Some Courts legislation mentioned in the Government’s new legislative programme

Lady Justice, Dublin Castle, via Wikipedia

Lady Justice, Dublin Castle, via Wikipedia
As I have pointed out in two previous post (here & here), the Government’s newly-published Legislation Programme (pdf) sets out the legislation that the Government will seek to publish over the next few months. There are eleven priority Bills for publication this session; there are four Bills expected to undergo pre-legislative scrutiny this session; and there are 17 Bills currently on the Dáil and Seanad Order Papers. This will keep the government and both Houses of the Oireachtas busy in the short term.

Of more long term interest are the 97 other Bills at various stages of preparation mentioned in the Programme. The Department of Justice will be especially busy – by my count, it has a mammoth 41 of the 97 Bills. Three, in particular, relate to the Courts:

Judicial Appointments Bill
To replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission
Heads expected by end year 2016

Judicial Council Bill
To promote excellence in the exercise by judges of their judicial functions and to provide effective remedies for complaints
about judicial misconduct including lay participation in the investigation of complaints
Heads approved, drafting at an advanced stage

Juries Bill
To reform the law relating to juries
Proposals under consideration

There doesn’t seem to be a Brief for the Minister on the Department’s website, as there was for the incoming Ministers for Jobs, Enterprise and Innovation (which I discussed here; follow-up here), and Education and Skills (which I discussed here; follow-up here). However, that is unsurprising, as there was no change of Minister; but it does mean that there is very little to go on as to the direction in which these three Bills will take. Nevertheless, the first two are long promised, and much is already known about them; the third is more recent, and rather less heralded.

First, the Judicial Appointments Bill. The Judicial Appointments Advisory Board (JAAB) was established by Part IV of the Courts and Court Officers Act, 1995 (also here). An excellent description of the position that obtained before then is provided in Philip Bartholomew The Irish Judiciary (IPA, Dublin, 1971). And an excellent summary of the context and operation of the JAAB is provided by Dermot Feenan “Judicial Appointments in Ireland in Comparative Perspective” (2008) 1 Judicial Studies Institute Journal 37 (pdf); he concluded that

If reform of judicial appointments is to be pursued in Ireland it appears that the most appropriate model would be one that necessarily combines the constitutional requirement for government advice to the President; with a reformed process which draws out the legitimate role for elected representatives in selection, and which is based on fairness, transparency, accountability, and a commitment to representativeness and diversity.

Replacing the JAAB with a new Judicial Appointment Commission promised in both the Confidence and Supply Arrangement for a Fine Gael-Led Government entered into between Fine Gael and Fianna Fáil and the Programme for a Partnership Government. Since then, at the launch of Dr Jennifer Carroll McNeill‘s new book on The Politics of Judicial Selection in Ireland (Four Courts Press, 2016), An Taoiseach Enda Kenny TD said that the “Government is ultimately seeking to reform the judicial appointments process to ensure it is transparent, fair and credible”; and he provided an outline of the proposed Judicial Appointment Commission:

At its core, this book is a defence of the basic principles of democracy – elect leaders in free and fair elections, then allow the law-making majority that is elected to make laws and decisions on behalf of the electorate. Included in those decisions are the selection of judges and the selection of any system for choosing judges, and any changes to that system. …

The area of reform of the Judicial Appointments process is one .. which the new Partnership Government plans to address.
A significant review of the judicial appointments process is currently underway in the Department of Justice. The Programme for Partnership Government outlines our intention to replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission. The new structure will include

  • a reduction in its membership,
  • an independent chairperson selected by the Public Appointments Service and approved by an Oireachtas Committee, and
  • a lay majority including independent people with specialist qualifications.

Dr Carroll McNeill’s book is based on her 2015 Basil Chubb Prize-winning PhD on Institutional Change in Judicial Selection Systems: Ireland in Comparative Perspective (UCD). John Burns in the Sunday Times described it as “intriguing”. Ruadhán Mac Cormaic in the Irish Times picked up on two main themes of the book. First, lawyers’ personal ties to key decision-makers in government are a more significant factor in judicial appointment than political affiliation. Second, the JAAB’s unilateral change of policy to send the government long lists of names, excluding only those who did not meet minimum eligibility requirements, dramatically widened government’s room for discretion. Writing in the Irish Times on the occasion of the publication of her book, Dr Carroll McNeill argues that this “crippling change” needs to be undone, and that significant improvements are urgently required to enable the advisory board to function optimally, and she welcomes the government’s commitments to reform the whole process of judicial appointments. Welcoming its publication in a review in the Irish Times, Prof David Gwynn Morgan commented

This book, then, is a thorough and fair treatment, packing in a lot of new and useful information in a field which was crying out for it. It is also timely and so is likely to influence the necessary changes, which seem to be on the way.

In principle, these are very welcome developments. However, I have said many times on this blog (eg, here, here, here, & here), I hope that the occasion is also taken to modernise the criteria for appointment.

Second, the Judicial Council Bill. This has been so long in the gestation that the Chief Justice has recently said that its establishment is “imperative”.

Thrid, the Juries Bill. In a speech in the Seanad on 18 June 2015 by then Minister of State Simon Harris TD on behalf of the Minister for Justice and Equality, Frances Fitzgerald TD, replying to a statement by Senator Colm Burke on the need to introduce a scheme of reimbursement for expenses incurred by people called for jury service. The Minister’s speech referred to this issue, and continued

The Law Reform Commission Report on Jury Service [pdf | html] which was published in April 2013 contains 56 recommendations covering a broad range of issues relating to jury service. Chapter 9 of this report covers recommendations on jury compensation and expenses, including an introduction of a modest flat rate daily payment to cover the cost of transport and other incidentals involved in jury service and these issues are being fully considered in the Department. Some of the recommendations in the Law Reform Commission’s report have cost implications and these recommendations require careful evaluation in the current economic climate and are currently being considered in the context of a Juries Bill which is included in the Government’s Legislation Programme and will be brought forward in due course.

All in all, if the Department is able to progress these three Bills, the administration of justice in Ireland will greatly benefit.