Speech
Judicial Appointments Commission Bill 2022, Second Stage, Seanad Éireann, 5 October 2022
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"Thank you a Chathaoirleach
Senators, I am very pleased to be here in the House today to present the Judicial Appointments Commission Bill 2022 which provides for fundamental reform of the judicial appointments process.
We have a strong record of judicial excellence and independence - we are indeed well served by the judiciary and it is important to acknowledge this. It is important also that we review our legislation to ensure that it continues to be fit for purpose. The 1995 Courts and Court Officers Act introducing the Judicial Appointments Advisory Board was a significant reform. In line with a commitment in the Programme for Government, we are now proposing to establish a new Judicial Appointments Commission. The enactment of this legislation will enable the continued appointment of excellent judges which are a cornerstone of a strong, independent judiciary
The Bill will allow for the creation of a new Commission to replace the Judicial Appointments Advisory Board and it will recommend persons for appointment as judges by the President on the advice of the Government under the Constitution. It will also recommend persons for nomination by the Government to international courts outside the State.
The Bill provides for a nine person Commission with a wide remit to select and recommend persons for appointment and to develop new modern procedures for selection and to publish the requirements for judicial positions.
The Bill introduces a new recommendation and appointments process and ensures that judicial selection is conducted in a modern, open and transparent way by an independent Commission. The Bill will underpin the principles of meritocracy and independence – it provides for a merit based system of selection and that the Commission will be independent.
An independent judiciary and the efficient and effective administration of justice are both fundamental elements of the rule of law. This independence is important in ensuring public confidence in the courts to uphold the law. It brings social and economic benefits and allows people to be assured that when their rights are infringed or when the duties of other parties need to be enforced, the appropriate response will be taken in our courts.
The Bill 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 as well as recommendations of the Council of Europe’s Committee of Ministers.
Perhaps the most important aspect of the reforms is that the new Commission becomes the single focus and means for the selection and recommendation of persons for appointment to judicial office. It will bring together the disparate existing arrangements –
- taking over the current mandate of the Judicial Appointments Advisory Board,
- selecting serving judges who apply for higher office which is outside the JAAB remit, and
- incorporating the existing roles of the Ministers for Justice and for Foreign Affairs in selecting persons for nomination to courts outside the State.
What this means is that the principles that are applied to selecting and recommending persons for judicial appointment under this Bill, such as transparency and the open application process, are applied in all cases.
This legislation provides a single process for the appointment or nomination by the government to judicial office. No other process will operate other than what is proposed under the Bill. All ‘promotional’ appointments to any judicial office, including as President of a Court or as Chief Justice will be under the Commission’s selection and recommendation remit.
The focus is also on nominations to the Court of Justice, General Court, European Court of Human Rights and International Criminal Court and I wanted to incorporate these judicial positions in the statutory scheme and Commission mandate. The Bill therefore will allow for better consistency between domestic and international judicial appointments processes.
The JAAB template and remit under the Courts and Court Officers Act will change markedly - an application process, clear qualification and eligibility criteria, testing and interview procedures, requirements relating to training, and a restricted list of 3 recommendations to Government will apply. The Bill provides that a person cannot be appointed by the Government without a recommendation by the Commission, nor can a person be nominated for appointment or election to the specified international courts without being recommended by the Commission.
The Bill will ensure that the system is fit for purpose and we should rightly aim to put in place a world leading model that has the objectives of serving the public and of further supporting an efficient, fair and effective justice system in which the public has confidence. I am confident the Commission will achieve this goal through the selection of candidates for judicial office through fair and open competition from the widest range of possible candidates.
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 since its inception some 25 years ago. I would like to thank the Chief Justice and his predecessors, and all of the JAAB members for their commitment over that period. The new Commission is also to have an equivalence of judicial and lay members, which I am satisfied is the best arrangement taking into account International standards and best practice in other jurisdictions. Lay members will be appointed through open competition – selections are to be made by the Public Appointments Service - and they will bring a wide range of expertise and knowledge into the selection process. The Commission will have no members of the legislative branch or the executive branch of government in its voting membership."
Part 1 of the Bill deals with interpretation, including some key definitions and other standard introductory matters.
Part 2 provides for a new Judicial Appointments Commission , including arrangements for its establishment. Section 9 provides for the membership of the Commission comprising the Chief Justice as Chairperson, 4 judicial members, 2 of whom will be nominated by the Judicial Council and 4 lay members appointed by the Minister. The Attorney General is a member in a non-voting capacity. The Attorney General is a constitutional office holder who has an important role in upholding the independence of the judiciary.
The Courts and Court Officers Act 1995 provided for 3 lay members out of a total membership of 10; later 3 out of 11 when the President of the Court of Appeal became a member on the establishment of that court. I believe that enhanced outside expertise which can be provided through lay involvement will be an important addition to the Commission . Lay members will bring knowledge and experience of the courts, the justice system, business, human rights and corporate governance.
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, it will be the case that when, for example, recommendations for appointment to the High Court are in question, it will be the President of the High Court who will become a member of the Commission instead, for that purpose.
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.
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.
Section 10 of the Bill provides for the two functions of the Commission; firstly the selection and recommendation to the Minister for Justice of persons for appointment . For the international courts, recommendations concerning nominations to the Court of Justice and the General Court will be made to the Minister for Justice and nominations of persons for election to the European Court of Human Rights and the International Criminal Court to the Minister for Foreign Affairs. The second function concerns the matters to be dealt with under Part 5 – the preparation and publication of a judicial selection statement, which of course supports the function of making recommendations.
A number of sections can be highlighted: section 17 provides that Commission meetings or meetings of a Committee may be held remotely which I think is an important facility for the body to have.
Sections 22 and 23 are important accountability provisions - in the first case the Director giving account to the Public Accounts Committee on the accounts and the Commission’s use of resources and in the second case being accountable for the general administration of the Commission to other Committees of the Oireachtas.
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 complement 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.
Diversity in this context is in some respects a more complex and wider reaching issue than the Commission can directly affect. However, I would anticipate that in line with these objectives, the Commission will be working with partners to break down barriers , increasing the diversity of the eligible pool of applicants, and encouraging and supporting applications for appointment that would see progress in increasing diversity.
Part 3 provides for the establishment of a Judicial Appointments Commission Office to be under the management and control of the Commission and subject to the direction of the Director of the Office to be appointed by the Minister under section 36.
Part 4 provides for the recommendation process and commences with section 39 which provides that the Commission’s recommendations will be based on merit.
Subject to that, 3 key objectives are prescribed that the Commission shall take account of to the extent feasible and practicable which are that membership of each court should
- comprise equal numbers of male and female members
- reflect the diversity of the population
- include a sufficient number of judges with proficiency in the Irish language to meet the needs of court users.
The Bill will give the task of selecting and recommending persons for 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.
Section 40 specifies the qualification requirements for appointment and nomination and now includes some technical changes made by Ministerial amendment in the Dáil to refer, in the case of nominations to the Court of Justice and the General Court , to the requirements of the Treaty on the Functioning of the European Union.
Under Chapter 2 the Commission shall issue invitations by advertisement for the making of applications for appointment or nomination to judicial office, and a request to do so may be made by the Minister for Justice or indeed the Minister for Foreign Affairs in respect of the European Court of Human Rights and the International Criminal Court.
Section 43 makes clear that any person wishing to be considered for appointment or nomination must apply to the Commission, and such application shall be made only in response to an invitation issued by the Commission. Section 45 provides for recusals from the Commission where a judicial member or the Attorney General has made an application to the Commission, and for the replacement of a judicial member who has so applied, on a temporary basis. Section 46 provides that the Commission shall not recommend a person for appointment or nomination if he or she is not eligible, among other conditions, and unless the Commission has interviewed the applicant.
Key elements of the process will be a requirement for interviews to be carried out and making training and continuous professional development mandatory for those seeking to be appointed to judicial office in the State.
Section 47 deals with recommendations for appointment to judicial offices in the State and provides that the Commission shall recommend 3 persons for a vacancy and an additional 2 persons for each additional vacancy. The Commission shall recommend less than the prescribed number, where it cannot recommend that number, having regard to the suitability of applicants or to the number of applicants. The Commission shall inform the Minister if it cannot recommend any person, and provide reasons in the matter. All names of applicants shall be forwarded to the Minister.
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 other information about the process including an understanding of the diversity of persons making applications.
Similar arrangements apply under section 48 in respect of recommendations by the Commission for nomination to judicial offices outside the State.
Under the 1995 act, it is a minimum of 7 recommendations that is made, not including expressions of interest from serving judges. 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.
Section 51 provides that only recommended persons shall be considered for appointment by the Government, and this applies also under section 52 in respect of nominations outside the State. So for a given appointment only 3 names will be submitted to Government, assuming the Commission can make 3 recommendations, and Government choice is confined to those 3 persons. 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.
Section 54 provides for notice of appointment to judicial office in the State to be published in Iris Oifigiuil, while section 55 provides that the Minister shall provide an annual statement to the Houses of the Oireachtas concerning all appointments to judicial office in the State and elections outside the State where the Minister , or the Minister for Foreign Affairs made the relevant nominations.
Part 5 provides for the preparation and publication by the Commission of a judicial selection statement, and makes detailed provisions in respect of consultation in the matter. The selection statement comprises a statement of requisite knowledge, skills and attributes under section 58 and a statement of selection procedures under section 59.
Under section 57, the statement shall be provided to the Minister within a period of 15 months from the commencement of the section, which period may be extended by the Minister by 6 months. The Commission is required from time to time to prepare revised statements for the purpose of replacing the initial statement and to publish the statements on its website.
The statement of knowledge , skills and attributes will be referenced against criteria set out in section 58 including relevant treaties, conventions and statutes with respect to judicial office outside the State and relevant knowledge and experience at the different court levels in the State. The requirement to have undergone particular education and training programmes, or to have undergone judicial training is set out in section 58.
Section 59 sets out criteria for best practice selection procedures which are to be developed by the Commission including procedures for testing and interviews, and references, in the case of offices outside the State, to the relevant requirements set out by the relevant institutions.
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. Recommendations must take account of the need to have a sufficient number of judges with a proficiency in the Irish language, under section 39.
Part 6 of the Bill expands qualifying grounds 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.
Section 67 provides that the Courts Service shall advance amounts for the purpose of expenditure by the Judicial Council from voted funds, and section 24 provides that the Courts Service shall advance funds to the new Commission , as determined by the Minister.
Part 7 in section 68 provides for the dissolution of the Judicial Appointments Advisory Board .