Second stage speech by Minister McEntee on Judicial Appointments Commission Bill 2022

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A Cheann Comhairle,

I am delighted to be here with you today to open the debate and the deliberations of the House on the Judicial Appointments Commission Bill 2022.

The proposals I am presenting today in the Judicial Appointments Commission Bill 2022 are transformative, and will provide for deep and wide-ranging reform. The reformed appointments system will be seen to clearly emphasise principles of meritocracy and independence. It is designed to meet both our own constitutional standards, and the standards set by the Court of Justice of the European Union regarding independence and the rule of law in judicial appointments.

The overarching change is that all appointments to any court in the State will be based on recommendations from the new Commission. Government discretion to appoint will be from within a limited choice of 3 candidates. This is for every judicial office in the State right up through the courts system to the office of Chief Justice.

Every judge wishing to be considered for appointment to higher judicial office, must apply to the Commission and cannot be appointed by the government without a recommendation by the Commission. Indeed no one can be appointed a judge without applying to the Commission, and being recommended.

In an important adjustment to the General Scheme, the Bill incorporates in the Commission’s remit recommendations for nominations by the government to courts outside the State including the Court of Justice and the European Court of Human Rights.

We should not take our strong record of judicial excellence and independence for granted - we are well served by the judiciary and are fortunate in that regard. But it is time to underpin that with a strengthened appointments system. Deputies will know how important it is to review and strengthen the structure and organisation we have around the entire justice area – I am committed to that – and this is just as much the case when it comes to the central part played by our judges in every court in the State and indeed, where we are involved, outside the State.

This approach being proposed by Government, which will require interviews to be carried out and which makes training and continuous professional development mandatory for those seeking to be appointed, represents a very significant limiting of the discretion Government will have. The Bill will also ensure that we continue to have a strong, independent judiciary in this country, which is a cornerstone of any liberal democracy.

We have moved on from the 2017 Bill, to what I believe is an improved basis for the reforms which are required in the area of judicial appointments. Today’s Bill of course, like the previous Bill, is about setting up a new Commission to replace the Judicial Appointments Advisory Board to recommend persons for appointment as judges by the President on the advice of the government under the Constitution.

Unlike the earlier Bill, the 2022 Bill provides for a much smaller nine person commission, which I believe will be much more effective that the earlier proposal for a 17 person commission. The remit of the Commission is now wider, and the new process is substantially different to what had been planned previously, with the make-up of the Commission very different. And, as I will explain, I believe the outcome will be an improvement on the approach previously envisaged.

As I set out the overview of the Bill I will focus on adaptations of the General Scheme where that is relevant.

Part 1 of the Bill deals with interpretation, including some key definitions and other standard introductory matters.

Part 2 is about the Commission itself.

Deputies will be aware that previous legislation, or certainly debate on it, seemed at times to be very focused on the membership of the Commission, including in particular the balance of lay and judicial membership and the chairing arrangements. The Programme for Government commitment to bring forward this reform was clear - the new Commission is to be chaired by the Chief Justice. The Chief Justice has chaired the JAAB for in the region of 25 years. I will take this opportunity of thanking the Chief Justice and his predecessors, and indeed all of their JAAB colleagues, for all their work over that period.

One of the first requests I made in looking at the older legislation was that my department would look again at the composition of equivalent type bodies internationally and to consider what the European Commission and the Committee of Ministers of the Council of Europe was saying on this subject.

Canada and its different provinces for example appear to me to be strong on representing particular lay interests, and the Northern Ireland model also provides guidance on the balance of lay and judicial involvement. Our 1995 Act provided for 3 lay members out of a total membership of 10; later 3 out of 11 in total when the President of the Court of Appeal was added. I believe that enhanced outside expertise which can be provided through lay involvement will be an important addition to the Commission .

My conclusion is that an equivalence of judicial and lay members is best, one of the judicial members being the Chief Justice as chairperson, with the requirements for lay membership being as practical and flexible as needs be as I think section 13 demonstrates.

I believe Court Presidents as required should be members when the relevant recommendations are being made. So, while the President of the Court of Appeal is the permanent member, and I noted what the Oireachtas Committee said about this, section 9, subsection (2) will operate as follows. When, for example, recommendations for appointment to the High Court are to be the subject of the Commissions’ deliberations, it is the President of the High Court who will become a member of the Commission instead, temporarily, of the President of the Court of Appeal, for that purpose. This is a common-sense approach.

Section 12 will provide for the nomination of 2 judicial members by the Judicial Council. The Bill provides for one male judge and one female judge. Of these judges one will be a judge of the Supreme Court, Court of Appeal or High Court and one will be a judge of the Circuit or the District Court. Of the 2 judges, one shall also have been a practising barrister and one a practising solicitor at the time of their appointment as judges.

The latter aspect, will I am confident, bring the understanding, knowledge and background of the relevant legal professions to the task of making informed recommendations when those judges are nominated by the Council and appointed by the Minister to the Commission.

The Attorney General will be a non-voting member bringing the total membership of the Commission to 9.

On composition and gender balance; other than ex-officio members, I have provided for a male and female nominee of the Judicial Council, and section 13 provides that the selection criteria shall have regard to the need that recommendations for appointment by the Minister of the 4 lay members comprise an equal number of women and men, as well as also reflecting the diversity of the population as a whole.

Under Part 2 I want to ensure that the Commission has a particular obligation to set out its strategy for the achievement of the diversity objective set out in section 39. In an addition then to the General Scheme, section 28 provides that the Commission will publish a diversity statement no later than 2 years after the coming into operation of that section and thereafter at least once in every 4 year period or less. The diversity statement shall include the procedures put in place to achieve the diversity objective including how they will assist to remove barriers faced by persons that are under-represented in judicial office. I carefully considered the outcome of pre-legislative scrutiny in this matter.

These sections of the Bill compliment the commitments I have set out in Justice Plan 2022, which commits to bringing forward proposals to drive forward reform of legal education, which will include removing barriers to entering the legal profession, increasing diversity and introducing independent oversight of professional legal education for the first time.

Part 3 provides for a small supporting resource for the new Commission – a Director to be appointed by the Minister, and staff. The Director shall be responsible to the Commission for the performance of his or her functions.

Part 4 in many ways is the pivotal set of provisions.

The desired values we already associate with our judiciary will only be reinforced under section 39 - it provides that a decision by the Commission to recommend a person must be based on merit.

The recommendations made by the Commission must have regard to essential requirements set out in the Bill. The most obvious ones, covered in section 40 concern basic eligibility concerning practice of the law, and for appointments outside the State, the criteria and requirements of the relevant institutions, conventions, and available guidance. The recommended person must also have satisfied the Commission that they possess the relevant knowledge, skills and attributes set out in a Judicial Selection Statement under Part 5.

Critically too, subject to the merit stipulation in section 39, the Commission must have regard to the following objectives:

• of having equal numbers of men and women judges in all courts
• of having a judiciary reflective of the diversity of the people in our country
• of meeting the need for the conduct of court proceedings in the Irish language

Staying with Part 4 of the Bill, Deputies will know that currently, and historically, when an appointment of a serving judge to higher judicial office is made, it will not have come through the Judicial Appointments Advisory Board. The remit of the Board under the Courts and Court Officers Act 1995, as amended, is restricted to persons seeking appointment for the first time as a judge.

So to illustrate, a judge, appointed to the High Court sometime in the past on a recommendation of the JAAB, were he or she interested in further appointment now to the Court of Appeal, would not be applying to JAAB, and that Board would have no part in that further appointment.

A real strength of the new process under the Bill and the Commission is that there will be a single application stream for all applicants.

To be clear, all those wishing to be considered for appointment to judicial office must make an application to the Commission under section 43 and a recommendation can only be made to the Minister arising directly from such an application. An important element of section 43 is that an application can only be made pursuant to an invitation to make applications issued by the Commission by way of advertisement under section 42.

We are also moving toward a more structured approach to appointments in another area. In a change from the General Scheme, I am including in the remit of the Commission the making of recommendations to the Minister for Justice or the Minister for Foreign Affairs of persons for nomination by the government for appointment or election to judicial offices outside the State.

The Bill will give the task of selecting and recommending persons for these roles in the Court of Justice and the General Court of the EU, the European Court of Human Rights and the International Criminal Court to the new Commission. I would refer to sections 42, subsection (2) and section 48 which give the Minister for Foreign Affairs direct involvement in this. I would like to acknowledge the very positive contribution to this part of the Bill made by Minister Coveney and his department.

Still under Part 4, we see another fundamental reform. The position to date is that the appointment of judges, on advice to the President, is an executive function under the Constitution. That doesn’t change of course, but in section 51, I am providing for the first time in law that only recommended persons, that is persons recommended by the Commission, may be appointed to judicial office in the State. The same applies under section 52 to nominations to judicial office outside the State such as to the European Court of Human Rights and so on.

The 1995 Act requires the government to first consider recommendations made by the JAAB. It is an important change then that Government may only appoint recommended persons.

Since the foundation of the state, we have had a strong and independent judiciary. In providing that only recommended persons can be appointed to judicial office, we will ensure that this continues to be the case, while meeting our constitutional requirements.

This Bill proposes a change to the current JAAB procedure regarding the number of recommendations that the Commission will make. I refer Deputies to sections 47 and 48 of the Bill. The Bill provides for 3 recommendations across all of the different judicial offices, all of those in the State as well as the Court of Justice, the European Court of Human Rights and the other international courts.

Under the 1995 procedure – the JAAB process - which, as I have said is confined to only new appointments and only judicial offices in the State, it is a minimum of 7 recommendations. I am now proposing in this Bill to significantly limit the discretion which the government of the day has in relation to selection and appointment of judges.

Under the Bill the names of 3 persons will be recommended with an additional 2 for each additional vacancy in a court. So for example, if there are 3 appointments to be made to the High Court, we can expect 7 names in total to be recommended.

The Commission however may recommend fewer than 3 persons in some circumstances, for example where less than 3 eligible persons apply, or where the Commission cannot recommend 3 or indeed cannot recommend the additional numbers for more than one vacancy. The Minister will be informed of the names of all of those persons who have applied to the Commission. The government of course will not be able to appoint from a list of persons where there is no recommendation but I believe the Minister for Justice should have a clear picture of the interest there may be in a given role, and an understanding of the diversity of persons making applications.

Having reviewed the matter I have decided that there is no necessity for a special ‘top level’ committee to advise Government on Chief Justice or any other of the highest ranking judicial positions. So it is the Commission who will deal with all recommendations for all posts here or abroad, from the District Court right up to the top of the judicial system. That is the best approach in my view.

There is an important Commission function stipulated under Part 5, of preparing and publishing a judicial selection statement. That statement will bring together both the selection procedures that the Commission will use to select and recommend persons, and the requisite skills, attributes and knowledge that the Commission will adopt in determining those persons who are most suitable for appointment as judges.

The Bill makes particular provision to strengthen how courts are positioned to deal with the needs of those wishing to conduct their business in the Irish language. Under section 56, the Commission shall consult with the Courts Service about the needs of users of the courts with respect to proceedings being conducted in the Irish language and may request the Courts Service to produce a report in the matter. The Judicial Selection Statement must, in setting out the knowledge and skills required for judicial office, specify how these take account of the needs of such users of the courts.

Section 61 is a key provision – it requires the Commission to monitor and review, among other things, the effectiveness of the procedures set out to achieve the objectives of gender balance and diversity among the judiciary and Irish language needs in court proceedings, and to report to the Minister in the matter.

Other key reforms include that no person should be recommended without being interviewed, and section 46 provides accordingly. The Bill also sets out a requirement that those seeking appointment must have undergone continuing professional development education and training programmes. These are important changes.

Part 6 of the Bill expands eligibility for appointment, in section 63, so that for the first time service as a judge of the District Court will reckon as qualifying service for appointment as a judge of the High Court . Legal academics working in specified educational institutions become eligible for the first time for appointment as a judge of any court, as do barristers in employment, that is, practising barristers as now to be defined for this purpose in line with the definition contained in the Legal Services Regulatory Act 2015.

The Bill also streamlines the process for assignments of District Court and Circuit Court judges in Part 6.

Finally, I would say that this reform is a comprehensive and positive one. I see it as a key element of overall judicial reforms, complementing what has been achieved under the Judicial Council Act 2019, and contributing to the modernisation of the courts system. It is in fact a complete overhaul of the system put in place in the law all of 27 years ago. The Joint Committee pre-legislative scrutiny deliberations and outcome were very helpful and constructive. I would like to thank Deputy Lawless and the Committee and other contributors for that.

Ongoing implementation of civil justice reforms - such as the work of the Judicial Council, an enhanced family justice court system, and work that is being done in the area of Judicial Planning - will improve the efficiency and outcomes of the administration of justice in our courts in the time ahead of us. We are moving to introduce independent oversight of professional legal education for the first time, with a commitment to remove the barriers which exist to people who want to become solicitors and barristers. I will also shortly bring to Government an action plan to implement the 90 recommendations set out by the review group chaired Mr. Justice Peter Kelly to improve the civil justice system. The government’s action plan will commit to reform in all areas of civil justice including litigation costs, case delays and access to services and legal aid, with our objective being to make the civil justice system more efficient and easier for people to access.

Bringing the judicial appointment process up to date as part of these reforms and ensuring it is fit for purpose will make a real difference.

I am looking forward to your contributions in the course of our debate, and would be happy to deal with any aspect of this reform that Deputies wish to address today and indeed subsequently.

I commend the Bill to the House.