Written answers

Tuesday, 3 July 2018

Department of Justice and Equality

Judicial Appointments

Photo of John LahartJohn Lahart (Dublin South West, Fianna Fail)
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222. To ask the Tánaiste and Minister for Justice and Equality to outline his views on whether the model being proposed in respect of judicial appointments is not in line with European standards; and if he will make a statement on the matter. [28867/18]

Photo of John LahartJohn Lahart (Dublin South West, Fianna Fail)
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223. To ask the Tánaiste and Minister for Justice and Equality if he will report on the dealings with an organisation (details supplied) on the Judicial Appointments Commission Bill 2017; and if he will make a statement on the matter. [28868/18]

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I propose to take Questions Nos. 222 and 223 together.

In its 2014 Report on Ireland, GRECO carried out an analysis of the existing Judicial Appointments Advisory Board mechanisms established under the Courts and Courts Officers Act 1995 and recommended “that the current system for selection, recruitment, promotion and transfers of judges be reviewed with a view to target the appointments to the most qualified and suitable candidates in a transparent way, without improper influence from the executive/political powers.”

The then Minister for Justice had initiated a public consultation process in late 2013/early 2014 with a view to receiving submissions from a wide range of stakeholders in order to assist in the preparation of reforming legislation in the judicial appointments area. Included in the submissions received was a 97 page submission from a specially-constituted committee of the judiciary.

Following a commitment in the Programme for Government 2016 regarding a new Judicial Appointments Commission with an independent chair and lay majority, and taking into account the submissions received, a Scheme of a Bill was published in December 2016 and underwent pre-legislative scrutiny in January 2017. The Scheme, significantly modified following issues which arose in the pre-legislative process, was published as a Bill on 30th May 2017 and has since been passed by Dáil Éireann and is awaiting Committee Stage in the other House which is scheduled today.

GRECO recently produced a Fourth Round Evaluation Draft Interim Compliance Report in relation to Ireland on 11 June 2018 for adoption at the GRECO 80th Plenary meeting held in Strasbourg on 18-22 June. This Report had been produced in earlier draft in 2017 and Ireland had been given the opportunity to comment on its conclusions. In relation to the Judicial Appointments Bill that report concluded that the 2014 GRECO recommendation in relation to judicial appointments legislation remained unimplemented, despite a formal Bill having been published and advanced through the Houses of the Oireachtas. GRECO had also received correspondence from the Irish Judiciary which was critical of the Judicial Appointments Bill both in terms of their view that there had not been adequate consultation in relation to the Bill and their consistent opposition to the proposed composition of the new Commission as regards the appointment of a lay chairperson and lay majority and the number of judges on the Commission. I very much welcome the fact that the Judiciary were in a position to express their views independently to GRECO and I understand that GRECO themselves also welcomed this.

GRECO, in this draft compliance report, expressed significant concerns regarding the proposed composition of the new Commission, in particular that a minority of judges and a strong lay representation (including the chairperson), is not in line with European standards. This conclusion was based on a Recommendation of the Council of Europe from 2010, adopted by the Committee of Ministers of the Council of Europe in 2012, which among other things recommended a judicial appointments body ‘drawn in substantial part from the judiciary’.

My senior officials attended the GRECO plenary meeting in Strasbourg on 18-22 June and explained that Ireland would strongly question a view that the presence of the Chief Justice (as head of the Supreme Court) and the four other Presidents of Courts on the new Commission is anything other than a body ‘drawn in substantial part from the judiciary.’ It was also explained that Ireland respectfully disagrees with the suggestion in the Report that Ireland is not in line with European standards in this regard since the Council of Europe Recommendation relied on does not equate the term ‘substantial part’ to a majority of judges or, indeed, half of the membership of such a body. It was also pointed out that the 2010 Recommendation itself specifies, in relation to countries which have judicial appointments bodies where the body both selects and appoints judges, that those bodies should be made up ‘at least half’ of judges, thus not specifying a majority even in that case. It was also pointed out to the GRECO meeting that the 2010 Recommendation of the Council of Europe also sets specifically that the membership of judicial selection authorities should ensure the widest possible representation and that this is one of the reasons why the Judicial Appointments Commission Bill 2017 provides for a large cohort of lay members, carefully and independently selected according to very specific skills and experience criteria, by the Public Appointments Service. I understand that, following that meeting, GRECO has incorporated amendments to the Interim Compliance Report.

Finally I might also point out, as was indicated to GRECO, that there are no internationally binding norms in relation to the composition of judicial selection bodies. Other recommendations have been made or formal views expressed in this area including in the ENCJ (European Network of Councils for the Judiciary) Dublin Declaration (2012) which stated that: “The procedures for the recruitment, selection or (where relevant) promotion of members of the judiciary ought to placed in the hands of a body independent of government in which a relevant number of members of the judiciary are directly involved and that the membership of this body should comprise a majority of individuals independent of government influence.”

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