It is essential that a proposed new commission for appointing judges has a lay majority and a chairperson who is not a judge, Tánaiste and Minister for Justice Frances Fitzgerald has said.

Members of the judiciary have expressed concerns about the creation of the proposed system but Ms Fitzgerald said it was not the Government’s intention to suggest “any distrust in the manner in which our senior judiciary has conducted the recommendation process over many years”.

The proposed new regime would see the Chief Justice being a member of the commission but not its chair, the Tánaiste told the Oireachtas Joint Committee on Justice and Equality.

Fianna Fáil’s Jim O’Callaghan, a senior counsel and his party’s justice spokesman, told the committee no one would suggest that the Taoiseach should be on a committee but not be its chairman, as this would be seen as disrespectful to the office.

The Government’s suggestion that the Chief Justice be on the commission but not be its chair was disrespectful to the office of the Chief Justice and “consistent with the attitude of disrespect” which the Government had to the judiciary, he said.

The only reason the suggestion was being made was that it was agreed with Minister for Transport Shane Ross at the time the Government was being formed “when Fine Gael would have agreed to drain the Shannon to get into power.”

Mr Ross sought to have the creation of a new system for appointing judges, involving a lay majority, included in the programme for partnership agreed between his Independent Alliance and Fine Gael.

Ms Fitzgerald said she was not being disrespectful towards the judiciary. “Nothing could be further from the truth,” she said.

Picking ‘mates’

Mr O’Callaghan said the Government was saying the heads of the five courts – District, Circuit, High, Court of Appeal and Supreme Court – should not all be on the commission “because they will pick their mates.”

Ms Fitzgerald was appearing before the committee to discuss the general scheme for the Judicial Appointments Commission Bill, which may be published as early as next month.

The committee also discussed a Private Members’ Bill from Mr O’Callaghan which proposes a scheme that would have a majority of judges and lawyers, and would see the Chief Justice chairing the new commission.

The response of Sinn Féin and Independent members of the committee indicates that the Government’s proposal, and not Fianna Fáil’s, is likely to be passed by the Oireachtas.

Ms Fitzgerald said getting the right mix for the commission would be “difficult” but she believed it was important that there be a critical mass of non-judicial, non-legal voices on the commission covering a range of expertise and experience. She said that as part of the proposed new Bill, it would be made unlawful for any person to canvass for a person to be appointed a judge.

The judiciary, she said, has indicated it does not agree with aspects of the proposed new scheme, but much of what the judiciary proposed was reflected in the scheme, if not in the manner proposed.

She said she believed the chair should be the “most highly qualified lay person” appointed to the commission, a practise that was not uncommon in other jurisdictions including England and Wales, and Scotland.