Ivana Bacik (Independent) | Oireachtas source

I would like to welcome the Minister to the House and to express my own views on section 10, which we are currently debating. This is a critical section of the Bill as it deals with the membership of the commission. It is therefore central to the purpose of the Bill, as is evident from the contributions of my colleagues on it. This section came to us in an internally incoherent fashion with the numbers stated for membership of the commission at odds with the numbers of persons actually specified. I know the amendments passed by the House have resolved that to some extent whereby we now have a 17-member commission.

I have a preliminary question for the Minister about that because clearly it was not the number initially envisaged by the Government in its initial setting out of the commission's membership. We have heard from the Attorney General as to the state of the legislation being a dog's dinner due to the way in which it had been dealt with in the Dáil and these inconsistencies we saw in it. How workable would a 17-member commission be, given it was not what was originally anticipated and the framework set out in section 10 of the Bill was envisaged for a smaller number of persons on the commission? I wonder how it will work in practice. Why could an approach not have been taken similar to that we put forward in our amendment No. 14, instead? I have withdrawn that amendment with a view to bringing it back on Report Stage but it suggested that the non-judicial members of the commission should be appointed by specific bodies such as the Citizens Information Board, the Free Legal Advice Centres or the Irish Human Rights and Equality Commission and that, therefore, each individual member would have brought with him or her a particular expertise and a particular experience which I argue would be relevant for the workings of a commission such as this.I wonder why that approach was not taken, given that a larger group of people will now be appointed under section 12 and will comprise a sizeable group on the commission, although not a majority as it will now have 17 members.

Others have spoken about the GRECO report, which has now been published. I should stress that last week, I received a copy of the original report from a journalist and not directly from the Government. Senator Clifford-Lee has read from paragraph 35 of the version of the GRECO report we now have. The paragraph in question specifically addresses section 10 of this Bill, which deals with the composition of the appointments commission. I read passages from an earlier version of the GRECO report into the record of the House last week. It is interesting to note that paragraph 35 of that version of the report was somewhat different from paragraph 35 of the apparently final version, which we now have. In both versions, paragraph 35 starts with the same sentence:

GRECO has significant concerns about the composition of an appointments commission as proposed in the Judicial Appointments 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 is interesting to note that there seems to be just one difference between the two versions of paragraph 35 of the GRECO report. The original version, to which I referred in the House last week, stated that "this move is not in line with European standards", whereas the current version states that "GRECO questions if this move is in line with European standards". I notice that the Minister is nodding. I presume he and his officials are well aware of this small change, not in substance but in emphasis, in the wording of paragraph 35. The Minister said last week that the Department of Justice and Equality and GRECO were in negotiations - that may not have been the word he used - on the final text of the report. I see the Minister nodding again. One presumes that some negotiation led to that small change in emphasis in paragraph 35. Can the Minister say any more about that change in emphasis? GRECO was initially stating that the proposal in this Bill was "not in line with European standards", but now it is merely questioning whether it is in line with European standards.

Notwithstanding the small change I have mentioned, it seems to me that GRECO is still as critical of section 10 as it was in the previous version of the report. According to the current version of the report:

GRECO questions if this move is in line with European standards which, in situations where final judicial appointments are taken by the executive [as here, obviously, under the Constitution], calls for an independent authority drawn in substantial part from the judiciary to be authorised to make recommendations or opinions prior to such appointments.

It seems to me that the sense of it is still the same. The report continues:

GRECO also recalls its own position, as clearly expressed in the Evaluation Report (para. 132), that the composition of the JAAB (consisting of a majority of judges and chaired by the Chief Justice) was considered suitable for the selection procedure.

I referred on Second Stage to the view that if the composition of the Judicial Appointments Advisory Board had been tweaked and its powers had been strengthened, this would have answered many people's concerns about the need for the reform of judicial appointments.

Senator McDowell mentioned Dr. Jennifer Carroll MacNeill, whom the Minister knows well. She has done a great deal of research into this matter and has published an excellent book on the Judiciary. From memory, Dr. Carroll MacNeill's view was that the Judicial Appointments Advisory Board could have significantly improved its own procedures within the powers conferred on it. That would have been one way to ensure some reform of the appointments procedures. This significant perspective appears to be shared by GRECO. In paragraph 37 of the current version of its report, GRECO "concludes that recommendation vii [relating to the appointment of judges] remains not implemented". That is a serious conclusion. Paragraph 55, which is in the section of the report setting out GRECO's overall conclusions, reads:

GRECO notes that the Judicial Appointments Bill 2017 is subject to much controversy and it appears questionable whether it is in line with European standards aimed at securing judicial independence in respect of appointments and promotion of judges. GRECO urges the authorities to continue their efforts to reform the judiciary, as indicated in the Evaluation Report, and to carry this out in close co-operation with the judiciary.

Previous speakers referred to the concerns of GRECO regarding the lack of close co-operation or consultation with the Judiciary that the Government suggested had taken place when the Bill was being prepared. That is set out in the current version of the GRECO report, which indicates concern that the Judiciary had not been consulted in the manner indicated by the Government. Paragraph 30 of the GRECO report states that it directly received information from the judicial authorities to that effect. GRECO has raised serious concerns which are clearly reflected in its conclusions and which do not diverge from the conclusions reached in an earlier draft of the report. This begs the question as to why we did not get the report last week if that was the only change.

It also begs the question as to why there could not have been more negotiation with those of us in opposition who tabled amendments to the Bill, particularly in respect of section 10, in good faith. My amendment No. 14 on behalf of the Labour Party and that tabled by Senator Clifford-Lee on behalf of Fianna Fáil anticipated a compromise on the composition of the commission and had there been more willingness to consult Opposition Members it would have been possible to achieve a section 10 that would not have been so strongly opposed by so many and might have met the concerns clearly expressed by GRECO. Will there be any compromise or willingness to take Opposition comments on board on Report Stage, particularly as Senator Clifford-Lee and I have withdrawn our amendments with a view to resubmitting them for Report Stage such that there might be time for consultation on the final shape of section 10? I have a concern about the functioning of the overall membership of 17 given that it is quite removed from what was originally anticipated by the Government. Will any input be possible on changes to section 10 on Report Stage in light of the fact that we now have the GRECO report, which contains clear criticism and are aware that, apparently, there was a negotiation with GRECO on the wording of section 10 that resulted only in the tiny change to which I have referred?

I have pointed out that I have consistently argued for a form of judicial appointments commission. There are very positive aspects to the Bill, especially the ban on canvassing in section 62 to which I referred on Second Stage. All Senators acknowledge that the Judicial Appointments Advisory Board, JAAB, needed reform and a strengthening of its powers, if not its outright abolition.

It is not helpful that a Minister has launched personalised attacks on Opposition Senators in a newspaper column. I do not intend to personalise anything. Apart from anything else, I do not have a newspaper column in which to retaliate at anyone, so will not personalise my comments. The Minister's approach is unfortunate. It is very easy to mount a populist attack on the Judiciary and judicial appointments. However, it is rather tedious to hear the word "cronyism" consistently being used-----