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Seanad Commencement Matter
The need for the government to respect constitutional provisions in relation to the appointment of judges
Reply by Minister of State David Stanton TD on behalf of the
Tánaiste and the Minister for Justice and Equality, Frances Fitzgerald TD
1st February 2017
Senator Michael McDowell
I want to thank the Senator for raising this matter, and I am pleased to address the issue on behalf of the Tánaiste, who is not in a position to attend today.
The Government’s General Scheme of a Judicial Appointments Commission has already been the subject of pre-legislative scrutiny in a meeting of the Joint Committee on Justice and Equality last week, in conjunction with Deputy Jim O’Callaghan’s Bill. Taking into account the feedback from that Committee, the Tánaiste intends to bring forward improved and elaborated proposals in the form of a Bill to be published at an early stage for further discussion and examination by both Houses.
The Government proposals arise in the first instance from policy consideration of the responses to a 2014 public consultation and call for submissions on the question of the need for reform of existing provisions for eligibility for judicial appointment.
A commitment to the establishment of a new Judicial Appointments Commission was made in the 2016 Programme for Government and also as part of the “Confidence and Supply” arrangement between Fianna Fáil and Fine Gael.
The design of the Government proposals, having a lay majority of 1 and a lay Chair, provides for a much needed critical mass of non-judicial, non-legal people in the selection process and enables a wider set of expertise and experience among lay people to be represented on the Commission. There appears to be no difficulty with the concepts of either lay Chair or lay majority in either the England and Wales and Scotland jurisdictions, where the procedures have been fully reformed in recent times. It’s a Government Programme commitment; the Chief Justice will be a member of the Commission and as the most senior member of the judiciary will have both a critical and highly influential input in relation candidates' suitability for judicial office, and I believe the overall balance proposed by the Government here is right.
No one would disagree that the judiciary have an important role to play and a hugely significant input to make in the judicial selection process because of their unique knowledge, skillset and experience. The Tánaiste very specifically acknowledged this at the Joint Committee discussion last week.
Delivering on the Programme for Government, the Government proposals bring 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.
As the Senator may have noticed, last week the Tánaiste said that it was her intention 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, as opposed to a judicial, function. The formal function of appointing judges by the President is not one of Presidential discretion, but is a function which, in conformity with Article 13.9 of the Constitution, is to be performed only on the advice of the Government.
The current proposals for replacement of the JAAB with a modernised Commission do not change anything from a constitutional point of view. It is by now a standard model internationally 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 JAAB legislation in 1995, it is clearly a matter for these Houses to consider what should go into legislation to reform the appointments system and it is a matter for the Government (and for any Member this or the other House as the case may be) to propose to the Houses what should be in such legislation. There is nothing in the reforms proposed by the Government which impinges on the independence of the judiciary. There is equally nothing in the proposals – nor could there be - which impinges on the constitutional prerogative of the government to advise the president on appointments.
In fact, the proposed legislation enhances the independence of the judiciary in a number of ways including by the establishment of a body to design and conduct independent and professional selection processes leading to the recommendation of names of proposed appointees to judicial office to the Government.
Engagement with key stakeholders is continuing and Senators will be aware that the establishment or amendment of a judicial selection system through legislation is a matter for the Oireachtas alone and there is no authority other than the Oireachtas on what the new legislative arrangements may be. It is the Government’s prerogative to bring forward proposals to the Oireachtas for enactment, and that is an objective that we are determined to realise.
Finally, might I say that the enduring independence of the Irish Judiciary has provided a constitutional structure that has enabled this state to withstand enormous political and economic threats to its existence and stability. We should always acknowledge and value this.