Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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47. To ask the Tánaiste and Minister for Justice and Equality if criticism relating to judicial independence levelled against the State in the recent report by the Group of States against Corruption will be addressed; and if he will make a statement on the matter. [29634/18]

Charles Flanagan (Laois, Fine Gael)
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The Deputy will be aware that I have already answered written questions on related matters in this House on the 3rd of July. GRECO recently produced a Fourth Round Evaluation Interim Compliance Report in relation to Ireland, on 22 June 2018 following the GRECO 80th Plenary meeting held in Strasbourg on 18-22 June. This Report had been produced in earlier drafts and we had been given the opportunity to comment on its draft conclusions, including by way of participating in the consideration of the report at the recent plenary.  The judiciary also furnished their observations directly to GRECO on the matter.  GRECO will publish the report following the authorisation of the Irish Government and my intention, subject to Government approval, is that this would happen today.

The recent Report specifically welcomed developments in relation to the Judicial Council Bill, which is at present in the course of passage through the other House and will be coming before this House in the autumn and referred to the role of the new Council in underpinning the independence of the judiciary

In relation to the Judicial Appointments Bill,  GRECO had expressed significant concerns regarding the proposed composition, in particular the minority of judges and a strong lay representation (including the chairperson). They had expressed a view in an earlier version of the report that in this regard the Bill is not in line with European standards.  In the report which will shortly be published, they removed their assertion that the Bill is not in line with European standards, instead questioning whether it is in line with European standards.  The GRECO views in this area are 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’.  GRECO states that the Bill, as far as the composition of the new body is concerned needs to reflect European standards, aiming at securing judicial independence, through more substantial judicial representation in  the overall composition. GRECO also refers to the need to limit the potential risks of improper influence from the executive/political power over the appointment process to the judiciary. Again, as the Deputy will be aware, amendments which I proposed to the Dáil during the Report Stage had the effect of ensuring that the Presidents of the Circuit and District Courts were included in the membership of the Commission.

Senior officials from my Department attended the GRECO plenary meeting in Strasbourg on 18-22 June and questioned the 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.’  The proposition that Ireland is not in line with European standards was also questioned 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 Recommendation itself specifies, in relation to countries which have judicial appointments bodies where the body does both selection and appointment of 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.

There are no internationally binding norms in relation to the composition of judicial selection bodies. Other views have also been formally 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.”

I have already pointed out in the other House in recent days that the Judicial Appointments Bill in my view actually strengthens judicial independence by, among other things:

- providing for areduced number of names of nominees for judicial appointment to go to Government

- the inclusion of all judicial appointments in the new process including promotions of judges from one court to another which are at present done outside the existing Judicial Appointments Advisory Board

- reducing the role of Government in selection of the lay chairperson and members of the Commission which will now be done by PAS with PAS nominating the exact number of required appointees and the appointments being made only following affirming resolutions of the Houses of the Oireachtas

- the stipulation in the Bill that all appointments will be on merit; and

- the professionalization of the judicial selection process which will be delivered by the Bill. 

GRECO also refers in the report to the matter of judicial independence and to its recommendation in its Fourth Round evaluation that an appropriate structure be established within which questions concerning constitutional safeguards of the judiciary in connection with employment conditions are to be examined.  GRECO makes reference in this context to links to the establishment of the Judicial Council and maintaining the high levels of independence of the judiciary and guaranteeing the respect of constitutional principles for judges. The Judicial Council Bill will shortly be progressing to Committee Stage in the Seanad.