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Judicial Appointments Commission Bill 2017

Second Stage speech by Charlie Flanagan TD, Minister for Justice and Equality

20 June 2018

 

A Cathaoirleach / Leas Cathaoirleach,

 

I move that the Bill be read a second time.

 

Introduction

 

I should say at the outset that Senators I have no doubt will be aware that the Bill, which had its Second stage reading in the Dáil last summer has been thoroughly debated and quite comprehensively amended during its passage through the Lower House.  Due mainly to procedural challenges at Report Stage a significant number of official amendments could not be moved and I will be tabling these, mostly technical provisions, before Senators at the appropriate stage.  Let me be clear however that there are some substantive changes that I want to reinstate in the Bill which were an integral part of the Bill as published.  I don’t wish in any way to gainsay the will of the Dáil in this matter but there are some critical issues that the Government is committed to legislate for not least the provisions of a lay majority on the Commission.  These are proposals which I want this House to have the opportunity to consider in its own right.  I will return to that and those other issues presently.  

 

The Bill provides for a number of very substantial changes which I believe represent a defining reform, providing for a modern, comprehensive and fit for purpose system to deal with judicial appointments in the State.   These are innovative reforms of  the judicial appointments process  that has been operating for the past 20 years or so. But the Bill also sets out a progressive and forward-looking approach to allow for ongoing improvement and updating of the appointments arrangements that best suit the justice and social and economic environments as they evolve.  

 

Public Consultations

At the very end of 2013 and going into 2014,    the then Justice Minister set about bringing our system of judicial appointments in line with international best practice.  An innovation in this area was to engage in public consultations and to get the views of stakeholders as to what should the model of judicial appointments look like so as to best cater for the needs of the judicial and courts processes in the 21st century. Themes around that consultations process were:

 

 

The Bill reflects the outcome of that process and the research and policy analysis which followed it in the Department of Justice. Reform of course does not imply that the present system has impaired the quality, diligence and integrity of the judicial function which has contributed greatly to the success of our modern democracy.  I don’t think anyone would argue that.  With this Bill, however, I am saying that the appointment system needs to be expanded, modernised and resourced. 

 

Judicial Appointments Advisory Board (JAAB)

The provisions of the 1995 Court and Court Officers Act as amended, were at the time very significant,  introducing a new independent element to the judicial appointments process.   Article 35.1 of the Constitution provides that judges are appointed by the President and under Article 13.9 such power is exercisable and performable only on the advice of the Government.  Nothing in the Bill adds to or takes away from the position, clearly.  At the same time the onus is on us to continuously assess the need to update our legislative arrangements and in this case the appointments system to ensure that it is  fit for purpose.    I think we are all agreed that it is timely now for the Oireachtas to legislate for the systems and procedures that are needed to support decision making in the context of these  Constitutional functions.

 

It was very progressive in 1995 to bring lay people into the role of identifying persons suitable for appointment to judicial office and to bring in a more consultative and transparent approach to the process of appointing judges.  From this standpoint, after 20 years and more of this experience, notwithstanding the outstanding work of the Judicial Appointments Advisory Board and the high calibre and quality of our judicial appointees,  the arrangements now seem very  limited in a number of respects and the Bill before the House today brings the system to a new level of openness and effectiveness. 

 

All judicial appointments encompassed

The JAAB deals with first-time judicial appointments only, and these procedures are  concerned with just one dimension of the judicial appointment process.  The elevation of serving judges from one court to another is specifically excluded from the remit of the JAAB. So therefore there is in effect no system at all , other than the Constitutional process, in place to deal with this category of appointments, and these of course are very significant appointments.  We have been fortunate to be in a position to appoint the highest calibre of exceptional individuals.   However, it  not good enough in this Government’s view that in this day and age there is no statutory process in place to address perhaps the most important appointments to any office in the State;  good governance, transparency and accountability demand that we update our arrangements in the manner envisaged in the Bill before the house today.   So the new Commission will have a remit under the Bill to deal with all appointments.  That is a big advance and improvement, compared to what we have now.  This approach is in accordance with the views of the judiciary.

 

Senior judicial appointments

Senators will be aware that in the Bill as published the Government’s intention was to provide that the appointments process for the three most senior judicial posts - that of Chief Justice, President of the Court of Appeal and the President of the High Court – would   be subject to a variation of the general process.  That variation was broadly similar to the arrangements deployed in relation to the recent filling of both Chief Justice and President of the Court of Appeal posts.  However a statutory basis for that did not find favour in the Dáil and the Bill was amended at Committee to provide in effect that the regular process for applications generally under the Bill will apply to these 3 most senior posts.  I am considering how best to approach this matter and we may have the opportunity to discuss at a later stage of the Bill before this House. 

 

3 names to be recommended

Where JAAB has a role under the current arrangements in recommending persons  for appointment it must recommend at least seven persons, if it can, to the Minister.  Again, the Bill before the House changes that radically; the Bill that the Government published provided that 3 names should be provided by the Commission if it is possible in respect of a judicial vacancy.  Where there are for example 2 vacancies the Bill provides that 5 names would be provided by the Commission.  The new independent Commission therefore will have a much more definitive and meaningful selection and recommendation function than currently pertains with JAAB.    I must say that a change made to the Bill in the Dáil in this respect enhances the determinative nature of the Commission’s work; section 40 requires the Commission to rank those names in the Commission’s order of preference, and again I have been advised that this is constitutionally permissible.  Once again, there was a strong view in the 2014 submissions, including that of the judiciary, that the slate of candidates presented to Government needs to be reduced significantly.

 

Director and Office

No dedicated resource was assigned in the legislation to support the JAAB and over the years, the Courts Service has provided the necessary financial, technical and administrative support to the Board, and in passing, I want to acknowledge this invaluable contribution to the process.  However the Government envisages the Commission having a substantial role, more substantial than JAAB not just in recommending persons for all judicial positions but, as I will describe in a moment, in longer-term development of procedures for appointment.  I am wholly convinced that the Commission’s work should be adequately supported – this is too important an area to leave with an undetermined resource.  I am providing in Part 5 of the Bill for a Commission Office and Director, it will cost about €500,000.  This will not be a quango, but it will be a lean, professional and independent organisation with a small but sufficient resource base to allow it clearly to stand on its own feet.     So three elements I have just mentioned – firstly the expansion of the recommendation system to every single judicial post in the State, secondly the move to 3 recommendations in order of preference and thirdly , a proper resource with a  modest budget -  these reforms alone are very significant indeed. And they have been overlooked in a rush to criticism of the Bill in some quarters on the basis of other elements in it, and I will address these too.

 

Lay membership   

It is well over 20 years now since the JAAB process was conceived in legislation.  It was the first time that the Government function in the matter was supplemented by an independent element in the process and it was the first opening to any scrutiny of the process and, at the time, it was an important move forward. The justice system now operates in a modern administrative environment – more transparent and participative approaches are apparent in public policy decision making models both here and internationally.    In this context the new Commission will have a strong lay representation - reflecting today’s governance and participation models of public policy decision-making.  This legislation is largely about getting the balance right as between different contributions and interests.

 

Senators will be aware that there is a discrepancy, effectively technical in nature, in the Bill as regards the number of members on the Commission.  The Bill as passed by the Dáil, in section 10 provides that the Commission shall have 13 members.  However the section otherwise goes on to provide for the membership of 16 persons.  This arose as a result of an amendment being passed by the Dáil that provided for three additional members to the 13 already provided for, despite the amendment to change the number upwards from 13 not having passed.  The Ceann Comhairle explained in detail how this came about and he made a ruling as to how several other amendments in my name could not subsequently be moved.  My intention was to provide for the membership of one further lay person, subject to changing the stipulated number from 13 to 17, so that the Commission will have a full complement and so provide for a lay majority.  It is now my intention to present those amendments to this House and to provide for technical and consequential matters, as had been my intention in the Dáil.  

 

A very significant change in the Bill as passed by the Dáil was to provide for the membership of all four court presidents as well as the Chief justice on the Commission.   That is somewhat different from the published Government position which accommodated these office holders but within a different committee arrangement, but I fully accept that what we have now is an improvement in this regard. We have a good balance of judicial involvement and lay involvement along with the Attorney General’s and Bar Council’s and Law Society’s inputs.   I am very pleased that the Dáil agreed and accepted the new role for the Public Appointments Service in selecting the lay members and the lay chairperson based on the very important criteria set out in section 12.     The inclusion in the membership following on from the Dáil work on the Bill of a nominee of the Irish Human Rights and Equality Commission is a real positive.

 

Judiciary

The Government has consulted with the representatives of the Judicial Appointments Review Committee which is the senior judiciary grouping tasked with contributing to the change process.  I have met with the Chief Justice and all Court Presidents and it has to be said that very substantial and significant elements of the legislation are consistent with the views of the judiciary.  My predecessor and indeed the former Taoiseach and Attorney General also met with the judiciary and listened carefully to their express opposition to aspects of it and explained the Government’s policy position to them. Of course Senators will no doubt be fully aware that the judiciary is opposed to having a majority of lay persons on the Commission, and indeed, a lay chairperson presiding over a Commission.  While I am grateful for the very substantial contribution the senior judiciary has made in consultations, the Government however does not agree with this and I am pleased that a lay chairperson is provided for, following the passing of the Bill by the Dáil.

 

The Government’s policy position is clear: the Commission is proposed to have a lay chair and a lay majority but balanced by a very substantial judicial presence and by the presence of the AG and the representatives of the legal professions.  Every skill and brand of experience which will be necessary to continue and professionalise the selection of excellent judges will be there with its own voice at this Commission and there is little doubt that the experience, wisdom and expertise of the Chief Justice and other senior judiciary will, and should,  be a first port of call in any deliberation of the Commission.

 

Part 8

With regard to Part 8 of the Bill, this is breaking new ground I believe and is important.  The Commission - working through a Procedures Committee established under section 16  -  will be tasked with a remit to determine, in a consultative process, new procedures for judicial selection and  the skills and attributes required for the job.  These procedures will reflect best practice professional selection methods and processes.  The Procedures Committee will be required to prepare a statement for approval by the Commission setting out the procedures for selecting persons for appointment and a statement of requisite skills and attributes that a person must possess to be suitable for selection.

 

Under Part 8, the Committee will also have the ongoing role of reviewing the effectiveness of the selection system as well as the effectiveness of the functions assigned to the Commission under the Bill.     It will be required, two years after the commencement of the provisions, to prepare a report which may include any recommendation relating to the implementation of the Act.  The Commission will be required to submit the report and recommendations together with any observations it may have to the Minister.  The work of the Procedures Committee will not, as has been suggested in some quarters, be the work of some over-elaborated or engorged element of bureaucracy, but will deliver to the new Commission a simple and specialised mechanism to design modern selection processes into judicial selection – processes and standards similar to those which are in play for all senior public appointments in Ireland and which are already in play in judicial selection processes in the neighbouring island and elsewhere.

 

Openness

The new system of appointments will be open and transparent and some examples from the Bill illustrate this.  The new Commission Chairperson will be accountable to an Oireachtas Committee under section 22 for the general administration of the Commission as envisaged in the Government programme.  Under section 21, the Director will be required to forward reports to the Public Accounts Committee regarding the Commission accounting transactions and its economy and efficiency among other matters.  The Commission will be required to report annually to the Minister on its activities and the Minister shall have the reports laid before the Houses.  The Minister will also has the power to request a report by the Commission on any matter relating to its functions.   These elements together are a progressive reform brining the future appointments processes to a new level of accountability.  

 

Further, each of the Houses of the Oireachtas must approve by resolution, if they so choose, an appointment by the Minister of the lay members and lay chairperson of the Commission.  Under section 49 the Minister will be required to make an annual statement to the Houses relating to appointments to judicial office made during the year and this will include a statement that the appointment was recommended under the new arrangements if that be the case.  A similar statement will be required of the Minister in the form of a notice to be published in IRIS OIFIGIUL in respect of all appointments.  I will be tabling amendments in respect of these provisions as, given legal advice I have , I am concerned about the appropriateness of subsections 48 (2) and 49 (2)  as amended in Dáil Committee, concerning the explanation of decisions of Government with regard to appointments.

 

Merit

The Bill in section 7 focuses the recommendation and selection process on merit as the   criterion to underpin the selection and recommendation of persons for appointment.  It is an important statement of intent that merit is the basis on which all recommendations will be made.   So merit is front and centre as the determining factor in selection and recommendation. But section 7 is important too in saying that subject to this criterion, regard shall be had to objectives that the membership of the judiciary should comprise equal numbers of men and women, that membership of the judiciary should to the extent feasible and practicable, reflect the diversity within the population as a whole and that the membership of the judiciary should include persons with a proficiency in the Irish language.   Let me point out to this House, once again, that putting merit at the top of the agenda was also something which the judiciary (and others) also highlighted in their submission in 2014.

 

Eligibility

The Bill extends eligibility arrangements to District Court judges in terms of eligibility for appointment to the High Court and to legal academics for appointment, and these matters are addressed in section 33.   This has been welcomed virtually all round as has the other change concerning  District judges under section 59 setting at 70 their retirement age which is the same as judges of other courts.

 

Review

 

Finally, I want to mention the important provision in section 5 that the Minister shall review the working of the Act and report in the matter to the Houses of the Oireachtas.  Senators , I am putting this Bill forward as a genuine and quite fundamental reform of our judicial appointments system so as to ensure to the greatest extent we can that the quality of our judicial system is maintained to all of society’s benefit.