Michael McDowell (Independent) | Oireachtas source

I see this absence of a definition. We are expected to approve a lay majority selected by the PAS, and we are not told what the PAS is. We are not told exactly how this nebulous body, the PAS, would constitute a committee to make the selections. It does not seem to be regulated by statute. Is it subject to ministerial direction? Who is it? What is it? We simply do not know.

On in-depth consultation with the Judiciary, it should be noted that as far back as November 2016, Mr. Justice Donal O'Donnell, a member of the Supreme Court, wrote to the then Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, on behalf of himself and a number of judges. In a very telling passage, they said that they recognised the importance and value of significant lay involvement in this process, and that in particular the lay membership provided an additional guarantee of fairness and a restraint on any possible over-narrow technical or professional assessment. These were judges talking to the Government. They said they appreciated there was a current debate about the composition of the board, and that the programme for Government contained a reference to a lay majority, but that provision did not appear to have been the subject of any prior discussion or debate and that the justification for a lay majority, as opposed to lay involvement, had not been articulated. Those words stand equally valid to this day.

The letter went on to say that it appeared that it may have been desired to avoid a process which could be characterised as self-replication by a group of judges and lawyers. I think that is a fair assumption as to what the motivation might be. They said that in the first place, this expressed concern was an anticipated problem rather than an existing or a historical reality, given their experience within the range of views within the Judiciary on any issue unlikely to emerge in fact. They said that, as was discussed, any concerns could be met by having a body composed of equal numbers of lay and judicial members, a member from each branch of the practising profession and a requirement that the group should seek to make its decision by consensus, and that in the event of any contested decision, it would be required to be made by a weighted majority either by number or composed of a minimum number of lay or judicial members, or both.

This was before the text of the Bill was ever published, and it was this Minister who published the Bill and brought forward the heads of the Bill with all the foot-stamping going on about no appointments and the urgency of it. It is the Minister for Justice and Equality who brought forward the text of the Bill. However, the former Minister, Deputy Fitzgerald, received this communication from a senior judge in our Supreme Court which asked where the lay majority idea comes from.If one was overly concerned that lawyers would all gang up, surely it could be provided that in any contested decision, a weighted majority with a minimum content from both sides of the matter, should be the deciding majority.

There is so much sense in this, yet the point the judge made in the letter was that there had been no articulation of any reason as to why there should be a lay majority. He looks to the possible reason that it would be to stop judges engaging in self-replication and lawyers and judges getting together to make sure that only people of a certain type become judges. He then points out a very reasonable way to ensure that that does not happen. There would be an equal number of lay people and judges and for a decision to be made, there would have to be a working majority which would indicative of both elements of the commission in contested cases. No real answer was ever given to that suggestion.

That happened in November 2016. In June 2016, the Association of Judges in Ireland, AJI, had a meeting with the then Tánaiste, Deputy Frances Fitzgerald, and the Attorney General. The note of that meeting in the Department said that the AJI also had concerns about the process of selecting the lay members and it was necessary to understand that lay members would have vested interests, such as promoting rights of victims, civil liberties, human rights, etc. It recommended that the majority of the commission should comprise lawyers and judges.

Then there was a meeting of the Tánaiste, the Attorney General and officials with Justices O'Donnell, Mary Finlay Geoghegan and George Birmingham. It noted that a key issue for the judges was the type of lay member who might come forward under the proposal, referring to the background of lay members in the neighbouring jurisdiction as being very eminent, and that people would want to shape the Judiciary and would have an agenda to do that. The Judiciary underlined its concern about the wrong motivation that a lay member could have if the bar is not set right. In particular, the judges indicated that the Bill should not exclude people who were formerly judges or practitioners. It should not exclude current practitioners who work on behalf of precisely the type of body that might provide an excellent lay perspective. This goes back to what Senator Bacik was saying about FLAC, for instance.

There was a note of a meeting of 2 March 2017 between the Taoiseach, the then Tánaiste, the Attorney General, and Justices O'Donnell, Mary Finlay Geoghegan and George Birmingham. That note says that a number of points of concern regarding the proposed new model for judicial appointments were made by the Judiciary representatives, including the need for legislation to be based in a comprehensive research process and on good and bad lessons from other countries; that the system proposed with a lay majority and complex processes would deter applicants of the required calibre from putting themselves forward; that a system that might deter the right applicants is damaging to the administration of justice-----