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Judicial Appointments Commission Bill 2017
Second Stage speech by Charlie Flanagan TD, Minister for Justice and Equality
27 June 2017
A Cathaoirleach / Leas Cathaoirleach,
I move that the Bill be read a second time. As the House we be aware, it has been a long journey to this point and my predecessor, the Tánaiste, undertook an enormous amount of painstaking work on the complex matters involved in this legislation including a public consultation conducted in 2014 by another of my predecessors as Minister for Justice, former Deputy Shatter.
The impartial administration of justice according to law is vital in ensuring that we have a strong and stable modern democracy in the State. The critical and often difficult task that the judiciary performs at every level of the courts system is central to maintaining this and a key concern is to have a system of appointments that supports public confidence in the administration of justice in our courts.
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 dealing with judicial appointments in the State.
For the first time we will have a comprehensive statute providing exclusively for the process of judicial appointments in a transparent way. The Bill represents quite a unique and modernising approach which has been devised to deal with this complex area of administration so that it is best suited to our needs in the 21st century.
In this Bill I am bringing forward immediate and innovative changes to the judicial appointments structure that has been operating for the past 20 years or so. But the Bill also sets up a dynamic mechanism to further develop and embed needed improvements and reforms as the justice and social and economic environments evolve into the future.
Over three years ago, the then Justice Minister, set about bringing our system of judicial appointments in line with international best practice. A decision was taken to engage in public consultations and to get the views of stakeholders as to what the best approach might be to devising an improved system. Certain themes were flagged going into that process including:
- the need to continue to protect the independence of the judiciary,
- the role of the Judicial Appointments Advisory Board and
- eligibility issues and the diversity of our judiciary.
Much of the content of the Bill reflects the outcome of that process and the research and policy analysis which followed it in the Department of Justice.
While there are deficiencies in some aspects of the present system, it could not be said to have affected the quality, diligence and integrity of the judiciary which has contributed greatly to the success of our modern democracy. And perhaps most of all its true independence – Ireland regularly features very highly on international measures of judicial independence.
Judges themselves through their professionalism and service have ensured that our judiciary is held in high esteem. I want the debate in these Houses over the next few weeks to be appropriately respectful to the judicial branch of government.
DEVELOPING BEST PRACTICE
I will come to the key immediate reforms in a moment that I believe will bring real change and a better and more open and transparent process under the terms of the Bill. But I want to first underline the significance of having a Commission - working through a Procedures Committee established under section 19 - that will be tasked with a remit to quickly 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. Not just a once-off task – under Part 8, the Committee will 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.
So real attention to system review and process improvement is at the heart of this Bill, having regard to the best practice judicial appointment model that can be devised and, indeed, improved over time. That will be an ongoing process and the Bill requires the Commission to report to the Minister in the matter.
CURRENT SYSTEM - DRAWBACKS
The current arrangements for judicial appointments, embodied in the 1995 Court and Court Officers Act as amended, represented an important advance by introducing a new independent element to the judicial appointments process. Up to that time, of course, there was effectively nothing in place to guide the function of appointment other than the relevant terms of the Constitution. 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. That is not changing, obviously, but it is a matter for the Oireachtas to legislate for the systems and procedures that are needed to support decision making under the Constitutional prerogative.
It was an important step in 1995 to bring lay persons 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. While I am conscious that I am speaking with the benefit of over 20 years hindsight, reflection on the experience however can only lead one to conclude that the arrangements were limited in a number of respects and the Bill before the House today brings the system to a new level of openness and effectiveness.
For example, the limitation of the scope of the Advisory Board to first-time judicial appointments only, meant in effect that the new procedures were concerned with just one dimension of the judicial appointment process. It did not address the elevation of serving judges from one court to another which of course is an option that is exercised quite regularly when it comes to appointing persons to the Superior Courts.
So, when a serving judge is the subject of judicial appointment, the Judicial Appointments Advisory Board has no role, although it may have recommended practising lawyers for the same position. Where it has a role, that is in recommending persons, other than serving judges, for appointment it must recommend at least seven persons, if it can, to the Minister. If the vacancy in question is as President of any Court or as Chief Justice, it has no role.
It is also the case that 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.
So it is unsurprising that these limitations were the overall focus of what was effectively a critique of the present system in submissions made by stakeholders in the public consultation process. And addressing these identified limitations and broadening the vision of what the Commission can be is really what this Bill is all about.
However it is perhaps not overly instructive to emphasise limitations in the present statutory arrangements – after all it is well over 20 years now since that legislation was conceived. 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. And so we will move to a radically more open, transparent and independent system under the Bill. Instead of the Government dealing with multiple recommendations as can happen now, for a particular judicial post combined with names of potentially any number of serving judges before them, it will now, under section 42, have only 3 names before it, all coming through the Commission process. This is a significant change. It is consistent with best international practice. The Government under the Constitution will continue to retain the discretion to appoint a person to judicial office but will, as section 48 provides, and as the 1995 Act provided, have to first consider the recommendations made to it. The names coming from the new Commission will, in turn, have come through professional and carefully designed selection processes which will be transparent.
I think it is worth noting that under this Bill, it is the qualifications, experience and character, not just of legal professionals and - in a new provision - legal academics, but also of judges themselves who wish to serve in a higher judicial office that will be assessed.
TOP 3 JUDICIAL POSTS
The three most senior judicial posts - that of Chief Justice, President of the Court of Appeal and the President of the High Court will, under section 46, be subject to a variation of the general process. In respect of these three judicial positions only, the Commission will forward the names of persons who have expressed an interest to a new Senior Judicial Appointments Advisory Committee comprised of the Chief Justice, the Lay Chairperson of the new Commission and the Attorney General, and this Committee will recommend 3 names to the Government. The Scheme had provided that the Minister would also be a member of the Committee but, following consultation and reflection on this point, membership of the Committee will now be as provided under the Bill.
THE NEW COMMISSION
This Bill provides the new Commission with a very substantial and definitive function in respect of the selection of our judiciary into the future.
Reflecting today’s governance and participation models of public policy decision-making, the new Commission will have strong lay representation. This legislation is largely about getting the balance right as between different contributions and interests.
There has been a lot of discourse, and no doubt will be a lot more of it in the course of this debate, about the numbers of judges involved in the selection process and whether or not they should form a majority in any body set up for this purpose. I think it is worth repeating here something which the Tánaiste said when the Scheme preceding this Bill was undergoing pre-legislative scrutiny in January. She said:
“Judicial selection is not part of the judicial function. The judicial function is to apply the law, interpret the Constitution and defend it. The reason the Judiciary is involved in judicial selection is because the Oireachtas assigned it that role in legislation. In my view, no one could argue against the Judiciary having a major input into the judicial selection process because of the key skills, knowledge and experience of the judges. 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 illustrates the respective roles of the arms of State in the process and the choices we have in that matter."
Section 12 of the Bill provides for a new Commission of 13 members. This is an increase of two on the current Advisory Board numbers and an increase of 2 in the membership as provided for in the General Scheme of the Bill, the model discussed at pre-legislative scrutiny stage in Committee in January last.
I want to be clear about the status of the Government Programme commitment to reduce Commission numbers - it has not proven possible to do that while at the same time legislating for the more substantive related commitments. It wouldn’t be operationally feasible to reduce numbers while providing for a lay majority and lay chairperson and at the same time retaining the Attorney General and legal professionals, which I believe are indispensable, as well as having the most appropriate level of senior judicial involvement in the structure.
JUDICIAL INPUT TO SELECTION AND RECOMMENDATION
This is perhaps the main substantive variation in the Bill from the terms of the General Scheme. Section 12 provides that the Commission will have 13 members; a lay chair, the 3 most senior judicial office holders, the Attorney General, one representative each of the solicitor and barrister professions and 6 ordinary lay members. I am persuaded that the Chief Justice and both the Presidents of the Court of Appeal and the President of the High Court should be full Commission members, directly involved in all appointments to the courts over which they preside and, in the case of the Chief Justice, to all courts. These most senior judicial office holders will also of course be full members of the Commission for the purposes of discharging other critical functions under the Bill. This includes the approval of the statement of selection procedures and skills and attributes statements as developed by the Procedures Committee and oversight of the review process provided for under Part 8.
I would be the very first to acknowledge that the judiciary of course have very critical and indeed determinative expertise in terms of understanding and advising on the legal, courtroom and analytical aspects what it takes to be a successful judge and that this will in turn be complemented by the specific additional legal sector qualities which the Attorney General and the representatives of the Bar and Solicitors will also bring to the table. Clearly you cannot be appointed as a judge unless you have the necessary foundation legal and related knowledge and skills to do the job with excellence.
However the non-legal people, carefully and professionally selected by the Public Appointments Service, who will now be part of these selection processes as a very substantial cohort, will also bring a range of necessary additional life, user and citizen perspective, governance and selection expertise into the mix.
I am sure that, in the new arrangements, the participating judges, those with non-judicial legal experience and those with other areas of expertise and experience will work very closely and respectfully together, under the guidance of the chair, to reassure the people of Ireland that the best possible people are being selected for the bench. That is our aim. That is what we as a Government are proposing to the representatives of the people in this House today in the form of this Bill.
Staying on the subject of judicial representation in the appointments process, Deputies may be aware that there is some concern among the senior judiciary about the implementation of the Programme for Government commitments to appointing a lay chairperson to the Commission and having a majority of lay members.
The Government has consulted in depth with the representatives of the Judicial Appointments Review Committee which is the senior judiciary grouping tasked with contributing to the change process. Very substantial and significant elements of the legislation are consistent with the informed views of the judiciary. For example the move to only three recommendations, the inclusion of all appointments in the new process including of serving judges, the dedicated resources provided, the provision for selection and recommendation to be based on merit, new accountability arrangements, a prohibition on canvassing and other important elements of the Bill reflect key tenets of the judiciary's position on these reforms.
Deputies 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 of which the Chief Justice is a member. A particular concern expressed in that regard is that all of the five Court presidents, including the Chief Justice, should be directly involved in the selection and recommendation of persons for appointment, as is the case now in the JAAB process.
COURT APPOINTMENTS COMMITTEES
On careful consideration, having listened to the views of the judiciary on the matter, and reflecting on the point in the context of the pre-legislative scrutiny debate, it would appear to me to be desirable to meet this particular point. Rather than a consultation - type arrangement with, for example, the President of the District court, as the ex-officio arrangement under the General Scheme would have provided, a direct decision- making role for each President should be retained as in the JAAB process.
So, sections 11 and 13 provide that the Commission shall act in the form of a relevant 11 person Committee, one for each of the 5 courts. In the case of an appointment to the Circuit Court, for example, the Committee will comprise the Commission members with the President of the Circuit Court replacing the Presidents of the Court of Appeal and the High Court and with five ordinary lay members instead of six. It is that Committee that will conduct the selection process and recommend persons to the Minister for appointment, in the example, to the Circuit Court. So while all the Superior court presidents including the Chief Justice are permanent members of the Commission, through the Appointment Committees – referred to in the Bill as ‘relevant committees’ format, all Presidents are to be part of the decision making process in selecting and recommending persons for appointment to the relevant court. I want to make it clear that under Section 10 of the Bill, these relevant committees actually perform the functions of the Commission in respect of selection for each of the Courts. In this sense they are statutory iterations of the Commission itself and, as I have said, empowered to select and make the decision on who to recommend.
In the modern environment of administration, in a new body, moreover one that will exercise much more decisive and definitive functions than its JAAB predecessor, an adequate and cost effective professional management structure is essential. The new Office to support the Commission and the new position of Director under Part 5 of the Bill are central parts of that . But there is also the need to lead the Commission in the professional administrative and recruitment ‘space’. The carefully constructed qualifying criteria under section 15 that underpin the appointment of a lay chairperson to be recruited by the Public Appointments Service will require the person to have board management and corporate governance expertise among other things.
The knowledge and professional experience to be possessed by the ordinary lay members is exacting, and these members will also be recruited in open competition by the PAS. Subsection (7) of section 15 sets out the areas of knowledge and of professional experience that PAS will be looking for, and is designed towards attracting persons with professional experience of court matters, those who support victims of crime, those with professional experience of making appointments and dispute resolution and mediation activities.
I am satisfied that the critical task of selecting our judiciary for the future needs a modern professional structure with both essential hands-on and professional experience directly relevant to the Court environment and all of its stakeholders. Enhanced lay participation will complement the depth of understanding and vast expertise of our senior judiciary in the determination of what’s required for these important positions and ensure that the best possible candidates are selected reflecting our diverse society.
We are leaving behind the model of the day that was the JAAB and I thank all of those over the 20 years or so of its existence that have helped to shape today’s judicial benches. This function was for the past number of years admirably discharged under the careful stewardship of her honourable Mrs Justice Susan Denham and by her predecessors.
OPEN, TRANSPARENT AND ACCOUNTABLE SYSTEM
In framing the various provisions of the Bill, the Tánaiste was particularly aware of the need to ensure that our new system of appointments was as open and transparent as it can be and was underpinned by a meaningful set of accountability arrangements.
Some examples from the Bill illustrate this. The new Commission Chairperson will be accountable to an Oireachtas Committee for the general administration of the Commission as envisaged in the Government programme. Under section 24 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. Under section 28 the Minister also has the power to request a report by the Commission on any matter relating to its functions.
This House will have a role in respect of other openness and accountability matters as well. It is each of the Houses of the Oireachtas that 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 51 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 would mention too that section 64 prohibits canvassing by an applicant or by anyone on an applicant’s behalf and provides for an offence in the matter.
I have covered the key immediate steps to be introduced under the Bill. Once the Commission is in place, the practical changes I have mentioned can have immediate effect such as the reduced number of recommendations and the inclusion of serving judges in the recommendation process. There are many other technical provisions in the Bill but these are generally standard supporting matters – for example resignations from the Commission, disqualification, terms of office etc.- and I do not propose to itemise these.
But it is important to consider Part 8. This is about a progressive approach to reform, allowing for further development of the selection procedures, informed with reference to best international practice and other considerations set out in the Bill. These functions focus on the work of the Procedures Committee which under section 19 will be composed of 7 members of the Commission with a lay majority and lay chairperson.
There are two main tasks to be performed by the Commission under Part 8. Firstly under section 55 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. The Bill requires consultation in respect of this task, including with Court Presidents, and sets out certain matters that the Committee shall have regard to . One of these I want to underline is the objective that membership of the judiciary should comprise equal numbers of men and women and that to the extent feasible and practicable should reflect the diversity within the population as a whole.
Section 55 provides for certain essential requirements in the area of judicial competency that must be reflected in the statement. These include an ability to conduct proceedings in a manner that ensures confidence by the public in the administration of justice and the practical considerations that effect the experience of lay persons of the courts system. Before approving or refusing to approve statements prepared by the Committee the Commission must consult with the Minister. The Statements must under section 57 be published if approved within 12 months, or 18 months at most, from the commencement of the provisions.
The second key task of the Procedures Committee is to review the operation of the published statement, the effectiveness of the requirements for selection, and the adequacy of functions assigned to the Commission, among other things. It must, too,
report to the Commission on the outcome of its review two years after the commencement of the provisions and such report 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.
I have pointed to a number of aspects of the Bill that represents some development of the measures outlined in the General Scheme. The Scheme for example provided for a number of guiding principles for the selection and recommendation procedures. One of these related to merit and it has been decided that the Bill, in section 7, should focus the recommendation and selection process on merit not as a guiding principle but in fact as THE criterion to underpin the selection and recommendation of persons for appointment. It has been stated many times how well the State has been served by the judiciary, not least as a cornerstone of our democratic system. The onus is on the State to ensure this state of affairs is maintained and, indeed, enhanced - it is a vital statement of intent that merit is the basis on which all recommendations will be made.
This has been addressed by the judiciary extensively in the gestation of this Bill and we have listened to and discussed the merit issue in some detail in that process and we have made what I think is a very substantial step forward between the Scheme and the Bill in this regard by putting merit out on its own as the determining factor.
I have retained as objectives in the Bill that the membership of the judiciary should compose equal numbers of men and women and to the extent feasible and practicable reflect the diversity within the population as a whole. These matters will, subject to the overriding merit principle, be considered at selection and appointment stage. As Deputies will see from Section 55 of the Bill, they will also be addressed by the Procedures Committee when designing and setting out the procedures and components associated with selection processes.
The last substantive matter that I want to mention is the opening up of the 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 35. I have tightened the eligibility arrangements under the General Scheme to require, along with having 12 years standing as a legal academic, that such lawyers will have to have practised as a solicitor or a barrister for at least 4 years. I am persuaded that knowledge and experience of court practise is an essential qualification in any judicial appointment.
The change for serving District Court judges is somewhat overdue. I might mention that for District judges too, section 61 sets at 70 their retirement age which is the same as judges of other courts, and ending that anomaly is also perhaps overdue.
Finally two matters:
First, this is a far reaching and in depth reform of the judicial appointments system. I am confident that the measures are what’s needed. I want however to see precisely after five years of its application how effective these developments are in practice. Section 5 requires the Minister to review the working of the Act and report in the matter to the Houses of the Oireachtas. Deputies too will want to see a full account of its operation. That review will take account of the work of the Commission’s Procedures Committee in reviewing matters after two years.
Secondly the Government will not wish to leave judicial positions vacant once the Commission is established and in the period before the Procedures Committee develops the statements setting out the procedures and the skills required of candidates. So section 63 will allow the Commission to make recommendations in response to a request by the Minister in the interim - effectively as soon as the Commission is in place, and I expect that to happen quickly after enactment. It will do so having set out the elements deemed essential to the practical application process. This will be a short-term arrangement as the Commission must publish the statements in question within 12 months or at most 18 months of commencement of the relevant section.
Deputies, I am putting this Bill forward as the best approach to ensuring to the greatest extent we can that the quality of our judicial system is maintained to all of society’s benefit.
I believe that it is hard to overstate how significant these reforms are. Lest there be any doubt about the matter also I want to make it clear that in moving from Scheme to Bill, we have taken account of a great deal of what the judiciary have had to say including in relation to merit, canvassing, the selection of lay candidates, the provisions in relation to academics and in other areas. What we have not done is to move away from the fundamental undertakings as to lay majority and chairperson which are in the Programme for Government. I commend the Bill to the House.