Dáil Éireann

DÁIL ÉIREANN AN COMHCHOISTE UM DHLÍ AGUS CEART JOINT COMMITTEE ON JUSTICE Dé Máirt, 15 Meitheamh 2021 Tuesday, 15 June 2021 Tháinig an Comhchoiste le chéile ag 3.30 p.m. The Joint Committee met at 3.30 p.m. Comhaltaí a bhí i láthair / Members present: Teachtaí Dála / Deputies Seanadóirí / Senators Jennifer Carroll MacNeill, Aidan Davitt,* Pa Daly, Vincent P. Martin, Martin Kenny. Michael McDowell, Barry Ward. * In éagmais / In the absence of Senator Robbie Gallagher. Teachta / Deputy James Lawless sa Chathaoir / in the Chair. 1 JJ Business of Joint Committee. Chairman: I thank Senator Davitt, who is substituting for Senator Gallagher. He is welcome. His being here is much appreciated. We have received apologies from Senators Gal- lagher and Ruane. Deputy Niamh Smyth is at another meeting but she may be able to join us later. In the event that she is not able to join, she sends her apologies. General Scheme of the Judicial Appointments Commission Bill 2020: Discussion (Re- sumed) Chairman: The purpose of this meeting is to resume our engagement on the general scheme of the judicial appointments commission Bill 2020. We are engaging with stakeholders who made written submissions on the general scheme. This is the second instalment of our engagement on this matter. We had a previous engagement about four weeks ago with a number of other witnesses. I thank Deputy Carroll MacNeill for chairing that session in my absence. She is our in-house expert on the topics involved and I thank her for stepping into the breach. She is also the Vice Chairman of the committee and has a particular expertise and interest in the matter. Today’s witnesses are appearing virtually before the committee from outside the Leinster House precincts. As per the current fashion, we are holding remote sessions and that is working well on a practical level but there are some limitations. I welcome the witnesses to the meeting. We are joined by Mr. Liam Herrick of the Irish Council for Civil Liberties. ICCL. Mr. Herrick is welcome. His organisation is becoming familiar to the committee and I thank him for his continued input. We are also joined by Ms Gemma McLoughlin-Burke, also from the ICCL. I thank Ms McLoughlin-Burke for attending. She is a procedural rights fellow at the ICCL. We are also joined by Mr. Kevin Condon, a principal officer from the civil legislation unit in the Department of Justice. The Department’s representatives regularly attend and participate in our meetings. I thank all involved for being here. I invite witnesses and members to make sure they unmute their devices when they are ad- dressing the committee so that we can capture the sound. I ask members and witnesses to mute their devices while not contributing to avoid picking up background noise or feedback. I also ask that they use the raise hand function when they wish to contribute. Before I invite the witnesses to deliver their opening statements, I advise them of the follow- ing regarding parliamentary privilege. All witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of a person or entity. Therefore, if statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. For witnesses attending remotely outside of the Leinster House campus, there are some limitations to parliamentary privilege and, as such, they may not benefit from the same level of immunity from legal proceedings as a witness who is physically present in the committee room would, and I ask them to be mindful of that. Members are reminded of the long-standing parliamentary practice to the effect that they 2 15 JUNE 2021 should not comment on, criticise or make charges against a person outside of the Houses or an official either by name or in such a way as to make him or her identifiable. For members who are participating remotely, I offer the usual advice about keeping their devices on mute until they speak. They might have their cameras switched on unless they need to turn them off and be mindful that we are in public session. There is the procedural privilege requirement that because of the constitutional requirement as interpreted by the Houses of the Oireachtas that members must be physically present within the confines of the place, namely, Leinster House, a member cannot participate from outside Leinster House in this session or, indeed, any similar sessions. Finally, I remind members that the clock is as always against us. We have two hours for the session. That is a decent period but if we run up against the clock, we have a strict cut-off point because of Covid limitations. I ask members and witnesses to adhere to the subject matter because I will not be able to let the meeting stray too far off the agenda. The format of the meeting is that each witness and or organisation will be invited to make an opening statement of approximately five minutes. Once the opening statements have been delivered, I will call on members of the committee to put their questions or comments to the witnesses and the meeting. Depending on the time, there may be an opportunity for a second such round. Effectively, we will have opening statements from the witnesses, we will have questions and comments from members, and we might do one or two rounds depending on time. As I said, the duration of the meeting is limited. I will move on to the witnesses. I will begin with Mr. Herrick, who has been with us before and who is very welcome back. I am delighted to have him with us again. Mr. Herrick has five minutes in which to make his opening comments. Mr. Liam Herrick: I thank the Chairman. I thank the committee members for inviting us to be with the committee today. As the Chairman has already indicated, I am joined by my col- league, Ms McLoughlin-Burke, who is procedural rights fellow with the ICCL. As members of the committee will know, the ICCL is an independent human rights organisation which has played an active role in public discourse on matters of law, policy and human rights since its foundation in 1976. In particular, our perspective is to ensure that Irish law and practice is compliant and meets the standards of the constitutional rights and the rights set out in international human rights law. Our founders include the late Kader Asmal, professor of law at Trinity College Dublin, the late Mr. Justice Donal Barrington, a member of the Supreme Court, and Mary Robinson, former President of Ireland and UN High Commissioner for Human Rights, and the administration of justice has been a particular priority issue of the ICCL in its work. In 2007, we published a report, Justice Matters, which was a comprehensive analysis of the issues of independence and accountability with regard to the Irish judicial system and we have made a number of submissions on the question of judicial reform over recent decades. The judicial appointments process in Ireland has been a point of contention and controversy in recent years and the ICCL believes that a deficit in formality and transparency in the system has impacted on public confidence in the Judiciary. In that context, we strongly welcome the proposals in the proposed Bill to introduce clear and transparent criteria by which appointments would be made, and we share the Government’s stated objective of promoting diversity and en- suring that the Judiciary is one which is truly representative of the people of Ireland. Although the ICCL recognises that the proposed Bill marks a significant improvement on the preceding appointment process, we are concerned that some of the provisions fall short of international 3 JJ best practice. In preparing our submission on the proposed Bill, we relied on and referred to international standards derived from a number of treaties, including international human rights treaties, the European Convention on Human Rights and the European Union Charter of Fun- damental Rights. Sorry, I believe there might be somebody speaking. Chairman: I wonder if all of those not currently contributing could mute their microphones. There is interference coming through. I apologise to Mr. Herrick for interrupting. Mr. Liam Herrick: I thank the Chairman. We have also relied on the UN basic principles on the independence of the Judiciary, the Council of Europe recommendations on the independence and efficiency and the role of judges, the European Charter on the statute for judges and the International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors. There is a wide range of international standards from which to draw and which can inform the legislation. On the question of independence and who should constitute the appointing or nominating body, the current proposals recommend that the Chief Justice, two members of the Judicial Council and the president of the court in which the vacancy arises will form part of the commission. In line with international best practice, the ICCL recommends that the three suggested judicial members of the Commission should be elected by their peers in order to ensure the strongest possible transparency and independence. The Judiciary must be representative of the society over which it adjudicates.

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