James Browne (Wexford, Fianna Fail) | Oireachtas source

Amendment No. 4 is grouped with amendment No. 16. Amendment No. 4 seeks to amend section 9 by replacing it. Section 9 provides for the membership of the commission and provides, in line with the Government programme, that the commission will be chaired by the Chief Justice. It provides for an equal number of lay and judicial members, four of each. The judicial membership comprises the Chief Justice, the President of the Court of Appeal and two nominees of the Judicial Council.Section 12 provides for a more detailed prescription for the nominees of the Judicial Council. New members will be recommended by the Public Appointments Service nominated under section 13. The Attorney General is a non-voting member.

While amendment No. 4 does not change the overall number of commission members, its overall effect would be to replace two laypersons on the commission with two legal professionals. In doing so, the lay members would be consigned to a minority position on the commission. The commission would be comprised of four judges including the Chief Justice, who would be chairing, two legal profession representatives, the Attorney General and just two lay members. That would mean it would have just two lay members out of a total of nine. That is interesting because when compared to the existing mechanism, which we have set out to reform - I refer to the Judicial Appointments Advisory Board, JAAB, arrangement, which has three lay members out of a membership of 11 - it would be a regressive step. The Government could not accept this.

The provisions of the Bill have been very carefully designed to provide a balance of membership on the commission between the judicial members and lay members. Specifically, the amendment proposes that the Law Society of Ireland and the General Council of the Bar of Ireland shall each nominate a practitioner representative, and these will be a practising solicitor or practising barrister along the lines of the current job representation. These are to replace two of the lay members. The Minister decided that a representative of each of the solicitors' practising profession and the barristers' practising profession are not essential to the functioning of the commission. Lay persons will come through a clear, transparent and expert nomination process operated by the Public Appointments Service, which is a tried and trusted process. All the judges on the commission will have been practising barristers and solicitors, as will have been the Attorney General. That is a significant background.

This is my current understanding of what applicants from the respective practitioner fields might bring to the role of judges. They would be able to copper-fasten this applied knowledge by stipulating in section 12 that one of the Judicial Council nominees must have been a practising solicitor and one must have been a practising barrister. The amendment also removes the condition that the Attorney General would be a non-voting member. That provision is important in the context of the existing section 9. It would have the effect of putting the Attorney General in a position whereby his or her vote might be a casting vote. In the context of the suggested amendment, it is just another vote being provided for and has no specific significance given the way the amendment rearranges the membership and then minimises lay involvement. I am not, therefore, in favour of adding new legal practitioner nominees, reducing lay members or providing the Attorney General with a vote, which would be the global effect of the amendment. I am, therefore, not in favour of the amendment.

The Bill in all of its elements, including in particular those relating to the composition of the commission, was drafted on the basis of careful legal consideration of the relevant committee of Ministers, of the recommendations and jurisprudence of the Court of Justice of the European Union, CJEU, and of the Constitution. This is notably the case in its inclusion of a substantial number of judges and an equal number of lay persons along with the Attorney General. This approach will serve to strongly underpin the independence of the Judiciary.

The linked amendment No. 16 proposes to provide in section 14, which deals with the terms and conditions of membership of the commission, that the term of appointment of the nominated legal professionals, whose membership is provided for under the Senators' amendment No. 4, would be three years. For the reasons stated in my argument against replacing section 9 in the manner proposed by the Senators, I cannot accept this consequential amendment either.