Check against delivery
General Scheme of Judicial Appointments Commission Bill 2016
Pre-legislative Scrutiny meeting of the Dáil Committee
25 January 2017
Opening Statement by the Tánaiste and Minister for Justice and Equality, Frances Fitzgerald TD
Good morning Deputies.
I firstly want to thank the Cathaoirleach of the Committee Deputy O'Caolain and members for the early scheduling of this meeting following my referral last month of the General Scheme of the Judicial Appointments Commission Bill 2016 for pre-legislative scrutiny. The Private Members Bill in the name of Deputy O'Callaghan which also proposes reforms in the area of judicial appointments is also, I understand, being considered today.
The Government approved these measures as a Scheme last month and the Scheme is now before the Committee today for scrutiny. Work on the technical drafting of the Bill has been underway and it is my intention, following today’s discussion, to finalise the preparation of the Bill quickly with a view to publication in February.
Main points of Scheme and the Bill
Let’s look at the two measures, one a Scheme, the other a Bill, that are now before the Committee. What is striking is how much these bills complement each other. We are both committed to significantly enhancing the judicial selection model with a strengthened new body, with clear objectives, full powers, appropriate resources and a clear mandate to recommend the most meritorious candidates for judicial office to government. It is appropriate we consider these new measures now, some 20 years after the creation of the Judicial Appointments Advisory Board. That Board has served us well, but as policy makers it is our duty to continually look to the future and attempt to improve process where we can. It is clear that both pieces of legislation are committed to this and where there are points of discussion about elements of the design, I look forward to having that discussion.
In order to be helpful to the Committee, I will address issues relevant to both the Bill before you and the Scheme:
· The Scheme sets up a new Commission. It’s an ambitious vision putting the new body on a dual purpose footing, to select candidates and recommend persons for appointment but ALSO to invest time, expertise and resources in redeveloping the requirements and procedures as a modern, professional and independent selection framework, fit for purpose now and into the future.
· The Private Members Bill also establishes a new Commission but does not go into detail on support measures.
· The Government Scheme brings all appointments into the new arrangements so that from now on judges wishing to serve in a higher court - or judicial ‘promotions’ as some might call them - must come through the Commission ; this is significant and is in line with views, from all quarters, that this should be the case. The Deputy’s Bill also brings these appointments within the ambit of the new arrangements.
· I should say that we each have a quite different view as to how the very senior President and Chief Justice posts should be approached, but we can discuss the respective merits of these during the meeting; my preference is the Government approach which, in summary, involves a special Committee under Head 32 to consider expressions of interest working in tandem with the Commission.
· Delivering on the Government Programme, Head 28 brings down from the present ‘minimum 7’ rule to just 3 the names that the Commission will now recommend to the Government for appointment . There will be 2 additional names to correspond with each additional vacancy. This is another major reform and one which again has been advocated in many quarters.
· The Deputy’s Bill also goes for 3; that’s fine, but there is a further qualification of this requiring the 3 names to be in order of merit and an additional 1 name only for another vacancy. The role of the Government under the Constitution in this matter requires a level of discretion that is not consistent with a statutory body providing only 3 names in order of choice; similarly, even without an order, if 6 names only could be recommended for 4 vacancies, if I am reading the intention of Deputy O’Callaghan’s Bill correctly, that is simply inadequate to provide a real choice to the Government in exercising its constitutional prerogative, and it may well be unconstitutional.
· Again, delivering on the Government Programme, the Scheme provides for a lay majority of 1 on the Commission, and a Lay Chair. We will discuss this, but the vision here is to strengthen very considerably the present 20 year old model of lay involvement; now it is just 3 lay as against 8 judicial and legal persons making decisions. Of course, getting exactly the right mix and input of lay expertise is difficult, but we will return to this. It is enough to say at this point that I believe that it is absolutely essential that there is a critical mass of non-judicial, non-legal voices on the Commission covering a range of expertise and experience. This is to complement the obviously indispensable inputs of the judiciary and the legal members as regards technical and professional suitability for appointment.
· The Private Members Bill keeps a majority judicial and legal formula. I think that the scale of reform required here – and the new professional selection organisation that we are creating - moves us beyond that.
· The Scheme also provides for a lay Chair; there seems to be no difficulty with this in England, Wales and Scotland, where the procedures have been fully reformed in recent times. It’s a Government Programme commitment; the Chief Justice is a member, and I believe the overall balance here is right. We can return to this too. Another perspective on this is that we will have a body with 5 judicial and legal members, 5 lay members and an independent lay chair to lead the overall undertaking and to moderate the deliberations of the Commission.
· One other similarity is the need, to expressly recognise the key requirement, simply merit. We do this in somewhat different ways, and again we can discuss.
· A big advantage of the Scheme to support the Government’s objectives is a commitment to properly resource the Commission. An Office under the Commission and a Director will make all the difference to what is planned.
Other matters addressed by the Government Bill include:
· New accountability requirements including accountability of the Commission to an Oireachtas Committee and a statement by the Minister annually to the Houses about appointments made in the previous year.
· Distinguished academic lawyers to become eligible for appointment as a judge in prescribed circumstances.
· the Scheme makes service on the District Court bench calculable for the practise requirements for appointment as a High Court judge. This is an important and warranted advance.
· Increasing to 70 the retirement age of District Judges so that all judges will have the same retirement age.
It will be important to monitor carefully the implementation of the reforms. Head 10 (8) requires the Committee set up under that Head , within 21 months of the coming into force of the measures, to report to the Commission on the implementation and effectiveness of the functions and procedures assigned to it.
Indeed I would wish to look at all of this again after a period. I am suggesting that the Committee may agree the need to include a review clause in the Bill that would require the Minister, 5 years after the commencement of the Act, to review its operation and, within 1 year of that, to prepare an analysis and report on the matter and to lay this before the Houses. This will allow all sides to revisit the reforms and see precisely how it is working.
I am absolutely determined that all judicial appointments are made on merit. So before I turn to other matters I would mention to the Committee that I intend to include in the legislation a prohibition on canvassing, which will make it unlawful for any person, candidate, applicant or otherwise, to seek to interfere with or compromise in any way the selection procedures. This issue has been mentioned by the judiciary, and subject to Government approval, a relevant provision should form part of the reforms.
The development by the Oireachtas of the system
Looking back briefly, the changes made in 1995 were quite ground-breaking then - up to that point selection and appointment of judges were entirely the preserve of the Government of the day; there were no intermediate steps, no separate authority involved in the process, no information provided about appointments. So while at this remove, the measures introduced some 20 years ago in the Courts and Court Officers Act 1995 may seem quite minimalist, at the time it changed the way Governments approached the whole question of judicial appointments. Other jurisdictions have moved on since and international instruments provide more guidance on best standards.
Of course I am not suggesting that we had anything other than an excellent judiciary which served us well before 1995 as we have had since. It is, however, about the public confidence that there is an independent and professionally operated and overseen system for selection of judges, based on transparent criteria, ‘upstream’ of the relevant decisions of Government.
And so we must move on and continue to protect the independence of the judiciary and guarantee to the greatest extent we can that the quality of our judicial system is maintained in today's conditions and the ever-changing environment around accountability, governance and administrative efficiency.
When it comes to reforming the system, the important point is that the establishment or amendment of a judicial selection system through legislation is a matter for the Oireachtas alone. So long as what is proposed is constitutional and is not retrospective, there can be no authority other than the Oireachtas on what the new legislative arrangements may be. And it is the prerogative of Government (or indeed, as we see today, any member of the Houses) to bring forward proposals to the Oireachtas for enactment
I might add that judicial selection is not part of the judicial function. The judicial function is to apply the law, interpret the constitution and defend the constitution. The only reason that the judiciary are involved in judicial selection is because the Oireachtas assigned that role in legislation. Nobody could argue against the judiciary having a major input in the judicial selection process because of their key skills, knowledge and experience. Nothing has changed constitutionally; in theory the Oireachtas could repeal the Judicial Appointments Advisory Board and not replace it with anything. Of course that is not a viable option but it is to illustrate the respective roles of the arms of State in the process, and the choices we have in that matter.
Views of judiciary
At this point, I need to say the following : The Irish judiciary is now and always has been one of the great successes of the Irish state. Its enduring independence has provided a constitutional structure that has enabled this state to withstand enormous political and economic threats to its existence and stability. The Irish judiciary is consistently among the top ten most independent judiciaries globally.
The Judicial Appointments Review Committee (“JARC” ) is a Committee of senior judges headed by Supreme Court Justice O'Donnell which has submitted views on the Scheme. The JARC also submitted very extensive views and analysis in 2014. The Chief Justice has also submitted views. The judiciary has indicated that is does not agree with aspects of the Scheme, that in their view prior study or research has not been conducted and elements of the Scheme are inconsistent with and contrary to international guidance and best practice. The most serious criticisms are directed at the new Commission, in particular its composition and Lay Chair, as proposed.
I have to be clear that the Scheme reflects much of what the judicial Committee proposed in consultations, if not precisely in the manner proposed. For instance in the Scheme we are proposing to deliver : –
· all posts including promotion of judges included,
· 3 names only recommended to Government,
· Inclusion of merit as critical guidance to selection,
· a properly resourced system; and
· an independent and professionalised selection process.
The judiciary has mentioned international benchmarks, but I have to say that international standards for protecting judicial independence recognize that there is a range of models for choosing judges and that democratic involvement through governments is a legitimate form of judicial selection. Even in our three immediate neighbouring jurisdictions there are different arrangements in play in relation to lay participation, lay chairing and other areas.
The key reforms
There has been consultation that has helped to inform these proposed changes. In 2014 we received 27 submissions from a range of different people and bodies, including both of the professional bodies and the Judiciary.
Guiding Principles under Head 5 provide an important reference for these reforming measures, the systematic development of processes and requirements that the Commission will have responsibility for, and the approach of the Executive to the appointment procedure. These principles underpin the reforming provisions of the Scheme.
At the heart of these reforms, we are putting in place a new Commission to replace the Judicial Appointments Advisory Board which had, or at least exercised a somewhat restricted remit under the 1995 Act over the intervening period of 20 years. The need for transparency and accountability but also the complexity and extent of the environment within which the judicial system now operates, demands something new.
It demands not only that the new Commission will have a much more exacting and “hands on” role in the selection of judges but also that extensive new work is carried out, with an ongoing remit, to update the requirements for selection and the manner of selection to take account of the very many considerations which are prescribed in the Scheme. I believe the framing statute is not the place to specify the attributes of candidates to a definitive degree; the Procedures Committee provided under Head 10 will do that under the auspices of the Commission with the support of expert analysis and research.
I believe it is a huge advance to have in place on a permanent basis a Commission, part of whose remit will be to develop fully professionalised selection processes. The principle is selection on merit, the layout of the detailed components of merit will be left to the Commission.
The Commission therefore has a developmental remit but of course its routine function will be to recommend 3 persons for a judicial vacancy and that is a major advance, in terms of the value being brought to the procedure by the Commission, from the 20 year old requirement to provide a minimum of 7 names. Indeed the 3 names, and let me recognise that this where the Private Members Bill and the Government measure intersects, is the lowest number advised as constitutionally and legally permissible as committed to in the Government Programme.
There are differences, important ones, linked to this provision, between the measures. I am satisfied that 3 names without an order of merit and an additional 2 – giving for example a total of 5 recommendations when there are 2 vacancies, or 7 where there are 3 vacancies, and so on – is the correct balance given the constitutional role of the Government in this matter.
I should add that the question of ranking names was considered by the Judicial Appointments Advisory Board and, in its Annual report in 2002, it was discounted as placing too great a restriction on the constitutional prerogative of government to select judges. I have concerns about the constitutionality of ranking and clearly we differ on that point.
The Scheme also contrasts with the 1995 provisions by bringing promotion of judges from one court to another into the framework of the Commission and this in itself is a major change but one that in the public consultations was invariably mentioned and adds I believe enormously to the transparency and equity of the whole appointments process.
The Board, or as it will now be , the Commission itself is changing. I know that the Government's view on this is not universally accepted. The Private Members Bill increases lay membership of the Board, and although I am not convinced of the merits of the “nominating body” mechanism for procuring that expertise, it is nevertheless a fair recognition that the existing position regarding lay input is inadequate. It is inadequate not only in terms of the numbers but also in terms of the range of expertise and experience being covered. In effect the lay input has been reduced since the Judicial Appointments Advisory Board was expanded to include the President of the new Court of Appeal just over two years ago, so even the rather minor role of lay persons as envisaged in 1995 has been diluted – not of course by design in this case but as a consequence of the creation of a new senior judicial office.
The position in other jurisdictions varies greatly so it is important not to generalise. However expert lay persons, including in some cases lay chairpersons, bring expertise such as that of senior civil service and public services managers , human resources and recruitment specialists, education and training experts, senior commercial executives, equality and diversity experts. I believe a modern appointments process should be driven by a Commission that can draw on these specialist qualities.
The Commission should also have at the centre of decision-making the experience lay persons have of the system of justice from the perspective of consumers of court processes, be it in family law, criminal law or indeed any aspect of law. In this context I have in mind interest groups involved in law matters, penal matters, victim concerns, and community law interests acting in a representative capacity locally and otherwise.
What we are trying to achieve in the cohort of lay people on the Commission is a mix and balance of relevant skills, knowledge, expertise and experience across a range of areas which will enhance the judicial selection process by widening the perspectives brought to bear on it.
The purpose of the enhanced lay participation is to complement the key expertise of the judiciary and of the legal members - not to seek in any way to minimise the role of serving judges in the process. There is less still any suggestion intended that there is any distrust in the manner in which our senior judiciary has conducted the recommendation process over many years. I have already underlined the value of the judiciary in the development and functioning of this State.
Reducing the number of judicial members in order to contain the Board, or the Commission at a reasonable number, which I suggest is certainly no more than the current number, while wishing to broaden the expertise of the Commission in the way I have mentioned, simply implies that the judicial member complement must be less than it is currently. The Scheme provides that two of the most senior judges will be members of the Commission while ex-officio another Court President will participate.
I believe that this constitutes substantial and senior input on the part of the judiciary, and therefore the construction of the Commission is not inconsistent with certain guidelines including the relevant Committee of Ministers of the Council of Europe recommendation. I might note that the European Network of Councils for the Judiciary (ENCJ) stated clearly in its Dublin Declaration in 2012 that “the judiciary must not necessarily have an absolute majority membership on such a selection and appointment body” .
Deputy O'Callaghan’s Bill goes for a list of nominating bodies to provide lay persons but I don’t think that is the best approach, and I believe the Deputy himself has indicated as much. Without spending too much time on this, it must be said that there is potentially dozens of such bodies that one could contemplate consulting to nominate a lay person, so I have preferred to devise somewhat more generic expertise that the Public Appointments Service can reference in its recruitment of Commission members. I accept that it is difficult to get this element of the provision 100% right.
I can indicate that the particular Head in the Scheme which provides for dual lists of skills for selection of lay members is something which has been criticised in some quarters and this is being looked at very closely in the drafting process with a view to simplifying it. The bottom line is to define a reasonably wide set of expertise and experience which we want among the lay cadre and some means of ensuring that the 5 lay people who are delivered onto the Commission have amongst them the widest possible representation across those areas.
Lay Chairing of selection Commissions in other jurisdictions is not uncommon. The corresponding Commissions in England and Wales, and Scotland have a lay chairperson. Again I accept that not everyone will agree with this measure. The Private Members Bill retains the status quo with the Commission to be chaired by the Chief Justice. That is a choice, but I suggest that the Chairperson be the most highly qualified lay person, meeting the special criteria set down, and selected after a rigorous process conducted by the Public Appointments Service.
I believe too that it is better that the legislature has a role here. It is appropriate therefore that a proposed appointee also satisfies the Oireachtas before confirmation and that the approval of the appointments by resolutions of the Houses will ‘double-lock’ the ministerial appointment provision. That arguably is more open than the current system, and that is no reflection on the special qualities and insight that a Chief Justice will have. The Commission will continue to benefit from that unique expertise and insight.
Head 32 provides for a new Committee that will deal only with the posts of Chief Justice, President of the Court of Appeal and President of the High Court . The Commission is involved in the referral of names to this Committee, but it is the Committee that will recommend names to the Government. This separate treatment of the highest level appointments is warranted although in the drafting of the measure I should signal now that some reconfiguration of the composition of this Committee is under consideration. This relates mainly to the role of the Minister, who should not have a recommending role as well as a role as Executive member.
So on this I will discuss further with Deputies during the passage of the Bill how this Committee is ideally configured . Other than the three senior posts, I would envisage a vacancy in the post of either President of the Circuit Court or District Court being filled under the standard procedure. I prefer this more qualified approach to the one proposed in Deputy O’Callaghan’s Bill which envisages arrangements for the filling of all 5 leading judicial roles which would appear to be confined only to judges of the particular courts.
I do not think that the Private Members Bill makes sufficiently targeted provision to support the work of the new Commission. Granted, the Commission the Deputy has in mind is not quite the same thing as the Commission I am proposing in the Scheme which will have an extensive workload. Head 19 provides that the Commission will have a dedicated resource attached to it for support purposes. Under Head 20 that will be under the direction of a Director who will be accountable to the Commission. A staff complement will be necessary and I propose, with the approval of the Minister for Expenditure and Reform , providing a sum somewhere in the region of €500,000 for this purpose. I think this is an important statement of intent to underline the serious work that I anticipate the Commission undertaking.
The Deputy has provided for the involvement of the Commission in the process of nominations of judges for the main EU courts and the European Court of Human Rights. I am prepared to discuss this with the Committee however I believe the normal arrangements for such nominations work very well, have produced excellent representatives in the Courts in question and are of course subject to a second tier of procedure in the European Courts themselves.
I have already mentioned where the drafting work on the Bill has revealed a need to clarify, reconfigure and adapt somewhat some of the provisions in the General Scheme - this is normal in the process of drafting undertaken by parliamentary counsel in consultation with my officials. Let me be clear however that none of the core elements which I have already covered this morning have been varied in principle in the Bill as drafted from the Heads that we are considering now. Elements such as:- the exact format of new selection procedures and competency frameworks, transitional measures to allow the Commission to immediately get to work and the extent of legislative repeals or restatement that may be required – these aspects are undergoing some re-shaping in the draft, and the definitive position will be available when the Bill is published next month.
I would also like to link the reforms we are discussing today, which I believe are vitally necessary and far-reaching, with a related suite of reforms set out in the Judicial Council Bill which will promote excellence in the exercise of judicial functions and high standards of judicial conduct and related matters. Together I believe these reforms will bring the entire judicial system, so fundamental to the working of a forward-looking State and society, into a wholly new and modern setting , suitable for the needs of a challenging and demanding 21st century environment.
Finally let me again thank the Committee for this opportunity to discuss the proposals and also again thank Deputy O’Callaghan for bringing forward his Private Members Bill which was clearly the subject of extensive research, expertise and hard work. I also want to stress my willingness to listen carefully to all of the Deputies today and to reflect on the feasibility of making any adjustments that can fairly reflect the will of the Committee and that will be consistent with the key objectives of the Scheme, which I have outlined.
Thank you Cathaoirleach