James Browne (Wexford, Fianna Fail) | Oireachtas source

Amendment No. 2 relates to the Long Title of the Bill, which gives a synopsis of what the Bill proposes to do and the legislation it proposes to amend. The amendment provides for the deletion of an element of the Long Title referring to the recommendation of the Group of States against Corruption, GRECO, of the European Council on the system of selection, recommendation and promotion of judges and the recommendation of the Committee of Ministers to member states on judges. Those recommendations are reflected in the content of the Bill, particularly in sections 47, 48, 51 and 52, which also reflect the engagement over a considerable period in consultations about the new procedures with both the European Commission in the context of its rule of law reports and GRECO in its review of member states.

A significant concern of the European institutions is the level of discretion a member state government might have in regard to a body with an advisory or recommending function in respect of judicial appointments. The European Court of Justice, ECJ, has made it clear in rulings that an obligation under the rule of law, as it operates in the EU, is the maintenance and enhancing of the impartiality and independence of the courts in member states. The ECJ has taken the view that because national courts, including the courts in Ireland, must implement and adjudicate on various fields of EU law, the process of appointment of judges to those courts must ensure the effective judicial protection of individual rights.

The measures in this Bill will strengthen and enhance those procedures. We must continue to safeguard the integrity of the judicial selection process in Ireland and the independence of the Judiciary. The extent of the discretion the Government will have, including on the number of recommendations made, was prepared following careful legal consideration of the relevant Committee of Ministers recommendations and the emerging jurisprudence of the ECJ and of the Constitution. A power of the Government under the Constitution to appoint a person who is not recommended by an independent advisory body is not consistent with the requirements of the rule of law in the European Union. The Minister has been advised to that effect and the Government agrees with that position. To put it another way, the possibility that the Government would appoint a person who was not recommended by an independent body would be contrary to the rule of law. The Minister has been advised that the provisions in the Bill do not compromise or impede in any way the Government power or in any way invalidate the Executive function under the Constitution to advise the President on the appointment of judges, including in circumstances where only one or two persons can be recommended. This element of the Long Title has been included as being specifically in line with the advices of the Attorney General. Consequently, I am not in favour of the amendment.