Wednesday, 1 February 2017
The Programme for a Partnership Government, we are told, contains the statement:
We will reform the judicial appointments process to ensure it is transparent, fair and credible. We will reduce the number of suitable candidates proposed by the Judicial Appointments Commission for each vacancy to the lowest number advised as constitutionally and legally permissible by the Attorney General, but in any event not more than three candidates to be shortlisted by the Judicial Appointments Commission for any vacancy.
Also, the scheme for the Bill recently published by the Government says:
It is a requirement that Government is in a position to retain a substantive choice as part of the exercise of the executive discretion under Article 35 of the Constitution. The choice that Government must have given its role under the Constitution is satisfied by the provision whereby the Commission recommends three names.
The Constitution gives to the Government, and the Government alone, the right to select, from eligible persons, people who are to be appointed to the Judiciary. That is simple. The Government has the right, for instance, among High Court judges at the moment or Court of Appeal judges, to appoint any of them to the Supreme Court as it considers right. That right cannot be taken away from the Government. It cannot be subject to a process, which seems on the face of it, to deprive the Government of that discretion. There is nothing in law that this House or the other House can do. No Bill or Act can change the situation that if one is eligible to be appointed to the Supreme Court, as a matter of law, the Government is entitled to make the appointment. There is a huge attempt being made to suggest that somehow, by changing the Judicial Appointments Advisory Board, which was to give advice to the Government on the suitability of candidates to a judicial appointments commission with a small shortlist, the Government will be constrained to appoint from the shortlist. It will not and it cannot be.
The other great illusion that has been put forward to the people of Ireland is that it is somehow wrong for the Attorney General, the Minister for justice or the Taoiseach of the day to say, for instance, to an eminent solicitor or barrister, "We believe you should be appointed to the Bench." The procedure has been generally that those people who apply to the Judicial Appointments Advisory Board, if they are approved by the board, are subsequently appointed. On occasion it has happened that people have been appointed without any involvement of the Judicial Appointments Advisory Board, from being in the position of a lay practitioner, to the superior courts. That is the first thing I wanted to say.The second thing that I wanted to say relates to the Minister, Deputy Ross, who has been championing the cause of a lay majority on a judicial appointments advisory commission. According to The Irish Timesof Monday, 21 November 2016, "Mr Ross said the programme for Government sets out a commitment to reform the way judges are selected which would take the process out of the hands of politicians." That is untrue and constitutionally infirm and impermissible. I will not use a term that would involve going further than that, but I will say it is untrue as a proposition of law.
I remind the House that we are talking about a common law system and a common law Judiciary. Ireland is the only state in the common law world in which a government has ever proposed having a lay majority on an advisory board. It is of some significance that such a change has not been proposed in America or anywhere else with a common law system. Under the proposed new scheme, which has not applied heretofore, a judge of the High Court who is willing to become a Supreme Court judge or a Court of Appeal judge is supposed to submit to being interviewed by seven lay people who, in turn, are supposed to look at everybody else and select three people, thereby possibly excluding that judge from first consideration by the Cabinet. This is an attack on a system that has worked extremely well. I do not want to push it any further than to say that this proposal will not produce better candidates for the Judiciary. It will politicise promotions within the Judiciary. This process will discourage many people who would be good judges or good candidates for promotion to a higher court from applying for such positions. This Bill is misconceived.
I remind the House that before he became a Minister, Deputy Ross introduced the Thirty-fourth Amendment of the Constitution (Judicial Appointments) Bill 2013, which proposed that the Government would have no role in the selection of judges. He suggested that this would be done by a committee of the Houses of the Oireachtas. Believe it or not, he proposed from the Opposition benches that Government supporters would have to be in a minority on that committee. Deputy Ross introduced his Bill in 2013 in an effort to depoliticise the appointment of judges, but the Bill in question proposed to hand that responsibility to elected politicians. When he spoke in the Dáil in support of the Bill, he said the Oireachtas committee could debate the merits of individual candidates for the Judiciary. He is now saying as Minister that he wants to take responsibility for the appointment of judges out of the hands of politicians. I suggest that the Government should reconsider carefully whether the scheme of the Bill that has now been published will disimprove the quality of our Judiciary, inhibit people from seeking selection and remove the perfectly reasonable faculty of the Government of the day to select people from among serving High Court judges for appointment to the Court of Appeal and the Supreme Court and without having to go through any process.
I thank Senator McDowell for raising this matter which I am pleased to address on behalf of the Tánaiste, who apologises for not being here today. The Government's general scheme of a judicial appointments commission Bill was the subject of pre-legislative scrutiny, in conjunction with Deputy Jim O’Callaghan’s Bill, at last week's meeting of the Joint Committee on Justice and Equality. The Tánaiste intends to take account of the feedback from that meeting when she introduces improved and elaborated proposals in a Bill that is to be published at an early stage for further discussion and examination by both Houses. The Government's proposals arise in the first instance from policy consideration of the responses to a 2014 public consultation and call for submissions on the need for the existing provisions for eligibility for judicial appointment to be reformed.
A commitment to the establishment of a new judicial appointments commission was made in the 2016 programme for Government and as part of the confidence and supply arrangement between Fianna Fáil and Fine Gael. The design of the Government proposals, which allow for a lay majority of one and a lay chair, will provide for a much-needed critical mass of non-judicial and non-legal people in the selection process and will ensure there is a wider set of expertise and experience among the lay people who will be represented on the commission. It seems there are no difficulties with the lay chair and lay majority concepts in the jurisdictions of England and Wales and Scotland, where judicial procedures have been fully reformed in recent times. In line with a commitment in the programme for Government, the Chief Justice will be a member of the commission. As the most senior member of the Judiciary, the Chief Justice will make a critical and highly influential input into determinations on the suitability of candidates for judicial office. I believe the overall balance proposed by the Government is correct.
No one will disagree that the Judiciary can play an important role and make a hugely significant input in the judicial selection process on the basis of its unique knowledge, skills and experience. The Tánaiste acknowledged this specifically at last week's joint committee discussion. The Government's proposals, which deliver on the commitment in the programme for Government, will reduce from seven to three the minimum number of names the commission will recommend to the Government for appointment. There will be two additional names to correspond with each additional vacancy. As the Senator may have noticed, the Tánaiste said last week that she intends to include in the legislation a prohibition on canvassing, which will prevent any person, candidate, applicant or otherwise from seeking to interfere with or compromise in any way the selection procedures.
It needs to be emphasised that judicial selection is an administrative or non-judicial function, as opposed to a judicial function. The formal function of appointing judges by the President is not one of Presidential discretion, but is to be performed only on the advice of the Government in conformity with Article 13.9 of the Constitution. The current proposal to replace the Judicial Appointments Advisory Board with a modernised Commission will not change anything from a constitutional point of view. It is now a standard international model to have judicial appointments commissions in place to select and recommend candidates, while executives remain responsible for the formal act of appointing judges. Building on the enactment of the Judicial Appointments Advisory Board legislation in 1995, it is clearly a matter for these Houses to consider what should go into legislation to reform the appointments system. It is a matter for the Government and any Member of this or the other House, as the case may be, to propose to the Houses what should be in such legislation.
Nothing in the reforms proposed by the Government impinges on the independence of the Judiciary. Equally, nothing in the proposals could impinge on the constitutional prerogative of the Government to advise the President on appointments. The proposed legislation enhances the independence of the Judiciary in a number of ways, for example, by establishing a body to design and conduct independent and professional selection processes leading to the recommendation to the Government of the names of proposed appointees to judicial office. Engagement with key stakeholders is continuing. Senators will be aware that the establishment or amendment of a judicial selection system through legislation is a matter for the Oireachtas alone. There is no authority other than the Oireachtas on what the new legislative arrangements may be. It is the Government’s prerogative to bring proposals to the Oireachtas for enactment. That is an objective we are determined to realise. We should always acknowledge and value the enduring independence of the Irish Judiciary which has provided a constitutional structure that has enabled this State to withstand enormous political and economic threats to its existence and stability.
While I thank the Minister of State for what he has said, I am increasingly alarmed by the Government's inability to admit that it has a constitutional right to appoint any person who is eligible to be a judge and that this right cannot be compromised by legislation. The words read by the Minister of State skirt around that issue. At least he has indicated some willingness on the part of the Tánaiste to consider refining the scheme of the Bill as published. That is a good thing, whereas the suggestion in the words the Minister of State has given us today that there should be "a prohibition on canvassing" for judicial appointment is an alarming proposition. If somebody wants to be considered by the Government for appointment to the courts, he or she has an entitlement to indicate that to the Government. These Houses have absolutely no right to prevent people from informing the Government of their desire to be appointed to a position. It cannot be criminalised, made unlawful or made an offence. I believe the Government should go back to the drawing board with these proposals. The fundamental question it should ask itself is whether we will have a better Judiciary or a far worse Judiciary if these new proposals are enacted.
We are well over time on this issue. We normally allow eight minutes. We have already taken 12 minutes. I am sure the Senator will have more to say on it - he will have his day in court, so to speak - when the Tánaiste's Bill comes before this House. I ask the Minister of State to speak briefly in conclusion.
The scheme of the new Bill takes full account of the essential constitutional tenet that the appointment of judges is a decision of the Government in the exercise of its executive role, albeit that the actual appointment is undertaken by the President on the advice of the Government. I am aware that the judicial appointments review committee, which is a committee of senior judges, submitted its views on this scheme recently. I understand the Tánaiste intends to meet representatives of the committee soon to discuss the matter further. This might help. I thank the Senator again for bringing this very important matter to the floor of the House today.