Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Senators will be aware that an amendment of mine on Report Stage in the Dáil achieved that objective. The Bill, as passed in the Dáil, provides for membership of the commission by these five senior judges. That is important. The Bill also includes an Irish Human Rights and Equality Commission nominee. An amendment in that regard was inserted on Committee Stage in the Dáil. There are some similarities with what is already included in the Bill. The differences are those that make it impossible for me to agree with the Senator's amendment. Amendment No. 13 does not provide for a lay majority. In terms of composition, it does not amount to much in terms of reform of the current position. The current Judicial Appointments Board comprises five judicial members, two legal professional nominees, three non-legal persons and the Attorney General. The only change I can see in the amendment that would achieve any real reform, particularly with reference to the question of involvement, is the addition of one non-legal or lay member to replace the Attorney General. Amendments Nos. 15 and 21, in my name, will bring the membership to 17 by adding one further layperson to provide for a non-legal or lay majority. With the Senator's amendment, we are not very far advanced from the position in 1995, over 20 years ago.

Apart from what I see as the low representation of non-legal persons, a point rightly referred to by Senator Anthony Lawlor, the main change in amendment No. 13 would have the effect of dropping the Attorney General altogether from the process. It is true that this was the effect of the amendments passed on Committee Stage in the Dáil. On Report Stage, based on my amendment, the Dáil agreed to reinstate the Attorney General on the commission. I do not envisage going back to the last version of the Bill in order to remove the Attorney General. I want one moment to outline why the Government, including me, is convinced that the Attorney General should be a member of the commission.The programme for Government commitment is to establish a commission with a lay majority and an independent chair. The Bill, as passed by the committee, provides for a lay chair. My intention in the Seanad, with the support of the Members, is to ensure that we have a non-legal or lay majority. With regard to the lay chair, the amendment provides that the commission shall select its own chairperson. In subsection (2) of Senator Clifford-Lee's amendment to section 10 is to operate in the context of not just a judicial and legal-professional member majority, but a simple majority of judicial members over the lay members. The amendment holds out the theoretical possibility that any of the commission members could be voted into the chair. I am concerned that there is no guarantee whatsoever that any lay person would ever chair such a commission. I do not accept that it is reasonable for us, as legislators, to leave these important institutional arrangements to chance or to what might happen on the day. All of us here are experienced politicians going to meetings where committees are elected and officers are elected and often leaving these issues to an "It will be all right on the night" approach is not in the best interests of the committee or, indeed, those involved.

As regards the lay persons and the nominee system, I would say to Senator Clifford-Lee that I know her party has consistently sponsored this throughout the process, but I am concerned that there is no role whatsoever for the Public Appointments Service, PAS. I would not be in a position to accept that. I am still convinced that the Public Appointments Service, operating on a set of competences, based on the provisions of the Bill, is the best method of obtaining the knowledge and experience that I have no doubt will be represented in some of these bodies. This an open, visible, tested and tried process. PAS was directly involved in the recruitment recently of our new Garda Commissioner. Why should the manner of appointment of members or, indeed, the chair of this new commission be any different?

We spoke about the Public Appointments Service earlier and I said it was a body that had reached certain standards of competence and excellence and that since its establishment it has served the Government and administration and people well. I did not hear any dissenting voice in that regard. My conclusion is that the PAS system is the most appropriate one, fulfilling, as it does, this role in respect of other like bodies. I would say to the Senators in passing that the chairperson of the Top Level Appointments Committee that has been referred to is not a senior civil servant, but is independent of the Civil Service. In any event, Senator Clifford-Lee's amendment poses a number of policy issues, which provides me with a difficulty and means that I will not accept it.

I want to mention the Attorney General, for clarity. I have already made reference to the will of the Dáil select committee that the Attorney General be removed from the commission membership provisions. The committee instead voted in favour of the inclusion of the chief commissioner of the Irish Human Rights and Equality Commission, IHREC. The element of those changes relating to the IHREC member was a positive result of our deliberations at the Dáil select committee. IHREC is the national institution tasked with protecting and promoting human rights and equality in the State. These areas are of fundamental relevance to the portion of matters which the Judiciary determines, whether it is to do with the powers and functions of Government, the values informing the criminal justice process or a range of personal rights relating to family, private property, education, religious freedom and the like.

With regard to the Attorney General, my view and that of the Government in this matter, and ultimately the Dáil accepted this on Report Stage, is that we wish to ensure the continuing involvement in the important process of judicial selection and recommendation of the officeholder on the new commission. When the job was first provided for in the Courts and Court Officers Act in the mid-1990s, it was seen as absolutely essential to have the Attorney General at the core of the body. The Dáil has accepted that now and I see no going back on this.

For the record, the service in this role of various Attorneys General over the intervening years has been immensely beneficial and has been complementary to the work of the other Judicial Appointments Advisory Board, JAAB, members, in ensuring and guaranteeing, in effect, that the very best of candidates for judicial appointment were, as a consequence, recommended for appointment. While there has been criticism of the appointments system, I have heard none here, nor indeed have I heard of any mistakes having been made, or misunderstandings having come through the system. JAAB and the system of appointments has served us well, was fit for purpose, and we are now reforming in order to ensure that we have best practice. The Attorney General had a pivotal role to play in the process from the start and my view is that the role of that office should continue into the future, and on the new commission. The knowledge and attributes of an Attorney General across a range of legal and, dare I say it, judicial matters are indispensable to the formulation of any view about the merits of a person coming forward for judicial appointment. We cannot ignore the fact that the day-to-day interaction with the law and the courts, and at the highest level of legal proceedings before the courts, provides the Office of the Attorney General with a unique perspective on the work of practitioners, as well as the deliberations of the courts themselves.

I see no valid point whatever in the notion that the Attorney General, in discharging his or her role at Government as legal adviser, is in some way as having two bites at the cherry, as was stated by some Deputies. It is because of the separate role he or she has at the commission - a role I firmly believe can only be discharged by the Office of the Attorney General - that to some degree this opposition to the Attorney General is inherent in this amendment. I cannot accept it.

I acknowledge the fact that we are discussing a large group of amendments here and that we are hitting at the heart of the change, the new system and the scheme of arrangement for the commission. However, I have yet to hear a convincing argument for forgoing or, indeed, casting aside the unique input of the Attorney General to the deliberation stage of selection, where very many names may be before the commission, as opposed the very limited number of names which now come to Government. As a result of that, the argument for the inclusion and retention of the Attorney General is even stronger now than it was in 1995.

I will address amendment No. 14, as proposed by Senator Bacik. This amendment addresses the composition of the commission and provides for 12 members, five senior court presidents - including the Chief Justice as chairperson, as supported by Senator Norris - and seven non-judicial members as the Senator terms it, all to be nominated by stipulated bodies, including the Law Society and the Bar Council, so this is lawyer-heavy. I have several issues with this approach, going over much of the same ground in respect of a more significant number of amendments that revolve effectively around the same points here.

Senator Bacik's amendment provides for no lay majority. My interpretation as to what is provided for is five lay persons per se, including one to be nominated by IHREC - we already have that in the Bill - and two legal nominees. This is not dissimilar to the other Senator's approach. The fact that there is no non-legal, or non-judicial or no lay majority in this amendment, and no lay chair, makes it impossible for me to support it. Additionally, there is no provision for the Attorney General. As I have stated, I see the role of the Attorney General on the commission as being vitally important. I have argued before that when it comes to a system solely where designated nominating bodies have the say in relation to the lay composition, we immediately run into difficulties.These are fine organisations. There is no argument about that. However, there are multiples of these organisations directly involved in justice matters, legal matters and relevant advocacy matters on the ground, so these could be considered as being as relevant, if not more so, to the task the Senator has in mind for them. I wish again to bolster my point now with my support for the PAS in the selection of the non-legal or lay members. By and large this has been accepted by the Dáil. It is what is in the Bill now. I do not intend to unwind this, not least because I believe, as I have stated on numerous occasions, that PAS simply is the proper process to follow.

I note that Senator Bacik's subsection (2) addresses the knowledge and experience criteria deemed relevant. Much work has been done on this aspect in the Dáil. I cannot see an improvement to that here, but it is good to see much of what is in the Bill also reflected here. Section 12 also makes provision for gender equality and diversity objectives in the selection of lay members and, therefore, I will not go along with Senator Bacik's amendment.

Government amendment No. 15 proposes to delete "13 members" and substitute "17 members"", and amendment No. 21 proposes to delete "6 lay persons" and substitute "7 lay persons" under section 12. They form are a composite proposal and they are identical to Dáil Report Stage amendments Nos. 8 and 14. I explained in this House two weeks ago on Second Stage that I would table these amendments relating to the commission's numbers and composition and I explained why. The commission's composition in the Bill, as passed by the Dáil, is as follows: the lay chair, the Chief Justice, the President of the Court of Appeal, the President of the High Court, the President of the District Court, the President of the Circuit Court, the Attorney General, a nominee of the Irish Human Rights and Equality Commission, a nominee of the Law Society, a nominee of the Bar Council and six non-legal or lay members. That is a total of 16 and there is no lay majority.

However, as I explained on Second Stage, due to a procedural difficulty on Report Stage in the Dáil and a ruling from the Ceann Comhairle on the matter, a number of amendments could not be moved to give full effect to the Government's position with respect to the composition of the commission. Specifically, further to a vote on Report Stage, amendment No. 8, having been lost on 22 May, and an additional three members having been added to the commission to bring the membership number to 16, the Ceann Comhairle ruled on the next day, 23 May, that Report Stage amendment No. 14 could not be moved but that the consequent anomaly arising in the text could be addressed in the Seanad. Due to the defeat of my amendment No. 8 on Report Stage, the number of members is referred to in section 10 as 13, so clearly, we have an anomaly here and we need to rectify it. I indicated on Second Stage that I would do so, so amendment No. 15 provides for the number of commission members as stipulated to change from 13 to 17. I am required to change it to 17 to make way for an additional non-legal, non-judicial or lay member, which is the subject of amendment No. 21, which increases the number of lay members from six to seven to ensure a lay majority in accordance with the programme for Government. The effect of these amendments, in summary, therefore, is to set the commission membership at 17 and to ensure, by increasing the number of lay members by one, that we have a lay majority of one.

It is critically important to get the balance of the commission members right. The effect of amendments Nos. 15 and 21 together achieve this. I make no apologies for the net effect of these amendments, which secure Government policy in this area. I indicated on Second Stage that we are moving on substantially from the position created back in the mid-1990s, when the JAAB process was first conceived. This was the first time the Government function in the matter was supplemented by an independent element of the process and it was the first opening to any scrutiny of the process. At the time it was a real advance and a real innovation. The modern justice system now operates in a different administrative environment. More transparent, more participative approaches are clear in the matter of public policy decision-making in models not only here, but also on the international stage. This marks out our approach to having a strong, non-legal, non-judicial or lay representation reflecting today's governance and participation models and public policy decision-making. It is important that we endeavour to get the balance right between different contributions and interests.

On the matter of balance, a significant change in the Bill, as passed by the Dáil, was to provide for the membership of all four court presidents as well as the Chief Justice on the commission. This is by way of my amendment on Report Stage. This approach fully recognises the need to ensure our senior judges - all five presidents - play the strong, critical, expert and experienced role they have on these matters, and the Bill allows for this. We have struck a good balance in this regard. We have judicial involvement, lay involvement, the Attorney General, the Bar Council's representative and the Law Society's input. The inclusion in the membership, following on the Dáil work on the Bill, of a nominee of the Irish Human Rights and Equality Commission is also a positive.

I said on Second Stage and I repeat here that my position is clear: the Government has set out to ensure that the commission will have a lay chair and a lay majority, but balanced by a substantial judicial presence and by the presence of the Attorney General and a representative of both arms of the legal profession. The individuals and expertise needed to continue to professionalise the selection of excellent judges will be there with its own strong voice at this commission, including the experience, expertise and wisdom of the Chief Justice himself or herself and other senior members of the Judiciary, so I put forward my own amendments.

I will address Senators McDowell, Boyhan and Craughwell briefly on amendment No. 16. The amendment lays clear the thinking of the Senators tabling it as to what their concept of the leadership of the commission would be. It is the practice that the Chief Justice has been the chairperson of the JAAB. I made it clear earlier that we are moving to a more modern approach to these matters. We will have a commission with a significant remit and its own resources. We will have members of the commission who, according to Senator McDowell, will be busy and will have an onerous workload. In this context, and to ensure that lay representation has a real meaning in this environment, similar to steps taken in England, Wales and Scotland, it is time to move to a stronger non-judicial, non-legal model with leadership of a suitably qualified layperson. The Bill stipulates the qualifications, the process and the qualities required for the leadership of this commission by an experienced, expert, non-judicial, non-legal person working closely with the Chief Justice and other members of the Judiciary. The Chief Justice will lead the judicial team on the commission with the strongest possible input of senior judges - all of whom are court presidents.

These are important amendments. A number of Senators representing different groups and none have tabled their own variations. We have been over this ground a good deal. I am happy to listen to the submissions of Senators but I am reluctant to accept any amendments that deviate from the framework I have put forward in respect of the new commission: 17 members; a balance between legal and judicial and lay experts bringing their own experience to this important commission; and a role for the PAS in selecting the chair, but that chair being a non-legal and non-judicial layperson. I am not minded to deviate from that. However, having regard to what I said about the balance, as this important legislation enters its final Stages in the Houses next week, it is important we have legislation that is constitutionally robust, legally sound and workable in ensuring the commission can carry out the duties that will be assigned to it under the legislation.