Seanad debates

Wednesday, 19 December 2018

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)


10:30 am

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael) | Oireachtas source

That is what has been painted yet again by Senator McDowell, but that is not going to happen. It makes for a good debate, and it makes for good drama and effect. While Senator McDowell makes no secret of the fact that he wishes to have a widespread derogation from this legislation and from the commission for members of the superior courts, it is unacceptable to broaden out a commission process in such a way as is envisaged in the amendment. If I go back to my Second Stage speech, for example, either in this House or in the Lower House, I referred to the key policy issues and the developments of this new statutory framework. I want to ensure in the context of the final product that we have the elevation of serving judges, the reduction to three recommendations only, the movement to a lay majority, and the procedural remit of the commission. Those are the fundamentals of the reform.

This is not something that we are doing here within this jurisdiction that is not a common feature of other common law jurisdictions. I refer again to the similarities between what we are doing here to the situation that pertains in Scotland, or in England and Wales, or both. Senator McDowell mentioned the situation 20 years ago. In the run up to the enactment of the JAAB legislation, when the Bill was being debated and when the architecture was being set, a decision was made that the system then, which was an entirely new step, should only extend to the appointment of first-time judges. The onward appointment of a serving judge, be it elevation or promotion was not comprehended at that time. We have now seen developments over two decades since then. We have seen important developments in international practice.

We have seen the genesis of the legislation in the form of a review that was introduced by one of my predecessors, the former Minister, Mr. Shatter. He reviewed the entire system and entered into what was a pretty widespread consultation process. I have not heard anything about that process from Senator McDowell, other than an expression here that this is something that has been foisted on the Oireachtas in a programme for Government commitment in order to satisfy one or a small minority of members of the Cabinet. It is fair to say that even before anything was agreed in the programme for Government that this ship had set sail and did not at any remove seem to attract the type of opposition that we are now seeing, as evidenced by the previous 60 hours debate here. A number of factors were fully examined in the context of that consultation, including the performance to date of the JAAB process, judicial independence and the matter of eligibility and otherwise. It was precisely because of that that a convincing argument was made that there did not appear to be a reasonable or strong case for any longer excluding a second appointment of a judge from an application process or selection process leading to a number of recommendations or a recommendation being made to the Government. That is all it is. Senator McDowell knows that well.


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