour Party colleagues were not tabled in the Dáil and it is important that they be given due consideration in the Seanad. We are willing to do that but we are concerned about the tight deadline we are working towards, to which many of my colleagues and I have objected, particularly given that we do not have sight of the full information we should have in having this debate. I am trying to be constructive and I will not go on any further. I hope colleagues will see fit to support this important amendment we are putting forward in the spirit of constructive reform of the judicial appointments process.