Judicial Appointments Commission Bill 2017: Second Stage

Minister for Justice and Equality (Deputy Charles Flanagan)

I move: "That the Bill be now read a Second Time."

I very much welcome the Leas-Cheann Comhairle's message and I am sure it is one that he and any other Members who take the Chair during the course of the debate will be mindful of. I hope the Leas-Cheann Comhairle will not have to remind Members of this House of the issues to which he adverted and I thank him for same.

As the House we be aware, it has been a long journey to this point. My predecessor, the Tánaiste, Deputy Frances Fitzgerald, undertook an enormous amount of painstaking work on the complex matters involved in this legislation, while a process of public consultation was conducted in 2014 by another of my predecessors as Minister for Justice and Equality, former Deputy Alan Shatter. The impartial administration of justice according to law is vital in ensuring that we have a strong and stable modern democracy in this State. The critical and often difficult task that the Judiciary performs at every level of the courts system is central to maintaining this and a key concern is to have a system of judicial appointments that supports public confidence in the administration of justice in our courts. The Bill provides for a number of very substantial changes which I believe represent a defining reform, providing for a modern, comprehensive and fit for purpose system dealing with judicial appointments in this State. For the first time we will have a comprehensive statute providing exclusively for the process of judicial appointments in a transparent way. The Bill represents a unique and modernising approach which has been devised to deal with this complex area of administration so that it is best suited to our needs in the 21st century. In this Bill, I am bringing forward immediate and innovative changes to the judicial appointments structure that has been operating for the past 20 years or so. The Bill also sets up a dynamic mechanism to develop further and embed needed improvements and reforms as the justice and social and economic environments evolve into the future.

Over three years ago, the then Minister for Justice and Equality, Deputy Alan Shatter, set about bringing our system of judicial appointments in line with international best practice. A decision was taken to engage in public consultations and to get the views of stakeholders as to what the best approach might be to devising an improved system. Certain themes were flagged going into that process including the need to continue to protect the independence of the Judiciary; the role of the Judicial Appointments Advisory Board, JAAB; and eligibility issues and the diversity of our Judiciary. Much of the content of the Bill reflects the outcome of that process and the research and policy analysis which followed it in the Department of Justice and Equality. While there are deficiencies in some aspects of the current system, it could not be said to have affected the quality, integrity or diligence of the Judiciary, which has contributed greatly to the success of our modern democracy or, most of all, its true independence. Ireland regularly features very highly on international measures of judicial independence. Judges themselves, through their professionalism and service, have ensured that our Judiciary is held in very high esteem. I want the debate in these Houses over the next few weeks to be appropriately respectful to the judicial branch of Government.

In a moment I will come to the key immediate reforms that I believe will bring real change and a better and more open and transparent process under the terms of this Bill, but first I want to underline the significance of having a commission. Working through a procedures committee established under section 19 of the Bill, the commission will be tasked with a remit to determine quickly in a consultative process new procedures for judicial selection and the skills and attributes required for the job. These procedures will reflect best practice professional selection methods and processes. This will not be a one-off task, however. Under Part 8, the committee will have the ongoing role of reviewing the effectiveness of the selection system as well as the effectiveness of the functions assigned to the commission under this Bill. Real attention to system review and process improvement is at the heart of this Bill, having regard to the best practice judicial appointment model that can be devised and improved over time. That will be an ongoing process and the Bill requires the commission to report to the Minister on this matter.

The current arrangements for judicial appointments embodied in the Courts and Court Officers Act 1995, as amended, represented an important advance by introducing a new independent element to the judicial appointments process. Up to that time, of course, there was effectively nothing in place to guide the function of appointment other than the relevant terms of the Constitution. Article 35.1 of the Constitution provides that judges are appointed by the President and under Article 13.9 such power is exercisable and performable only on the advice of the Government. That is not changing, obviously, but it is a matter for the Oireachtas to legislate for the systems and procedures that are needed to support decision making under this constitutional prerogative.

It was an important step in 1995 to bring lay persons into the role of identifying persons suitable for appointment to judicial office and to bring in a more consultative and transparent approach to the process of appointing judges. While I am conscious that I am speaking with the benefit of over 20 years' hindsight, reflection on the experience can only lead one to conclude that the arrangements were limited in a number of respects. The Bill before the House brings the system to a new level of openness and effectiveness. The limitation of the scope of the JAAB to first-time judicial appointments only, for example, meant in effect that the new procedures were concerned with just one dimension of the judicial appointment process. They did not address the elevation of serving judges from one court to another which is an option that is exercised quite regularly when it comes to appointing persons to our superior courts. When a serving judge is the subject of judicial appointment, the JAAB has no role, although it may have recommended practising lawyers for the same position. Where it has a role, that is in recommending persons other than serving judges for appointment, it must recommend at least seven persons, if it can, to the Minister. If the vacancy in question is as president of any court or as Chief Justice, it has no role whatsoever. It is also the case that no dedicated resource was assigned in the legislation to support the JAAB. Over the years, the Courts Service has provided the necessary financial, technical and administrative support to the board and, in passing, I want to acknowledge this invaluable contribution to the process.

It is not surprising that these limitations were the overall focus of what was effectively a critique of the current system in submissions made by stakeholders to the public consultation process. Addressing these identified limitations and broadening the vision of what the commission can be is really what this Bill is all about.

However, it is perhaps not overly instructive to emphasise limitations in the current statutory arrangements. After all, it is well over 20 years since that legislation was conceived. It was the first time the Government function in the matter was supplemented by an independent element in the process, and it was the first opening of the process to any scrutiny. At the time, it was also an important move forward.

The justice system now operates in a modern administrative environment. More transparent and participative approaches are apparent in public policy decision-making models both here and on the international stage, and so we will move to a radically more open, transparent and independent system under the Bill. Instead of the Government dealing with multiple recommendations for a particular judicial post, as can happen now, combined with having before it the names of potentially any number of serving judges, it will now, under section 42, have only three names before it, all coming through the process of the new commission. This is a significant change, which is consistent with best international practice.

The Government, under the Constitution, will continue to retain the discretion to appoint a person to judicial office but will, as section 48 provides and as the 1995 Act provided, have to first consider the recommendations made to it. The names coming from the new commission will, in turn, have come through professional and carefully designed selection processes which will be transparent at all times. It is worth noting that under this Bill, it is the qualifications, experience and character, not only of legal professionals and, in a new provision, legal academics, but also of judges themselves who wish to serve in a higher judicial office that will be the subject of assessment.

The three most senior judicial posts, namely, those of Chief Justice, President of the Court of Appeal and President of the High Court, will, under section 46, be subject to a variation of the general process. In respect of these three judicial positions only, the commission will forward the names of persons who have expressed an interest to a new senior judicial appointments advisory committee comprising the Chief Justice, the lay chairperson of the new commission and the Attorney General, and this committee will recommend three names to the Government. The scheme had provided that the Minister would also be a member of the committee. However, following consultation and reflection on this point, membership of the committee will now be as provided under the Bill.

The Bill provides the new commission with a very substantial and definitive function in respect of the selection of our Judiciary into the future. Reflecting today's governance and participation models of public policy decision-making, the new commission will have strong lay representation. This legislation is largely about getting the balance right between different contributions and interests. There has been much discourse, and I have no doubt there will be much more in the course of this debate, about the numbers of judges involved in the selection process and whether judges should form a majority in any body set up for this purpose. It is worth repeating a point made by the Tánaiste when the scheme preceding this Bill was undergoing pre-legislative scrutiny in January. She said:

Judicial selection is not part of the judicial function. The judicial function is to apply the law, interpret the Constitution and defend it.

Section 12 provides for a new commission of 13 members. This is an increase of two on the current advisory board numbers and an increase of two in the membership, as provided for in the general scheme of the Bill, that is, the model discussed at pre-legislative scrutiny stage in committee in January last. I want to be clear about the status of the Government programme commitment to reduce commission numbers. It has not proven possible to do this while at the same time legislating for the most substantive related commitments. It would not be operationally feasible to reduce numbers while providing for a lay majority and lay chairperson and, at the same time, retaining the Attorney General and legal professionals who are indispensable, as well as having the most appropriate level of senior judicial involvement in the structure.

On the issue of judicial input to selection and recommendation, this is perhaps the more substantive variation in the Bill from the terms of the general scheme. Section 12 provides that the commission will have 13 members, consisting of a lay chair, the three most senior judicial officeholders, the Attorney General, one representative each of the solicitor and barrister professions and six ordinary lay members. I am persuaded that the Chief Justice and presidents of the Court of Appeal and High Court should be full commission members, directly involved in all appointments to the courts over which they preside and, in the case of the Chief Justice, to all courts. These most senior judicial officeholders will also be full members of the commission for the purposes of discharging other critical functions under the Bill.

I would be the very first to acknowledge that the Judiciary has very critical and indeed determinative expertise in terms of understanding and advising on the legal, courtroom and analytical aspects of what it takes to be a successful judge and that this will, in turn, be complemented by the specific additional legal sector qualities which the Attorney General and representatives of the legal profession will bring to the table. Clearly, one cannot be appointed as a judge unless one has the necessary foundation, legal and related knowledge and skills to do the job with excellence. However, the non-legal people, carefully and professionally selected by the Public Appointments Service, who will now be part of these selection processes as a very substantial cohort, will also bring a range of necessary additional life, user and citizen perspective, governance and selection expertise into the mix. I am sure that, in the new arrangements, the participating judges, those with non-judicial legal experience and those with other areas of expertise and experience will work closely and respectfully together.

Staying on the subject of judicial representation in the appointments process, Deputies will be aware that there is some concern among senior members of the Judiciary about the implementation of the programme for Government commitments to appointing a lay chairperson to the commission and having a majority of lay members. The Government has consulted in depth the representatives of the Judicial Appointments Review Committee, the senior Judiciary group tasked with contributing to the change process. Substantial and significant elements of the legislation are consistent with the informed views of the Judiciary. For example, the move to only three recommendations, the inclusion of all appointments in the new process, including serving judges, the dedicated resources provided, the provision for selection and recommendation to be based on merit, new accountability arrangements, a prohibition on canvassing and other important elements of the Bill reflect key tenets of the Judiciary's position on these reforms.

Deputies will no doubt be aware that judges are opposed to having a majority of lay persons on the commission and a lay chairperson presiding over a commission of which the Chief Justice is a member. A particular concern expressed in that regard is that all five court presidents, including the Chief Justice, should be directly involved in the selection and recommendation of persons for appointment, as is the case in the Judicial Appointments Advisory Board, JAAB, process. On careful consideration, having listened to the views of the Judiciary on the matter and reflecting on the point in the context of the pre-legislative scrutiny debate, it appears to be desirable to meet this particular point. Rather than a consultation-type arrangement with, for example, the President of the District Court, as the ex officio arrangement under the general scheme would have provided, a direct decision-making role for each president should be retained as in the Judicial Appointments Advisory Board process. Sections 11 and 13 provide that the commission shall act in the form of a relevant 11-person committee, one for each of the five courts.

In the modern environment of administration, in a new body and, moreover, one that will exercise much more decisive and definitive functions than its JAAB predecessor, an adequate and cost-effective professional management structure is essential. The new office to support the commission and the new position of director are central parts of this, but there is also a need to lead the commission in the professional administrative and recruitment space. The carefully constructed qualifying criteria under section 15 that underpin the appointment of the chairperson to be recruited by the Public Appointments Service will require the person to have board management and corporate governance expertise, among other things.

In framing the various provisions of the Bill, the Tánaiste was particularly aware of the need to ensure our new system of appointments was as open and transparent as it can be and underpinned by a meaningful set of accountability arrangements. Some examples from the Bill illustrate this. The new commission chairperson will be accountable to an Oireachtas committee. Under section 24, the director will be required to forward reports to the Committee of Public Accounts. The commission will be required to report annually to the Minister. The House will have a role in respect of other openness and accountability matters. Section 64 prohibits canvassing by an applicant or anyone on an applicant's behalf and provides for an offence in the matter.

I have covered the key immediate steps to be introduced under the Bill. I also want consideration to be given to Part 8. This Part is about a progressive approach to reform, allowing for further development of the selection procedures, informed with reference to best international practice and other considerations set out in the Bill. These functions focus on the work of the procedures committee which, under section 19, will be composed of seven members of the commission with a lay majority and lay chairperson.

Section 55 provides for certain essential requirements in the area of judicial competency that must be reflected in the statement. These include an ability to conduct proceedings in a manner that ensures confidence by the public in the administration of justice and the practical considerations that affect the experience of lay persons of the courts system. Another key task of the procedures committee is to review the operation of the published statement.

I have pointed to a number of aspects of the Bill that represent some development of the measures outlined in the general scheme. I have retained as objectives in the Bill that the membership of the Judiciary should comprise equal numbers of men and women and, to the extent feasible and practicable, reflect the diversity within the population as a whole. These matters will, subject to the overriding merit principle, be considered at selection and appointment stage. Deputies will see from section 55 that these matters will also be addressed by the procedures committee.

The last substantive matter I want to mention is the opening up of the eligibility arrangements for appointment to the High Court to District Court judges and legal academics. These matters are addressed in section 35.

I will finish on two points. First, there is a far-reaching and in-depth reform of the judicial appointments system before us in the form of this Bill. I am confident that the measures are required. However, I want to see precisely after five years of its application how effective these developments are in practice. Section 5 requires the Minister to review the working of the legislation and report on the matter to the Houses. Deputies will want to see a full account of its operation. That review will take account of the work of the commission's procedures committee in reviewing matters after two years.

Second, the Government will not wish to leave judicial positions vacant once the commission is established and in the period before the procedures committee develops the statements setting out the procedures and the skills required of candidates. This issue is dealt with in section 63.

I am proposing this Bill as the best approach to ensuring to the greatest extent possible that the quality of our judicial system is maintained to the benefit of everyone in society. It is difficult to overstate how significant these reforms are. Lest there be any doubt about the matter, I wish to make it clear that, in moving from scheme to Bill, we have taken account of a great deal of what the Judiciary has had to say, including on merit, canvassing, the selection of lay candidates, the provisions relating to academics and other matters. What we have not done is move away from the fundamental undertakings as to the composition of the majority and chairperson, which are covered in A Programme for a Partnership Government. I therefore commend the Bill to the House.

Deputies

Hear, hear.

An Leas-Cheann Comhairle

I thank the Minister for observing the 20 minute slot.

Deputy Jim O'Callaghan

I have read this Bill on a number of occasions. It is ill-considered legislation. It is badly constructed. It will not even achieve the objectives that its few promoters within the Cabinet say will be achieved. More importantly, it will have long-term negative consequences for the public. In the opinion of Fianna Fáil, this legislation will have significant detrimental consequences. First, it will damage the quality of the justice administered by our courts. Second, it will politicise the appointment of judges to an even greater extent than currently. Third, it will establish an unnecessary and costly quango that will overcomplicate what should be a simple process of recommending the 20 or 30 people suitable for judicial appointment each year.

I wish to deal with each of these points in turn, starting with why Fianna Fáil believes that this legislation will damage the administration of justice. The Minister and I will agree that the administration of justice is an important role played by the courts under our Constitution. Under Article 34, justice is to be "administered in courts established by law by Judges appointed" under the Constitution and "administered in public". Every day of the week throughout the country, people can go to the Circuit Court, District Court or High Court and see judges, and sometimes juries, adjudicating on disputes between private citizens or prosecutions by the State against individuals. The variety of work that appears before our courts is considerable. It involves disputes between private individuals, criminal prosecutions where we sometimes have the benefit of juries adjudicating on cases, public law issues and, most importantly, claims brought by citizens of this country and others who claim that their rights under the Constitution have been infringed, sometimes by the Government, sometimes by the Oireachtas.

Hearings on these disputes are conducted by judges who have been appointed under our Constitution. For them to adjudicate on them, judges must have a knowledge not just of the statute law that we make in these Houses but also of the Constitution, which is the bedrock of our legal system. They must have a knowledge of the common law. Due to our history, we reside in a common law country where judge-made law forms part of our legal system. It is for this reason in particular that the job of being a judge is one that requires significant expertise. It is not a job that can just be conducted by any person who thinks that he or she can do it based on a belief of what is right and wrong. The law in this country is made by these Houses. It is also present from our Constitution. It is the function of judges and our courts to apply that law. To do so, they must have a knowledge of and expertise in the law.

Like many Deputies, the Minister would not question the importance and significance of the role our Judiciary plays. It has been one of the country's successes since Independence. Since that time, we have been able to establish an independent judicial system, one that stands up against tyranny, whether it be by our elected individuals or Government, and protects the rights of the citizen under the Constitution. Courts are respected because they are independent of the Government and are seen to be fair and impartial. That is a notable achievement, given that most disputes that reach court and a judge are adversarial in nature. In court disputes, there is generally a winner and a loser, so it is a notable success that the public at large has confidence in our judicial system.

Our courts are respected for their impartiality because of the role played by judges once they are appointed. Irrespective of their backgrounds, once they take the oath of office, they recognise that their responsibility is to adjudicate on cases fairly and impartially.

The Leas-Cheann Comhairle will be aware that it is unusual for there to be political controversy in respect of a judicial appointment. It does not happen, and it is good that it does not happen. In recent history, it has only happened on two occasions, the first of which was 23 years ago. As a result of that controversy, the Oireachtas decided that the law in respect of judicial appointments should be changed and the Courts and Court Officers Act 1995 was introduced. It was recognised by everyone in the House, and I assume it still is, that it was the role of the Government to nominate individuals for appointment as judges by the President. There is a great advantage in having Government responsibility for those nominations and subsequent appointments, in that, if people are found to have been inappropriately appointed, the Government is democratically accountable, not just to this House, but to the public, and can be held accountable at a future election.

In many of the functions it carries out, the Government requires assistance and recommendations from people of expertise. The Government cannot be expected to make decisions without being given advice on them. As a result, the law was changed 22 years ago to establish the Judicial Appointments Advisory Board, JAAB, the function of which was to give advice to the Government and recommend to it individuals who were suitable and qualified for appointment to judicial office. The power to appoint and nominate still remained with the Government, but it was an important signal that a statutory body was being put in place that would be able to assess which candidates were suitable for appointment to judicial office.

In 1995, the Oireachtas decided that the JAAB should comprise a number of judges, a number of lay people, an Attorney General and representatives of the legal profession. Currently, the JAAB has 11 members. Of those, five are members of the Judiciary, namely, the presidents of the District Court, Circuit Court, High Court and Court of Appeal and the Chief Justice.

There are also three lay members, an Attorney General representing Government, and two representatives of the legal profession. That balance was agreed to by this House in 1995 because it was recognised that there was a significant benefit in having the advice of judges when it came to recommending individuals for appointment to judicial office. It was also recognised that no one constituency wanted to be given a majority. It was required that there would not be a majority of judges on that board. There were five. It was four at the time they were appointed, but at present there are five out of 11 members. There are two members of the legal profession. There is one member of Government, the Attorney General, and there are three lay members who have an invaluable part in such processes and procedures due to their experience outside of the field of law. There was a benefit to that, which was why this House agreed to it back in 1995.

One of the most negative consequences of this debate to date has been the association of judges with members of the legal profession. It is completely unfair to present judges as being part of the legal profession. I know the Minister, Deputy Ross, has sought to present this to be the case on an ongoing basis. It would equally be very unfair of me to turn around and start referring to the Minister as a member of the stockbroking profession. He is not any longer. He was in the past but being so in the past does not mean he is at present.

Deputy Mick Barry

Once a stockbroker.

Deputy Jim O'Callaghan

Similarly, it is wrong and inappropriate to refer to judges as members of the legal profession. They are not. They are people appointed to office under our Constitution, similar to the offices of the Ministers opposite, except that they take an oath of office to abide by the Constitution.

The proposal contained within the legislation being considered this evening is to change the Judicial Appointments Advisory Board. We are going to set up a new commission. I wish to look at the grounds on which I state this will damage the administration of justice. Under the new proposals, there will no longer be an advisory board of 11 members. Instead there will be an advisory body of 13. Those 13 members will be made up of three members of the Judiciary, down from five; seven lay people, up from three; and we will still retain the Attorney General and the two representatives of the legal profession.

The question I have asked repeatedly, and which has repeatedly failed to receive an answer, is what is the public benefit in reducing the involvement of members of the Judiciary on this board? What is the public benefit of increasing the number of lay members involved in this board to seven? I have asked this repeatedly and I have never received an answer. The Taoiseach referred today to the Medical Council and a number of regulatory bodies having lay majorities. He is absolutely correct. Of course if there is going to be a regulatory or supervisory body which will supervise or regulate a profession it should have a majority of lay members. Most professions apply that at present. This is not a regulatory or supervisory body, however. This is an advisory body. It is put there to assist the Government in identifying the most suitable persons for judicial office. It is there to assist in what I assume is the agreed objective of everyone, that is, to try to get the most suitable and best qualified candidates to apply for judicial office.

The Minister, Deputy Ross, has stated that the objective of this change - the reduction in the number of judges and the increase in the number of lay members - is to depoliticise the appointments of judges in order that they are not misused by parties in government to favour political friends. At the outset, I fully agree with that objective. It has been the case in the past that individuals have been appointed to judicial office because of their political connections. It has been the case in the past that individuals have been overlooked because they have not had political associations. That problem, however, has been exaggerated. When one looks at the performance of the Irish Judiciary it is simply dishonest to say that it is a body which has been infiltrated and infected by an excess of party politics.

As I said, I agree with the objective, but let us look at the method of achieving this objective. In order to get rid of party politics from the appointment process, the Government suggests that we reduce judicial involvement and that we increase lay participation on this advisory board. The real problem in respect of overly political appointments arises at the Cabinet table. We know that from recent events. It is not a problem with the JAAB. It is a problem with what happens at the Cabinet table when individuals try to turn a blind eye, to promote their friends or to be asleep when important events take place.

It is simply wrong for the Government to suggest that to resolve the problem of too much politicisation in the appointment of judges, we need to remove the influence of judges on the advisory board. Does anyone in this House actually think that the Chief Justice or the President of the Court of Appeal, the High Court or the Circuit and District courts have as their objective the recruitment of their party political friends? It is an insult to the Judiciary to say that this legislation is required to depoliticise the appointment of judges. I often think that the role of the president of a court is similar to the role of a school principal. When it comes to the recruitment of a new teacher, all a school principal will want is to make sure that the person hired is hard-working, fair and will do a day's work. I believe that is also the objective of Presidents of the High Court. They have no interest in having party hacks or friends appointed. They want people who are hard-working and who are appointed fairly. One point that has been overlooked is that, if one looks at the proposal being put forward by the Government, by establishing an advisory board which maintains the presence of the Attorney General the Government is ensuring the continued involvement of its interests in the advisory process.

Unfortunately, the argument being used to a large extent in this debate is why would there be opposition to lay people being on a board? It sounds as though it is very transparent, modern and something that this new Government would want to advance. I need to explain there are consequences and a downside to this. This process will result in many unsuitable people being recommended for appointment to judicial office. The advantage of having a judge on advisory boards is that judges are aware, first of all, of the nature of the work which judges carry out in their courts. Second, judges are aware which of the lawyers who appear in front of them would make good judges. Not every good lawyer makes a good judge, but to be a good judge one has to be a good lawyer. The difference in being appointed a judge is that every person who will or has been appointed has a career as either a barrister or a solicitor behind them. Their role in those jobs gives a fairly good insight into what type of judge they will be. If we now have a situation where the advisory board is dominated by individuals who will look at candidates based on paper-based assessment, I do not think they will bring the same insight, knowledge and experience to the board that judges have. We want to ensure that people are appointed who are open-minded, fair, even, balanced and who do not believe a garda just because he is a garda but who decide cases on the basis of the evidence. My fear is that we are now moving to a situation in which we will have a process that is very much paper and interview based. I know many people who would look like they would make excellent judges on paper but would be a disaster if appointed.

Another ground upon which I believe this will not only damage the administration of justice but the authority of the Judiciary is the fact that this legislation requires the Chief Justice to sit on a committee while not chairing it. Could a situation be imagined in which a Member of this House suggested that the Taoiseach be on a Government committee but not chair it? There would be outrage expressed, not just by the Taoiseach's own party in government, but by all Members of this House. That is in effect what the Government is not asking but telling the Chief Justice to do. It is telling her to sit on that committee but that she will not chair it and that she must listen to and be instructed by the chairman of that committee. That is really insulting to the Judiciary.

I could go on for a long time but I wish to get to my second and third points.

My second point is that it will politicise the appointment of judges. The individuals who wish to apply for lay membership of the judicial appointments commission board will, in my opinion, be individuals with their own political agenda. We know that many people in this country have agendas and believe that the Judiciary is not strong enough on crime or is too harsh on crime. We know of people in this country who have agendas in respect of whether they are members of the pro-life lobby or the pro-choice lobby. We know some people believe we should have individuals on the board who are representative of victims of miscarriage of justice. All these arguments will have the effect that individuals with political agendas will apply and in my opinion will be able to get onto this judicial appointments commission.

There will be seven lay members. Former judges are excluded from applying to be members. So we are telling people such as Catherine McGuinness or other distinguished former judges, who would make excellent persons when it comes to advising as to who would be good judges that they should not and cannot apply as they are not wanted. The answer to the question as to why they cannot apply is they were judges and are contaminated. It is deeply offensive to retired judges who have served this country well over the years. I would have liked to have spent more time on that second point.

My final point is that the previous Government came to power in 2011 telling us that it was going to abolish quangos. One of the most straightforward jobs that exists in a statutory scheme is membership of the Judicial Appointments Advisory Board. About 20 people a year are nominated to judicial office. The board meets informally. It has a secretary. The members of the board meet in an office, they look at the applications and they apply names.

Under this legislation we will have not just a judicial appointments commission, but we will have the judicial appointments commission office and the judicial appointments commission director. There will be a mini-empire staffed by individuals who will spend lots of public money on trying to identify the best way for them to spend the public money on trying to identify people suitable for appointment. It is an astonishing waste of money and is wholly unnecessary. We are talking about recommending individuals based on curricula vitae that are submitted for about 20 jobs a year. It can be done very cheaply. It is at present being done very cheaply. Instead we are creating an enormous and unnecessary quango.

This is really bad legislation. Fianna Fáil will be opposing the legislation because we believe it is bad for the administration of justice and bad for the Irish public. It has not been carefully thought out. It is being promoted by one or two members of Government who really do not know what they are talking about.

Deputy Jonathan O'Brien

I welcome the opportunity to speak on the Bill. As has been previously outlined, we will support its passage to Committee Stage. However, we are conscious of the criticisms of this Bill, and I wish to address them in this contribution and outline the rationale for supporting the Bill at this stage.

While we are in favour of this Bill, it is not unqualified support. We agree with Members of the House who have criticised the way in which the Bill has been handled. Confidence in the justice system is contingent on a judiciary which is free from political control or political or other bias. Not only must society have a judiciary that is free from bias, but it must also be free from the appearance of bias. It is essential that we have an independent and impartial judiciary that is representative of the community it serves. A truly representative judiciary would enhance confidence in the judicial system.

It is our view that future judicial appointments should be drawn from a wider pool of qualified candidates that is fully representative of the community in order to eradicate the corrosive and unaccountable system of patronage previously in operation. We are not here this evening to criticise members of the Judiciary - far from it. Our courts are populated by many people with great legal minds who do an excellent job on a daily basis. However, it would be naive to believe some of the commentary that has taken place surrounding the Bill.

We are expected to believe that there is not now, nor has there ever been, any system of political patronage within this jurisdiction. We know that is absolutely not the case. We are not saying that those who are in place cannot do their jobs, but the Bill is concerned with the process of how they get there in the first place. I agree with Deputy O'Callaghan in saying that judges who take that oath are impartial and independent. However, the Bill does not deal with people who are currently judges. We are dealing with the process of appointing judges in the first place. For anyone who thinks that this is a left-wing or left-leaning view, I ask them to consider why we are discussing this in the first place.

There must be a fair and accountable appointment process for the Judiciary which is representative of the public interest. However, there must also be fairness in respect of who gets to nominate members for appointment in the first place. As I have pointed out previously, in the appointment of judicial officeholders there should be no discrimination on any of the prohibited grounds. Indeed, there should be a policy of affirmative action to increase judicial diversity. However, it is beyond the scope of the Bill. The principle of diversity should extend to the scope of those who are lay members of the new commission. Much has been said about how lay members could not possibly be qualified to appoint members to the Judiciary. Aside from this being best international practice, I draw Members' attention to section 15 of the Bill. I will come back to that later in my contribution.

The Council of Europe's Venice Commission has previously recommended the election of a chairperson from among lay members of an appointments body to "bring about a balance between the necessary independence of the chair and the need to avoid possible corporatist tendencies within the council". I reiterate a European body made that recommendation.

There are lay members of judicial appointments bodies in England and Wales, and in Scotland. This is not an abnormal proposal being put forward by the Government. Indeed the Bar Council's submission to the Oireachtas Joint Committee on Justice and Equality in 2016 actually welcomed the participation of lay members in a new appointments process. Its main concern was whether the chair of the body should be a judge.

In April of this year, Nicola Gordon was appointed as lay chairing member to the Judicial Appointments Board for Scotland and the sky has not fallen in on Edinburgh to date.

From listening to some of the commentary one could be forgiven for thinking any random person will have the potential to apply and be considered for lay membership of the commission, which is not the case. Section 15 clearly outlines that the Public Appointments Service will have control of the process of appointing lay members and outlines an extensive range of criteria that need to be met for this to happen. A person must not only be fit and proper but also the Public Appointments Service must have regard to their corporate governance experience, their qualifications, training and expertise, and their knowledge and experience of a range of matters set out in section 15(7), including the operation of the courts; the provision of supports to victims; human rights; equality; processes and procedures for making appointments to public office or senior positions in the public or private sectors; administration qualifications; previous board membership; and governance and professional qualities.

Despite the protests of some Members of this House, this is not particularly radical legislation. The criteria required under section 15 ensure that a smaller group of people than originally expected will actually qualify to sit on the commission as a lay member. I share some concerns with Deputy O'Callaghan on this next point. The people who will qualify under the current criteria will in all likelihood be people who have already served on State boards, commissions and so on.

Many of them will be political appointees and will have gained the expertise needed to apply for a position on the commission. The Public Appointments Service is impartial but it can only proceed with candidates according to the legislation that is implemented in this House. It is for that reason we in Sinn Féin have talked about broadening it out and ensuring that persons who may not be from the traditional background of having progressed through their career aided or assisted by political friends would be considered to sit on the commission on the basis of their ability.

While this Bill is a good start in reforming the systemic problems of cronyism and nepotism that are rife in the senior echelons of Irish society, it is not the radical shake-up that Fianna Fáil make it out to be. The only reason Fianna Fáil think the Bill is radical is because it is so rare for anyone to attempt to amend even slightly the systemic privileging of a particular group of people in Irish society.

Part 8 sets out quite comprehensively the way in which members of the board - lay and judicial - can assess merit, but merit is still the criterion for selection. That is one of the changes outlined by the Minister in his speech from the general scheme of the Bill to the published version of it. Merit is recognised as a stand-alone criterion. That is only subject to an objective that has been included on gender equality. As we all know too well from last week's discussions, the Government is not, and will continue to be not obliged to select from the list given to it. That is the constitutional position. While Fianna Fáil might want to paint the picture that the change will up-end the courts and that we will find ourselves awash with incompetents on the judicial benches, that analysis does not really tally with the reality. No concerns were expressed by Fianna Fáil or indeed Fine Gael for that matter, when it came to the quality of the associates of those parties being rewarded for their loyalty with judicial positions in the past. At least one third of the country's judges have personal or political links to political parties before they were appointed to the Bench. In his contribution Deputy O'Callaghan admitted that there are people who were appointed to the Bench because of their political connections and others were not appointed to the Bench because they did not have those political connections. I do not think it is fair of Fianna Fáil or anyone else to paint us or anyone else who supports the Bill as disrespectful to the Bench when one of the most senior judges in the State - Mr. Justice Peter Kelly, went on the record quite vocally to proclaim how appointments to the Supreme Court were "purely political"-----

An Leas-Cheann Comhairle

I did mention at the outset that we should refrain from mentioning-----

Deputy Jonathan O'Brien

I am just stating fact.

An Leas-Cheann Comhairle

We should-----

Deputy Richard Boyd Barrett

It is in the public domain.

An Leas-Cheann Comhairle

We should respect the separation of powers.

Deputy Jonathan O'Brien

I completely respect the separation of powers.

An Leas-Cheann Comhairle

I thank Deputy O'Brien.

Deputy Jonathan O'Brien

I am just quoting something that is in the public domain. He said that some people who would make excellent judges were "passed over" in favour of others who were not so well qualified. That is a real problem for the courts but, ultimately, the sign-off on appointments will still be a matter for the Government of the day. This Bill will change the procedure so that instead of receiving a list of seven candidates, a list of three will be now brought to the Government. In fact, as far back as 2013, we in Sinn Féin published a Bill with similar objectives on judicial appointments but, unfortunately, it was blocked.

We will seek some amendments to the Bill, especially in regard to the make-up of the lay aspects of the commission itself in order to attempt to address the potential for it to be occupied by former political appointees. We also want to see commitments to ongoing training to be included in the Bill. Our continued support for the Bill will be contingent on how those amendments are received.

It must be remembered that dealing with issues concerning appointments is only one sphere that has to be addressed. We would like to see the removal of members of the Judiciary, as well as regulation of the conduct of members of the Judiciary, addressed as a matter of urgency. We know it cannot be included in this Bill but, nevertheless, we do not want to wait for a crisis-type situation where a member of the Judiciary needs to be removed before dealing with the legislation.

There are no ethical guidelines for judges, who are not subject to the terms of the ethics Acts or codes of conduct for officeholders. There is no requirement for judges to file a register of declarable interests. In fact, they must comply with very little other than provide a tax clearance certificate before being appointed. There is no formal complaint mechanism for the public against a judge for alleged improper conduct. Even Mrs. Justice Susan Denham has said, in public discourse, that the failure to establish a judicial council is affecting Ireland's reputation internationally and is a matter of real concern. A judicial council was first proposed 20 years ago but successive Governments failed to progress it with the urgency it deserves. Following the report of the committee on judicial conduct and ethics in 2001, the then Chief Justice, Mr. Justice Ronan Keane, recommended that there should be an independent statutory based judicial council to regulate judicial conduct, ethics and remuneration. Interestingly, the panel that was suggested in that report to regulate conduct and ethics was proposed to have lay representation on it. The report was welcomed but of course it never went anywhere. It is the lack of monitoring of judicial conduct, along with how judges are appointed and removed - or not as the case may be - that feeds into the idea that the Judiciary and legal profession are somewhat untouchable.

We believe that any legislation of this nature should be completely in line with the UN Basic Principles on the Independence of the Judiciary, which dates from 1985, and the Bangalore draft code of judicial conduct, which was published in 2001, and we will table amendments to reflect that. We are lucky in this jurisdiction that the State is largely compliant with the UN principles, in particular in respect of the protection of judicial independence enshrined in the Constitution. Unfortunately, we are lacking when it comes to section 17 of the basic principles that stipulate:

A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

In reality, there are no complaints procedures in place, which adds further stress to the need for a judicial council Bill. The Judiciary is largely compliant with nearly all aspects of the Bangalore principles. However, value 1.2 of those principles states:

A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

Unfortunately, people are aware of the political affiliations of many judges who have been appointed, which contravenes the value outlined.

Given the historic context of judicial appointments in the State, we support the call for a lay majority and a lay chair as that is now the norm in international contexts. While Fianna Fáil may complain about the lay chairperson, it is the Government that will have the final say on the appointments process, as per the terms of the Constitution. I am open to correction on this point, but currently only two of 15 members of the Cabinet have any legal training and neither have practised as barristers. People complain about a commission which will have a lay majority, whose power is only to nominate individuals to be decided upon by the Cabinet, and the reason for the objection is that they may not necessarily have the expertise to decide who will make a good judge, yet we have a Cabinet with virtually no legal experience that will appoint those individuals.

When the Cabinet has responsibility for making the decisions, the latter is a bit hypocritical as an argument for opposing lay membership. The Cabinet does not even have to decide on the recommendations of the commission. It can go with its own individual. Considering that there is very little legal experience there, it highlights the inadequacies of the current situation. It is unlikely that Fianna Fáil went through the qualifications of the current Cabinet members before discussing this, but I did. Apart from the Minister, Deputy Flanagan, who is a barrister by profession-----

Deputy Brendan Howlin

He is a solicitor.

Deputy Jonathan O'Brien

-----and who, I believe, has not practised since 1985, there is only one other Cabinet member who has any legal experience and he has a legal diploma that is almost 40 years old. The Cabinet is otherwise made up of social workers, journalists, estate agents, stockbrokers and such like.

Deputy Willie O'Dea

Ex-stockbrokers.

Deputy Jonathan O'Brien

Ex-stockbrokers, ex-journalists and ex-social workers.

We also welcome the move to prohibit in law the lobbying of public representatives by potential candidates for the Judiciary. This is a very welcome move. We want to introduce a statutory bar on political affiliation forming part of a determination of suitability for an appointment. We are not convinced that a requirement for independence is suitably sufficient.

I shall now turn to the undertaking of training. It should be within the scope of the commission to recommend training. This should not only be the responsibility of the president of the court in which a judge sits. A formal judicial training procedure should be developed for all levels of the Judiciary, including introductory courses and mandatory continuing professional development.

Critics of the Bill say that the Judiciary is a particular type of profession and that no one from any other walk of life could possibly be qualified to make recommendations for appointment to it. I do not subscribe to this analysis.

I shall conclude. We welcome the Bill, even though it is not the radical reform and attempt at modernisation that we have been led to believe. It is a very minor item of legislation in the context of radically overhauling how people are nominated for appointment. It will not have the implications for the administration of justice that Fianna Fáil tries to tell us. I was interested to hear Deputy O'Callaghan say that people who sit on the commission will need to nominate individuals who are going to be open-minded and fair and who will respect the independence of judges. This was one of the reasons put forward for not having a lay membership. I do not believe that is fair.

An Leas-Cheann Comhairle

The Deputy's time is up.

Deputy Jonathan O'Brien

Sinn Féin will table amendments prior to Committee Stage. Let us not be mistaken with regard to what the Bill can actually do.

An Leas-Cheann Comhairle

Before I call Deputy Howlin, I reiterate the advice I gave at the commencement of the debate that it is important to be mindful of the principle of the separation of powers when debating matters relating to the Judiciary. It is a long-standing rule in the House and I know that all Members will be measured in their contributions.

Deputy Brendan Howlin

I will do my very best to make my remarks within the confines of that admonition. I shall begin by saying, truthfully and honestly, that I have huge regard and respect for the Minister for Justice and Equality, Deputy Flanagan. We worked with each other - in government and in opposition - on the Joint Committee on Justice and Equality. I know the zeal and vigour he brings to his task. I wish him well in his job.

This is a poor measure that the Minister has inherited and it is being promoted for shoddy motives, namely, to sustain this Government in office rather than to genuinely achieve best practice in an important constitutional function. It is being promoted by the party that prides itself above all on its adherence to the Constitution, to constitutional probity and the rule of law. I do not believe this Bill would be advocated by Fine Gael in any other circumstances.

It does not go unnoticed that the party of Collins and Cosgrave is being assisted in this endeavour by another party for which - if I put it at its kindest - the concept of the courts would not always have passed constitutional muster in the past.

Deputy Jonathan O'Brien

Is the Deputy talking about Fianna Fáil?

Deputy Richard Boyd Barrett

That is slightly unconstitutional.

An Leas-Cheann Comhairle

Deputy Howlin, without interruption.

Deputy Brendan Howlin

It is recognised by everybody in this House, and everybody outside, that the chief architect of the Bill is the Minister for Transport, Tourism and Sport, Deputy Ross. The Minister does not come to too many debates here and his presence tonight underscores his proprietorial role in respect of this legislation. In fairness, he has openly set this out as his prime, if not only, objective in office from the outset of this Administration.

The Minister, Deputy Ross, has spoken and written on these issues before. He co-wrote a book called The Untouchables. I understand that the title is borrowed from the autobiography of Eliot Ness, the US federal agent who took on Al Capone in Prohibition-era Chicago. I know there has been public disquiet about politicians using their positions in the House to make disparaging comparisons between named individuals but I do not believe it would be controversial - not even with the Minister - to say that Shane Ross is no Eliot Ness. In the Brian De Palma film "The Untouchables", the protagonists carried sawn-off shotguns. The Minister, Deputy Ross, still favours the old-fashioned blunderbuss. In his blunderbuss assault on official Ireland, insiders and cronyism, he devoted a chapter of his book to judges. In truth, that is the only reason we are here today debating this legislation.

The Minister wrote another chapter about senior civil servants. He wrote about how mandarins remained in their posts, or were even promoted, post-crash, how they always looked after each other and so on. What does the Minister now propose? Effectively, he proposes that in order to reform the Judiciary, judges should in future be appointed on the advice of a majority of individuals selected, not short-listed, by the Public Appointments Service, PAS.

There has been much comment on how the Bill will reduce both political and judicial input into appointments but there has been very little attention at all given to what will substitute for that political and judicial input. I yield to no one in the House in my admiration for the Civil Service. I worked constructively with the PAS in my years as the Minister with responsibility for the public service and its reform. The PAS has undoubtedly contributed to the modernisation and development of the Civil Service in recent years. That is not to say, however, that the Civil Service has no faults. It has a unique hierarchical structure and management style. It has, still, an ingrained silo mentality. The senior Civil Service is at its best when promoting and defending the State, its agencies and their interests. Equally, it is at its most intransigent when resisting any proposals for change that might impact on its own sphere of influence. The Civil Service still shelters Departments and organisations that work in their own best interests, which they identify - often inappropriately - as the interests of the common good.

In our rush to depoliticise the judicial appointments process, we are being asked to put a very significant part of that process - the decision makers - into the hands of a body consisting of five senior career civil or public servants, including two departmental assistant secretaries general, plus the former chair of the Civil Service Commissioners for Northern Ireland and three personnel consultants.

I do not see why the senior Civil Service should have any role in appointing judges, even at the remove of appointing those who will, in effect, make the appointments. Everyone in management knows that if one cannot make the appointment oneself, the next best thing is to be able to appoint those who will do so.

We need to be realistic about two things. First, the State in its various guises is by far the biggest consumer of judicial services. While politicians come and go, the senior civil servants who comprise the permanent administration are at the receiving end of adverse judgments and rebukes in our courts on a daily basis. Appointments are overturned, schemes are upset and spending plans are thrown into disarray by specific court decisions. Those who think politicians are sometimes inappropriate in their comments should hear what civil servants sometimes have to say about judges. Second, the major differences on the Bench are not between judges appointed by different Governments. I have been around for a long time. We all know there is no pattern of Fine Gael or Fianna Fáil judges defending their respective teams. I defy anyone to tell me there is such a pattern. There is no major difference on the Bench between those of a liberal or conservative disposition. Some differences might be noticed, but it is not a pattern. Our system is not like the American one, in which a Supreme Court with a conservative or liberal disposition can be created. That has never been the pattern here, regardless of the former political associations of judges. The major difference are between judges who are disposed to toeing the line and those who are not and between judges who know their place from the perspective of the executive branch of government and those who do not.

Judges have two basic tasks. First, they must do justice in disputes between individuals. This point was very well made by Deputy O'Callaghan. Second, and perhaps more important, they must curtail the power of the State and its agencies by confining public bodies to the rule of law. In short, they are required to bell the cat. Judges retain such a high degree of public confidence among our national institutions because they take on other institutions in the interests of the man and woman in the street. The interests of the permanent administration are not always the same as the public interest. The Civil Service is the cat that judges are sometimes required to bell. We should not be surprised if the cat objects. There is a northside-southside divide on this issue. On this side of the river, many people in the administration do not like judges who rock the boat. I suggest that in the interests of justice, the boat needs to be rocked every so often. That is one part of the reason I do not believe senior civil servants who have been hand-picked to shape our future Civil Service should have the same sort of say - in fact, an even greater say - in shaping our Judiciary.

The real concept of institutional bias is much more relevant than the notion of cronyism which has been suggested by the Minister, Deputy Ross, and which I discount. I do not believe people whose professional careers are devoted to the agencies of the State should have a major say in determining who gets to choose who sits on the judges' benches in the future. While the Government might have a right to go outside the recommendations in appointing a judge under this proposal, it will have no discretion in appointing the PAS nominees for this advisory role. The legislation provides quite specifically that PAS will determine who will be on the selecting panel for judges. The senior officials at the top of the Civil Service already have a major say in appointing their own successors through the top level appointments committee. I note that one of the objectives of this Bill is to secure diversity among members of the Judiciary. I do not believe the structures being proposed will achieve that objective. If there is to be diversity within the Judiciary, there must be diversity within the Bar. My experience in recent times is that there is not a great deal of such diversity. Many people will say that it has diminished, rather than increased, in recent times.

I do not think the Minister, Deputy Ross, has thought through or explained why one of his chief bugbears should be reformed by being reshaped in the image of another of his bugbears. This was not his initial proposal on this matter. When in opposition in 2013, he wanted to establish a judicial appointments council to recommend judicial candidates. He proposed that an Oireachtas committee should consider such recommendations before nominating judges. Bizarrely, he wanted the Constitution to be amended to stipulate that no judge or practising lawyer could have a role in assessing the qualifications of candidates or in recommending their suitability. He also wanted the Constitution to be amended to require the Oireachtas committee making these nominations to have a permanent Opposition majority. At that time, Deputy Ross wanted those who were to have a role in selecting judges to know nothing at all about the law or lawyers, or to have lost a general election. My colleague, Deputy Penrose, said last October that this was "daftness on stilts". He continued:

The Minister's gadfly pesterings clearly entertained a readership in the leafy suburbs, but he has contributed nothing serious to this debate. In Opposition he was a noisy distraction. In Government he has become an empty space.

Subsequent events have reinforced the accuracy of that judgment.

The solution is obvious enough. In fairness, most of it was embodied in the Bill published by Deputy O'Callaghan, which we welcomed last October. A judicial appointments commission is needed to recommend and rank three individuals for each judicial vacancy based on merit. Deputy O'Callaghan's Bill also proposed that if the Government does not nominate someone from the recommended list, it must publish a reasoned written decision for not doing so. This is stronger than the current provision and I agree with it. Deputy O’Callaghan’s Bill, which the Government has not yet voted down, provides for a commission with a well-thought-out mixture of competencies. As well as the Chief Justice and the presidents of the other courts, nominees of the Citizens Information Board, the Higher Education Authority, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission, the Free Legal Advice Centres, the Law Society and the Bar Council would be represented on the commission. Deputy O'Callaghan's Bill also provides for gender balance on the commission. My party and I would be more than happy to see a reform enacted along these lines.

We need to consider other issues, one of which arises from the fact that a judicial career is embarked on after a career in legal practice. I fully support this feature of our system because it enhances judicial independence. Our judges are not pre-schooled before appointment. The State cannot, for financial reasons, and should not compete against the market in the pay it offers to judges. As I did when I was in government, I support the notion that we should have arrangements to allow people who are well into their legal practice to apply for and become judges. It has been suggested that an informal practice allows interested serving judges to write to the Attorney General, who in turn communicates this information to the Minister for Justice and Equality. I have not heard any commentary on is why this procedure is informal rather than formal in nature.

The reason is that our 1995 judicial appointments legislation does not even contemplate the possibility of serving judges canvassing the Government for promotion to vacancies in higher courts. There are very good policy reasons for that.

Judicial independence is an obligation as well as a privilege. Our compact with the judges is that they must expect to serve until retirement in the posts to which they were appointed. They apply for a post and are expected to serve until retirement, rather than see it as a career path. We do not have a career-based Judiciary and we do not have a promotions-based system of advancement through the hierarchy of the courts. These are important safeguards of judicial independence. There could be nothing more destructive of independence than to create a promotion-based career path for judges, depending on how the powers-that-be think they are performing on the Bench.

I would certainly enable an appointments commission to make recommendations and approaches. There would be nothing wrong with a commission saying directly to a serving judge, or indeed to a practitioner who had yet to apply, "We believe you should be appointed to this vacancy". I would not, however, create any avenue to enable serving judges to apply for promotion based on them selling their own record in office to the Executive and I would stipulate that even informal canvassing for promotion by a judge should automatically disqualify. The Government's current Bill proposes a rush to the opposite extreme. It proposes to make a career-minded, promotion-seeking Judiciary the norm. Specifically, it proposes that two years' service on the lowest court, the District Court, would qualify one to apply for promotion to any court up to and including the Supreme Court. I do not believe that having a Bench of District Court judges living in the hope and expectation of promotion to higher courts would do anything for judicial independence or for the quality of justice in that court.

We do not want or need career-obsessed judges delivering their verdicts with one cautious eye on a leader board maintained by any agency of State. The Minister for Tourism, Transport and Sport, Deputy Ross, is engaged in the same sort of anti-elitist rhetoric as the Brexit campaigner Michael Gove, who urged voters to ignore the economists and said, "People in this country have had enough of experts". It is an attempt at a gut-appeal, conspiracy-theory argument, without any evidence to support it. It is populist bombast, pure and simple. I and my party will oppose it and we will seek instead real and sustainable reforms. I hope the Government will be open to this in the interests of the Judiciary and, more importantly, in the interests of the people.

Deputy Richard Boyd Barrett

I will share 20 minutes with Deputy Mick Barry. Deputy Howlin offered me a good lead-in to my opening comments by, once again, raising the spectre of populism, the evil it represents and the need to resist it at all costs. Populism is the danger we are facing, whatever it might be. "Populism" is an amorphous term if ever there was one.

We are dealing with a problem of a judicial system dominated by a very small, self-perpetuating elite. The judicial system and the barristers are drawn from a very small pool, largely controlled by the Honorable Society of King's Inns, about which I learned a bit while chatting to somebody on the phone today. It was set up by King Henry VIII to ensure we controlled access to the Bar but also, initially, to keep Catholics out. This is the only place one can become a barrister. Judges are not exclusively barristers but they are overwhelmingly so. The honourable society is the only place that trains barristers but there is no statutory basis for it in any law made democratically by us. It literally owes its origins to Henry VIII and was set up on an exclusivist basis to ensure that a small, well-vetted elite controlled who got to be a barrister and who was kept out. They still do it and inside the Honorable Society of King's Inns there is another secret society whose members are known as "benchers". There is an inner bench and an outer bench and anyone who is made a judge automatically becomes a member of the benchers. They have secret dinners but nobody ever finds out about them, even though they are held regularly. Cherie and Tony Blair are members, incredibly, and there are other interesting people involved. In order for a person to be called to the Bar, a bencher has to sign off on it and in both the old and new systems, the Judicial Appointments Advisory Board and the appointments commission, I have counted five who are members of the benchers. These include the Chief Justice, the President of the Court of Appeal, the President of the High Court and the Attorney General, who automatically becomes a member. One can be mandatorily made a member of this group, even if one does not want to be, which is quite extraordinary. It begs a serious question about the independence of the Judiciary because some judges may be junior to barristers in the benchers. They might socialise together and chat before cases but when a barrister is not a member of the benchers, there is serious potential in this secret society to corrupt the balance in the hearing of cases. The group can disbar barristers and there is no statutory basis for it.

This is how the upper echelons of the legal system in this country work. I welcome the thrust of the Bill and the Minister has identified a completely unacceptable situation, namely, that one third of judges are directly connected to, and are cronies of, the political parties. Even in the past few weeks, close connections of Fine Gael have been appointed as judges. The Constitution requires that the Government appoints judges but there is a big problem with this. I find it hard to understand how people can talk about the separation of powers and the independence of the Judiciary with a straight face. Deputy Jim O'Callaghan asked how we could possibly impugn the Judiciary and the way it behaves but I think we can impugn it. We can hold its members to account and criticise decisions they make and we bloody well should.

Deputy Jim O'Callaghan

I did not say that.

Deputy Richard Boyd Barrett

The Deputy implied that there is nothing wrong with political connections and that it is nonsense to suggest judges are recruited on the basis of political connections.

I put it to him that it is complete nonsense to suggest that people who were appointed because of their connections to political parties or who, for that matter, were appointed by Governments are not in some way influenced by those who appointed or selected them. That has to have some impact and it is a worrying one.

The whole thing needs to be shaken up. For that reason, I will support the Bill moving to Committee Stage. In principle, I like the idea of having a majority of lay representatives on the commission but a hell of a lot more than that needs to be done. We need to broaden and democratise the base of the entire legal and judicial system and stop it being an elitist club dominated by secret societies such as the benchers. We also need to bring an end to the monopoly of the King's Inns over who can become a barrister because that leads to its members having a consequently disproportionate influence. Even the new commission proposed in the Bill will have five members who are also benchers. A secret society will have influence on the new commission with regard to who will be recommended and considered to be acceptable and the right kind of person to be a judge. That is completely unacceptable and it brings to mind the expression which says there is one law for the rich and one for the poor, not just in the dispensation of the law but in how it is structured. That is how it works at every level all the way up the line. The experience of court for working class people, who make up the vast majority of our population, is in the District Court, where one goes in and industrial, production-line justice is dispensed. There are no juries. The judges of the District Court, who are all mandatory members of the society of the benchers - with its secret lunches and so on - dispense justice on the poor. However, if one is rich, one can afford to go to the higher courts. I do not know why the Minister for Justice and Equality, Deputy Flanagan, is laughing. Poor people cannot access the same level of justice as rich people. That is a fact. The higher echelons of the Judiciary and barristers overwhelmingly come from private schools and better-off backgrounds and inner circle groups vet and select who gets into the higher echelons. That is the reality of what is going on.

In terms of the simple things that need to be done, the monopoly of King's Inns should be ended. UCD, NUI Galway, Trinity College Dublin and other universities should be allowed to train judges and barristers rather than it being the remit of King's Inns and controlled by the benchers or whatever the hell they are called. That needs to end. There needs to be an end to the idea that Members cannot criticise judges or their decisions. Members should have the right to criticise judges, who should likewise have the right to criticise Members. I have no problem with that.

The PAS also poses a problem, as has been mentioned by Members opposing the Bill. Who selects the civil servants in the PAS? Who are the members of the PAS or the top level appointments committee and who selects them? They are also a self-perpetuating elite. That is not a good enough way to select judges or Secretaries General.

Deputy Mick Barry

I mentioned in last week's debate on this issue that in 2011 the Irish Independent surveyed 168 members of the Bench in Ireland and found that 56, or exactly one third, had what were described as personal or political connections to political parties in this State. In 2012, Mr. Justice Peter Kelly said that appointments to the Supreme Court were "purely political". In the same year, Judge Michael Pattwell said his own appointment was political.

The Bill might make judicial appointments somewhat less nakedly partisan in party-political terms. That is progress of sorts. However, it will not tackle the issue of the very strong class bias which exists in the Judiciary and which is a major feature thereof. Deputy Boyd Barrett mentioned King's Inns and went back to the days of Henry VIII in that regard. I do not intend to go back several centuries but will deal with the present. To study for one year at the King's Inns, one would have to fork out €12,560, which is a very significant sum for a year's tuition. Very few ordinary people could come within an ass's roar of affording those fees. A couple of weeks ago, it was reported that there are now 79 unemployment black spots in the State. How many children who live in those areas have the possibility of going on to become judges in this State? Will the profession continue to be stuffed full of people from more privileged areas and elitist schools? The average salary of an Irish judge is three times the average for judges in other European countries. How could they not have the outlook of a ruling elite in this society when that is their vantage point? There is an interesting detail in the Bill in terms of class, which is that judicial appointments will now be permitted, if the legislation is passed, to come from the ranks of legal academics but only those from universities, not institutes of technology.

The class bias in the Judiciary is starkly shown in cases involving social struggle and social protest. All Members know the case of the Rossport five, who were jailed, and of the 20 men and women from working class communities who were imprisoned in 2003 in the course of the struggle against bin charges, as well as the multiplicity of injunctions that have been issued against trade unions and trade unionists such as in the Greyhound and Aer Lingus disputes in 2014. The class bias of the Judiciary when dealing with social protest and its tendency to overstep the mark in such cases has historically been the case, although every cloud has a silver lining. That tendency has served to raise the consciousness of working class people of the need for their independent political action and in the past has spurred on the development of new left-wing political forces. A famous example is that of the Taff Vale case in 1901 in which it was ruled that unions were liable for the loss of profits of employers in a strike situation and a penalty of £42,000, comprising a fine and court costs, was levied on the Amalgamated Society of Railway Servants, which had a huge politicising effect in working class communities in Britain. It showed the need to have workers' representation in parliament and was a key moment in the rise and development of what was later known as the British Labour Party. In Ireland, a very important trade dispute took place in Wexford in 1912. That was the lockout of Irish Transport and General Workers Union, ITGWU, members from the foundries in Wexford town. The forces of the State were used in a crude way against workers who were asserting their rights. There were baton charges against workers, the murder of a man named Michael O'Leary and the jailing of the leader of the strike, an ITGWU organiser named P.T. Daly. In terms of the effect that had on the consciousness of working people throughout the country, it was a key moment in the move towards the development of the Irish Labour Party, which, once upon a time, was a party for working people. The party was founded later in 1912 by James Connolly and James Larkin as the political wing of the Irish Trade Union Congress.

Those are important points to bear in mind when we are looking at a Judiciary with a class bias which will deal with social protest overstepping the mark and the effect that it has on the consciousness of large numbers of ordinary people.

If this Bill is passed, the party political bias in the Judiciary may be somewhat lessened, which is a minor step forward, but the class bias will remain. The song will remain the same on that front, and it is an issue that the labour movement, the working class movement and the left movement as it develops will have to deal with in a concrete fashion in the years ahead.

Deputy Mick Wallace

There is no doubt that this is a very complex, intricate area, and listening to the variety of opinion in this House endorses that fact. This variety of opinion suggests that there should be more of an opportunity to debate this issue. I do not agree with how it is being rushed at the moment. The Joint Committee on Justice and Equality has been ridden roughshod over and it leaves much to be desired. The manner in which Deputy O'Callaghan's Bill was dealt with by not giving it the money message, and the way Deputy Daly's Coroners Bill has been sidelined in order to rush this through, is not acceptable. There is a better way of doing things, and it is disappointing that the Government is not approaching this in a different way.

Judicial reform is required, but we could have approached the issue in a better way. In terms of what we could do, we should take a glance across the water at Scotland, England and Wales. The judicial appointments board in Scotland has a very comprehensive list of criteria to cover the notion of merit. A judge must have a good knowledge of the law and show skills and competence in the interpretation and application of the law; a thorough understanding of the theory and principles on which the law is based and an ability to analyse and explore legal problems creatively and imaginatively; excellent skills in an interpretative analysis of case law and statute law; excellent skills in identifying issues of fact and law; excellent skills in applying the relevant law to relevant fact; the personal characteristics of integrity, independence of mind and moral courage, fairness and impartiality; common sense; an understanding of people and society; a responsible attitude and sound temperament; courtesy and consideration; an ability to command respect and resilience; and be able to demonstrate a range of case management skills and communication skills. There are 17 criteria used to assess merit. It is a daunting challenge to meet all the criteria, but I wonder what sort of guidelines are to be used if this process comes into play here.

The Minister said that three nominees instead of seven is in line with best international practice. I point out that in Scotland, England and Wales they recommend one nominee. Reducing the number of nominees would make the selection process more independent and would have potential in terms of combating the influence of the Government party of the day. Previously, we had a situation where the Government received seven names from the board and even if the highest standards of selection on the basis of merit were adhered to, the Government could still select one of its own supporters from those names. Where are the terms of reference for the Minister for making the selection of the three names? Are we assuming that the Minister will have the wherewithal to make that selection? Even if the Minister has the wherewithal at this moment, how are we to know that in years to come he or she will have the capacity to make the proper decision?

The recent controversy over the appointment of Ms Justice Máire Whelan shows that the real problem of patronage lies in Cabinet rather than with the Judiciary, as Deputy O'Callaghan pointed out earlier. How can the Government pretend to remove political patronage from judicial appointments if it will not empower this new reforming body to make the real decisions on these appointments? By putting one nominee forward instead of three, it would reduce the powers of politicians over it, and the Government would have the option of refusing to accept the single nominee and asking the body to provide another.

There is much discussion about removing the influence of politicians in certain areas. The Police Authority is a very good example. It was said that this would de-politicise policing, but in fact the end result was that the Policing Authority, as has been proven in the past six months, is a creature of Government still and lacks the real independence that we hoped it would be given.

The terms for conducting the selection process for lay persons could be made more prescriptive. At present, the guidance is that the Public Appointments Service shall have regard to the desirability that the lay members of the commission will, among them, possess knowledge of and professional experience in as many as possible of the matter specified in subsection 7, this subsection being a well worded and comprehensive list of areas of knowledge of the law. At present, the position open for the lay members of the committee reads like a Jack-of-all-trades job description. Potentially someone may do this as they have been doing nothing else. If this is to be done properly, the structures and resources need to be put in place to ensure that the right people with the right expertise get the job, and that they will be vetted in such a manner that stands up to scrutiny down the line and that ensures that they can be removed. It is very important that a process is put in place where people can be removed from the board. We have a long history of the proliferation of State boards and bodies and a notable shortage of good people interested in these positions. We do not seem to have a sufficient pool of suitably qualified people, and we need to ensure that the proper resources are available to the Public Appointments Service for this very important task.

The England and Wales commissions were established in 2005. Both commissions put forward only one name to the justice Minister, who invariably approves the recommendation or provides a reasoned request that a new process of appointment be engaged in. To protect further against any abuse of the process, parliament legislated for a judicial appointments and conduct ombudsman, responsible for auditing any complaints about the appointments process. There is no such appeals process in this current legislation, and this is complicated by the fact that the Minister ultimately makes the final selection of the three nominees put forward, which arguably means there is still too much political influence. The appointment of a lay person as chair of the commission is a positive development and has been welcomed by many in the legal profession, in particular, solicitors. They see this as an opportunity to break the monopoly of the Bar Council of Ireland. There are approximately 10,000 solicitors in the country and 1,500 barristers, but barristers make up 80% of the judges in the superior courts. Solicitors will see the lay chair as an opportunity to break that mould to some extent.

The fact that the only courts present on the commission are superior courts - the High Court, the Court of Appeal and the Supreme Court - means that it is not fully representative of the judicial profession given that it is the District and Circuit Courts which deal with the vast bulk of cases and where most judicial vacancies arise. As such, I propose that the Presidents of the District and Circuit Courts be added to the membership of the commission. If this ends up giving a slight majority to the legal professionals, it could be seen as a compromise for introducing the lay chair. It should be open for discussion.

The Bill is a step in the right direction, but if the aim of the Bill is to remove political patronage, or the perception of political patronage, from the judicial appointments process then it fails miserably.

The fact that the Attorney General will sit on the judicial appointments commission and at the Cabinet table means that he or she has a role in every stage of the judicial selection process in the recommendation and appointment of judges. This completely undermines the independence of the commission. Furthermore, as the Incorporated Law Society points out, the Attorney General's role as a major purchaser of legal services in the State raises serious questions about conflict of interest.

There has been a breakdown of trust in the State in recent years and this and the previous Governments have presided over the big sell off of Irish land and property to vulture funds. The impact of this on how we supply housing in this country, on affordability and the rental market is very dramatic. It is very unfortunate that it was not better managed. Likewise, the Government is propping up a Garda Commissioner who has long proved unfit for purpose. The perception of political party patronage is damaging to the legitimacy of a democracy. The Government should be doing its best to remove this and the first step would be to make this body independent by removing the Attorney General, empowering it to make its own decisions and further reduce the influence of the government of the day on the decision making process.

Deputy Clare Daly

I read with interest yesterday the Minister's commentary on populist politicians, and his tut-tutting that the State could not withstand the modern penchant for jettisoning rules of due process for short-term political gain. I have to hand it to him - he has some neck to say something like that and to come in here with something that is probably the worst example of a political soap opera played out at the expense of the common good, whose consequences will go way beyond the Minister's scheming at Cabinet table. The issues are far too important to be used in this way. It is disgraceful.

We do not need this Bill. We already have a judicial appointments Bill that has just gone through Second Stage in this House with cross-party support. I am sick of talking about judicial appointments. We have dealt with Second Stage and pre-legislative scrutiny, and my office did mountains of work to prepare amendments to Deputy O'Callaghan's Bill, which was pulled at the eleventh hour because there was no money message. Now, on the eve of the Dáil's summer recess, any amount of time is being given to dealing with this Bill although the courts will be going on holiday in a few weeks' time, and after the Government makes appointments to the High Court and Circuit Court, in some instances for vacancies that will not arise until later this year. It is an absolute joke. The only conclusion to be drawn is that it is being done to offset the damage caused by the botched handling of the appointment of former Attorney General to the Court of Appeal. We have a responsibility to ask at what price. Undoubtedly, if this process continues to be rushed in this manner, it will undermine confidence among the Judiciary and the public. More than that, Deputy Wallace is correct. I saw the Minister making gestures but he knows that the Tánaiste approved the prioritisation of the movement of the Coroners' Bill through Cabinet. The Minister sent me a letter saying that he supported it. The Department of Justice and Equality was told to work with us to have that Bill published two weeks ago. It needed to be so as to pass through all Stages prior to the summer recess. I hope to God no woman loses her life in our maternity services in July, August or September, leaving her family to fight the Health Service Executive, HSE, for an inquest. That was a priority of the Oireachtas Joint Committee on Justice and Equality and it is being sacrificed because the officials were used to draft this Bill. That is not good enough. It is debasing a worthy objective and judicial reform. The manner in which it is being handled has undermined the Bill.

We have already tabled amendments to Deputy O'Callaghan's Bill to the effect that there should be a lay chairperson and membership of the judicial appointments commission so we support that position. Like Deputy Wallace, however, I raise my eyebrows at the presence of the Attorney General on this body. I do not see any particular expertise the Attorney General could have. At least in the initial stages the judges on this body will come through a political patronage system. There are political differences emerging in the debate which are worth teasing out. Having a lay majority on the judicial appointments commission is not a question of one in the eye for the Judiciary or the legal profession. It is about a particular view one has of what the Judiciary is. People with a legal background see the appointment of judges as a career move within the system so understandably they believe it should be controlled by their expert peers. That makes sense. Ordinary citizens, however, view things quite differently. They see the role as a social one, acting in the interests of society and the administration of justice, adherence to the legal profession being a secondary consideration. On that basis, it makes sense for judges to be appointed from the society they represent and being alive to its needs. That is critical. Having equal representation on the appointment commission is the best way forward to give both sides their due.

Section 15 of this Bill deals with the experience that the people to be appointed as lay members of the commission will need to demonstrate. Under the initial heads of the Bill, that experience was to be in voluntary, community or social affairs but that has been axed and replaced with expertise and experience in commerce, finance or administration. I am shocked. What in God's name does experience in commerce or finance have to do with the appointment of judges? It is far more important to have people on the appointments commission with experience on the ground, people who deal with communities, members of which are likely to appear before the courts and which are ravaged by criminal activity, who understand the issues that lead people to have a conflict or end up before the courts. That is a really retrograde step. Another retrograde step is the removal of the provision in the original heads that the membership of the commission should be gender balanced and reflect social diversity. That has disappeared. Given the experience of women in some of our courts that should be reinstated.

The proposed senior judicial appointments advisory committee is a joke. It is made up of the Chief Justice, the Attorney General, the chairperson and perhaps also - the language is not clear - the Minister. Section 23 of Deputy O'Callaghan's Bill, dealing with senior appointments, was far more sensible than the suggestion presented here because it empowered the commission to make a recommendation to the Government for such senior appointments to be based on merit, in other words on the same principle of all of the judicial appointments. The make-up of this senior judicial appointments advisory committee is too political. It is unnecessary. It sidelines the commission from the important appointments and there is no clear reason that the commission cannot perform this function and that the Minister has to get involved at all. They are fatal flaws.

I am, however, sympathetically inclined toward those who contributed to the debate saying that in many ways this is a false debate, that it has been hyped up and is much ado about nothing. The key problem for citizens is not judicial appointments, but their ability to access and achieve justice in this State. That task is far bigger than judicial appointments. I am broadly sympathetic to those who say there are some outstanding individuals who serve the Judiciary remarkably well. I go to court quite often and on many occasions I am absolutely gobsmacked by the calibre, which is very impressive. When it goes wrong, and those judges are not up to scratch, it goes very very wrong and there is absolutely nothing in place to deal with those individuals. There is a far more urgent need to legislate for a judicial council than for this commission. It is not good enough that we are rushing this through. It has been on the cards for a long time. It is an open secret that there is a judge in the District Court who, realising the shortage of judges who could speak Irish, put himself forward on that basis although he did not have a word of Irish.

He got the job on that basis and once he was in it, having lied to get it, there was nothing they could do. He was still there. Terrible things are going on in the family law courts behind the scenes, with lives being destroyed without any proper scrutiny or legislation. We need an urgent intervention and oversight of our courts system. I am desperate to see judicial reform, but it must be proper and comprehensive. In its current form, this Bill is definitely not that. We are doing a disservice to those good members of the Judiciary, the public and those citizens who will come before our courts if we use this issue to make political capital and a political gain. The issues are far more important than that. I do not want to be part of something that debases a very important objective in this way. It leaves a great deal to be desired.

An Ceann Comhairle

I call the honourable gentleman from County Kerry, Deputy Michael Healy-Rae.

Deputy Michael Healy-Rae

I thank the Ceann Comhairle. I was in my office and had to endure listening to a certain individual across the House using his time to castigate and try to put down the Minister for Transport, Tourism and Sport, Deputy Shane Ross. I did not like it but the Minister is well able to rise above that type of activity. I do not agree with it and I do not like to see it being done to any Member. I must also say a word to my colleague, Deputy Boyd Barrett. I was not impressed either to hear him castigate the King's Inns as some sort of elitist model, which it most certainly is not. If he knew his facts, he would know that it is a very open and transparent place with various ways for people to get in. One does not have to be an elitist to get in. It is very unfair on people from rural Ireland and around the country who educated themselves and worked hard to get into the King's Inns and came out to earn a living successfully. They are not elitists. There is nothing special about them. I will tell the Deputy what they are; they are ordinary hard workers. They are people who studied and were good at their books, a thing I was not good at, and they bettered themselves. To condemn those people as elitist is unfair, but it is the Deputy's own opinion.

Before I address the Bill itself, I note that I have nothing but respect for and confidence in the abilities of all the judges in this country, be they on the District, Circuit, High, Court of Appeal or Supreme Courts. They are all extremely hard working and highly intelligent individuals with a difficult and challenging job to do. They often give up lucrative private practices at the Bar or as solicitors to serve the State and administer justice in a fair and proper manner. Let me put it like this - rather them than me. The question of how judicial appointments are made is very important and directly relevant to every citizen. The independence of the Judiciary is vital and every person, or poor misfortunate as I see them, who has to appear before the courts must be satisfied and safe in the knowledge that the law of the land will be applied in a competent and impartial manner without fear or favour. It is clear that concerns have been raised in the past about the way in which judicial appointments have been made. That should definitely not be seen as casting any aspersion or doubt over the integrity and capabilities of the people who have been appointed and have served or are currently serving as judges.

The time may have come to review the way in which appointments are made. I have no difficulty with changes being brought forward. In particular, it is vitally important to ensure that the whole process of judicial appointments is carried out in an open and transparent manner so that the public at large can have confidence in the system and be sure that the best man or woman is chosen for the job. While the Bill itself has many positive aspects, the biggest difficulty I have with it is the composition of the proposed commission. What is proposed here is that there will be a lay majority and a lay chairperson. While, of course, there should be some lay persons on the commission, when it comes to picking the best person for a job, who can be better placed to do that than the people who are already doing the job? What we need are people who know exactly what the job entails and who can properly test each potential candidate’s ability to do the job. I do not know of any other job application process where the majority of the persons involved in the appointment process are not directly involved in the area to which the appointment is to be made. The phrase "horses for courses", with all that entails, comes to mind. Not to be smart about it, but the question must be asked as to how the lay persons are to be selected and vetted. While the Bill envisages some form of selection process by the Public Appointments Service, how can the public be sure that these lay people will have the expertise necessary to choose the best person for the job and to choose the person who may be sitting in judgment on them the following week?

I am particularly concerned to hear that it is proposed that no member of the District Court or Circuit Court will be appointed as a member of the commission itself. Those courts deal with a large majority of the cases coming before the courts on a day-to-day basis and they have the real knowledge of what it means and, more importantly, what it takes to be a judge. I see it in my own constituency in Kerry where the District and Circuit Court judges are at the real coalface of the administration of justice and deal with very large volumes of cases on a daily basis. I have huge respect for the work they do in very difficult circumstances to adjudicate in all types of family situations and misfortune. On the positive side, I welcome those parts of the Bill which set out the requisite skills, attributes and capabilities necessary for appointment and which will form part of the selection process. I also welcome the fact that all appointments will be based on merit. I have no difficulty with those parts of the Bill which prohibit the canvassing of support for an application or any form of interference by any person involved in the process. The Bill proposes that only three names will go forward to the Government as prospective candidates for a vacancy, which also makes great sense.

There is nothing as important as the fair administration of justice in this country. I want to ensure that the existing public confidence in our Judiciary is maintained. While there are some positive aspects of the legislation, I have come to the conclusion that this Bill falls short in a number of important areas. Unfortunately, I cannot support it as it currently stands although I welcome the fact that it has been brought forward and appreciate the work the Minister, Deputy Ross, has done on it. It is the usual case of something being rushed through in a panic to deal with a recent crisis and it is another clear case of using a sledgehammer to crack a nut. In the past few days, the Chief Justice and some of the most senior judges in the country have made public their concerns about certain sections of the Bill. We have to listen to them. In general, judges are very reluctant to make any public comment or become involved in any controversy. It is my humble opinion that the very fact that they have felt the need to voice their concerns publicly in this way means they should be listened to and their concerns should be addressed.

As I understand it, there are approximately ten to 12 judicial appointments each year. There are far more pressing matters that we need to address as a matter of urgency in our country. For example, we need to assist the Minister for Housing, Planning, Community and Local Government, Deputy Eoghan Murphy, to reduce the number of people, particularly children, who are without a home and the waves of people who are on our social housing lists, including over 5,000 in County Kerry. The health system was never in such a state, notwithstanding the amount of money being pumped into it on a weekly basis. People continue to go blind while they wait to have cataracts removed. The effects Brexit is going to have on this country are still not fully understood. We are having meeting after meeting on Brexit, but no one can clarify the impact it will have on our farming communities, tourism, trade and the movement of people to and from the State. Our infrastructure is light years behind the European average.

Perhaps we could use some of the proceeds from the sale of AIB to pay back our taxpayers for the years of suffering they have endured.

I am grateful for the opportunity to make a contribution on this Bill. While I do not agree with all aspects of it, at the same time that is what Dáil Éireann and Ministers are for, that is, to come forward with ideas. We do not have to agree fully with what a person might be proposing but, at the same time, we can have respect for his or her views and opinions and the work that is being diligently carried out. I do not believe it is fair or right for Members to be personally critical and to use their time here to carry out some sort of personal vendetta that they might have against an individual. I do not like that type of carry on.

Deputy Mattie McGrath

Like the Minister, Deputy Ross, I campaigned vigorously in the formation of the programme for Government for the introduction of some form of judicial appointments commission or reform of the Judiciary. I have to declare an interest because I have been before the courts and did not find the experience very good. I have vigorously defended the proposals for reform of how members of the Judiciary are appointed, as outlined in the Judicial Appointments Commission Bill 2017. Notwithstanding the fact that Deputy Jim O'Callaghan brought forward his Bill, and he has more expertise on the legal profession than me, I was speaking ahead of this Bill all week because we had looked for it. Given the seriousness and the necessity of the measures being proposed in the Bill, it is vital that the Government urgently addresses its own clear divisions on this matter. It should not have taken a year and it is a pity that it is being rushed during the last two weeks. However, only for the ham-fisted way that the Government appointed the Attorney General to her new position on the Court of Appeal, this Bill would not be here at all this week. The Minister, Deputy Flanagan, can smile all he likes, but that is a fact.

The Minister, Deputy Ross, was clear in the programme for Government he negotiated. The Minister, Deputy Flanagan, was not there, although many of his colleagues were, but when I brought it up, I was nearly thrown out of the room. It was a taboo subject and I could not go there. I was rounded on and treated like an alien who did not know what he was talking about, but I do know what I am talking about. I have visited many of the courts.

The Minister for Justice and Equality, Deputy Flanagan, has displayed a kind of lukewarm enthusiasm and seems reluctantly to have come round to supporting the provisions of the Bill, but what the Minister, Deputy Ross, who is the driving force behind this Bill, is attempting to do is both politically courageous and long overdue. On talk about the books he wrote, we are entitled to do whatever we like when we are outside this House. The reaction of the Judiciary, while cloaked in concerns about the separation of powers and the appropriateness of the new process, is ultimately the last gasp of an elite group who, for far too long, have been self-selecting and self-regulating. That has to change like so many other areas in this country.

I will not go down the road of criticising everyone that is at the Bar or in the Law Library. I never will become a lawyer but I have known for too long, while involved in politics and before it, how appointments are made. I can quote experiences here if Members want. The Judiciary is not and cannot be immune to revision and reform such as those outlined in the Judicial Appointments Commission Bill. We have had too many experiences.

We have many good and eminent judges who, up and down the country, diligently and in difficult circumstances do their jobs daily, as Deputy Healy-Rae and others have said. However, this concerns the system of appointment and regulation, and the fact that there is no assessment of their behaviour or reactions to how they are getting on. There is no critique. We are not allowed to criticise them.

As I said when I spoke on the appointment of the former Attorney General to the Judiciary, we saw how the referendum was run for the new Court of Appeal. I opposed that, and I am glad I opposed it. There was no criteria as to how many judges would be on it, how many cases they would have to hear or how they would deal with the backlog. There is an outrageous backlog in the High Court, the Circuit Court and other places. My court case would be going on yet, ten years later, only that we got a special sitting. It was through a special sitting that I fell into the lion's nest or whatever one wants to call it. There is no accountability. We did not even set out in the referendum or the legislation that underpinned it how much the Court of Appeal would do. Can the Minister tell me how many cases have been heard? We have eminent people and legal professors challenging it every day. There is a kind of a go-slow there. I was not a fan of the former Minister, Mr. Alan Shatter, but a go-slow commenced when he seemed to be on his political crusade. Let that be where it is because we have to move on to where we are today.

There is such a furore about having lay people on the appointments board, but there will be a lay majority. There will be three judges, seven lay persons, one Attorney General, whoever that may be, and two representatives of the legal profession. I am pleased with that. What I am not pleased with, however, is how the lay people are to be appointed. Some people suggest that they should have expertise in finance and commerce or other issues. If ordinary members of the public up and down the country are fit to be on a jury every day of the week, 300 or 350 days a year or how ever many days it is, they are well fit to be on an appointments board. Why are they not? Will we have a two-tier system? Is it that they are fit to be on a jury but not fit to have any say or role in how we appoint people who will direct a jury, throw out cases, work around cases to dismiss a jury if it does not suit - that is happening - or ill-treat a jury, as happens at times too?

We cannot have it every way. We have lay people. I am talking about ordinary lay people and others who are not lay people, such as professors, retired county managers or senior public servants appointed by the Public Appointments Service. I was in that bastion for two or three days appointing lay members that the Minister at the time wanted for the fisheries board. When I arrived there on the Monday morning to do the interviews - I happened to be the chairperson - I was met by a secretariat that told me they had obliged us at the weekend by reading through all the 120 applications and had picked out the top 20 for us. They gave them to us and we looked through them, but I said that we were not having it. I turned it upside down and said that we were going the other way. The 20 that were picked out were all elite, retired personnel who should have been out playing golf. They were probably playing golf when they were supposed to be working or whatever else. That is what is going on in this country. The handlebars of power are clasped by an elite and they want to keep it that way. If they end up in court, they want to ensure that they have their friends inside before them.

There is also the picking of judges for certain cases. The Ministers can close their eyes and smile that it does not happen. My dear Minister is new to the Department of Justice and Equality and he has a lot to learn, although I know he has experience as a solicitor. Again, there is an imbalance in the number of legal people. There is only a small number - 1,500 - of eminent barristers. I have engaged some of them - there are many good ones as well - and I must thank them for making it possible for me to be here. The attempt of the exercise was to get me out of here, but it did not happen thanks to a good defence and a fair jury.

Now the juries are not fit to be involved in the appointments process, even though they are only selecting those who are to go forward to the Cabinet in a process where the Chief Justice and the Attorney General will have a say. On the morning, the Minister will be slipped a note going in - that has been happening and it will happen the Minister too. It will be passed to him. He will be told to bring it in, that the Taoiseach wants this one and that it is Fine Gael's turn this time. The Minister, Deputy Ross, might never get one. He will never get one because he will not want to take it from them. I know that. We had an appointment made before by the former Minister, Deputy Howlin, who was so scared of the Minister, Deputy Ross. He got a fair few of them appointed himself. One appointment I forgot on the last night was by my good friend up here, Deputy Eamon Ryan, and one of his former Cabinet Ministers. I think she was the only justice that he got appointed but she did not have a very good track record and she is no longer there. I will say no more. However, this is what has gone on and it has been going on under our noses. The sooner we lift up our glasses and see what is going on, the better.

I salute the Minister, Deputy Ross, on championing this issue. I know he has got it now by default because of the furore that happened last week. Fine Gael did not want an election. However, it is rushed legislation and there are parts of it that I am not happy with, especially how the lay people are picked. I have informed the Minister, Deputy Ross, that I will be tabling an amendment to the Bill to try to have lay people on it and not lay people when it suits them to be lay. They might have been lazy and lethargic in their jobs, but they are not lay because they are retired on pensions. They should stay retired on pensions and not be self-serving and keep the system in place.

I agreed with a lot of what Deputy Howlin said about the senior Civil Service - no disrespect to the people here - and how they mind the house, mind each other, and mind the system. I sat at a press conference in Buswell's Hotel today - I did not see too many there - on the right to homes Bill. Who is protecting those people from the vulture funds? The former Minister, Deputy Noonan, said they were a great invention in Ireland. They are worse than Oliver Cromwell in Ireland and the Government is giving them the imprimatur. No one will bring in legislation to stop them. We have the right to homes Bill now, and I do not believe it is a money Bill. It may be a money Bill but we can borrow the money at a reasonable cost and bail out the ordinary people who went and tried to home themselves, but now they are going before district justices of all kinds as lay litigants.

I have been down there. One of them was shoved in there by the former Minister, Deputy Howlin, not so long ago. He would not allow representation. A women was unable to stand up after a traumatic journey and is being imprisoned. She is a mother and a grandmother. He insisted that she stand up first.

Then he insisted that she represent herself, even though she was not able to speak, not to mention stand up to make a speech. That is the kind of injustice that gives a bad impression.

I got it into the Cabinet rooms last year. They did not want to go to this issue at all and they told me to leave it: "This is our territory; keep away from it." I may have been elected by the people of Tipperary but I was not going to change this system. I was told, "This is our system, it has served us well and it will keep serving us". On occasion, however, when it suited and when there were too many candidates for election, one or two were shoved onto the Bench and out of the way. The Minister cannot tell me that did not happen because I have evidence that it did. I have evidence and the Minister knows it. He can smile but it happened in his party too. That is what has gone on. It stinks to high heaven. The work of the good people is tarnished and diminished, the work of those who want to be in there, administering justice, which is a very important job.

Why is a person fit to be a juror in all kinds of complicated cases except those in the Special Criminal Court? Jurors are expected to be able to understand the law and to be fair and impartial. The majority of them are and I commend and salute them, but six or seven of them could not be brought into a room apparently. I heard a retired Chief Justice this morning and was shocked by her. She said that the chairperson of the appointments board has a very important role because he or she may be able to influence the other members of the board. Therefore, the chairperson cannot be a lay person because he or she might have daft ideas about spreading the wealth, spreading the preserve and taking down this bastion that has not served the people who fought to free this country. It was meant to, but it did not. It is time this Bill was passed. There are warts and failures in it because it is rushed. Rushed legislation is bad legislation but we need the change.

Why did the Government throw out Deputy O'Callaghan's Bill if it does not want to have anything to do with this? The Minister, Deputy Flanagan, was not in the Department of Justice and Equality then. He was in the Department of Foreign Affairs and Trade and he helped me out with a number of issues, fair dues to him. Now he is in the hot seat. He has inherited a lot of issues and I know there were not many queuing up for his job. He is reluctantly sitting beside the Minister for Transport, Tourism and Sport tonight and, much as he does not like this Bill, he is putting it through the House. I salute the Independent Alliance for being in government and for being the watchdog and the guardian of the commitments that the Minister, Deputy Ross, made. Those commitments were included in the programme for Government, like many issues that we brought forward but we cannot find in the programme any more. We are trying to find them. Any time we leave a programme in the Chamber it disappears in case we read something else out of it. I support the Bill.

Deputy Catherine Murphy

I am sharing time with Deputy Eamon Ryan.

This Bill has been hugely controversial primarily because the impression has been given that one element of reform, namely, a lay majority on the JAAB, will be some kind of silver bullet which will magically transform our judicial system. There is no doubt that the Judiciary has been drawn from one cohort of Irish society and that it lacks diversity. The Bill addresses just one of a number of factors that require to be addressed if we are to overhaul the antiquated ways in which our judicial system works.

It is worth noting that the Judiciary itself has sought changes, as outlined in an article in The Irish Times in 2014.

In a rare intervention, the judges - through a committee chaired by Chief Justice Susan Denham and including representatives of all court jurisdictions - are sharply critical of the "demonstrably deficient" system and say wide-ranging changes are needed to attract high calibre applicants..."It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system," the judges argue.

However, I probably would disagree with Ms Justice Denham on the solution. One thing that can be guaranteed when it comes to any system reform is that there will always be resistance and that such resistance will usually come from insiders. We are not very good at creating new institutions. Our justice system is an inherited system and any reforms of many of our inherited systems have been piecemeal. We do not do radical reform.

While we in the Social Democrats do not believe the Bill is perfect, it is a move towards the kind of reform that is required to bring the judicial system out into the light and make it more accessible, more diverse and ultimately more fit for purpose in a modern Ireland. That said, the Bill requires significant amendment. The emphasis on the so-called lay majority has been a misrepresentation. The Bill sets out a mechanism for a committee of 13, the majority of whom shall be lay members with a lay chair. The way things are portrayed, however, gives the impression that the lay members are just randomers who will be picked off the street. I have a problem with the way section 15 is constructed. It is definitely one of the areas that needs amending. There are people working in the Legal Aid Board, legal academics, victims' advocates and many others from all walks of life who would have expertise in dealing with, for example, the outcomes of sentencing policy and who could offer some extremely useful input.

With the best will in the world, simply changing the system for how judges are appointed will not change how judges administer the law or affect sentencing outcomes, for example. A few years ago I attended the Irish Penal Reform Trust's annual lecture. The focus on that particular occasion was sentencing guidelines and the work of the sentencing council. I was shocked to note how well the UK system works and how well it is resourced when compared to ours. In the UK, ongoing training is the norm in order to ensure consistency in sentencing. There are ongoing efforts in that regard which are properly resourced. The speakers went through the methodology involved which was very impressive. It is recognised in the UK that one will not get consistency unless one puts a system in place. Consistency does not happen by accident. Once a rigorous system is in place, it matters less who is sitting in the judge's chair. Judges work within a proven system, thus removing the likelihood of random, inexplicable sentences or other decisions which are open to human error. The other interesting point I took from the UK example is the make-up of its sentencing council. This is a body with a number of non-judicial members, although not a majority of lay members. All members have senior roles in the field of justice. It was the opinion of the keynote speaker, Lord Justice Colman Treacy, that the breadth of viewpoints had enhanced the work of the sentencing council and it was quite interesting to hear that. We believe that some of the same will be true of the JAAB and so we will support this Bill on Second Stage. However, we do so with a serious caveat. We do not see the Bill as a panacea for fixing a system which urgently requires greater diversity and modernisation. There are several sections that require amendments.

It is important to note that the Judiciary has served us well. There is no doubt that there are many examples of good decisions but there are also many examples of poor decisions. We cannot have a blanket acceptance that every decision is good. Were that the case, we would not have miscarriages of justice or appeals lodged to decisions and so forth. That said, the Judiciary has largely been good.

We constantly argue that Second Stage should be based on the principle of the legislation and we resent the fact that very often the Government stops legislation from progressing beyond Second Stage to Committee and Report Stages. However, the shoe is on the other foot on this occasion, with the way things are panning out. This Bill is an example of legislation that can be improved on Committee and Report Stages. This morning, the Taoiseach said that the Government would be accepting amendments but then he qualified that remark quite quickly. There needs to be an openness to improving this legislation. The Government must be open to accepting what may be challenging amendments. The Bill went through the pre-legislative scrutiny process over quite a period of time. That process is one of the better examples of Oireachtas reform. Issues were highlighted during that process and quite a lot of expertise was built up during scrutiny which will be brought to bear in terms of tabling amendments. The Social Democrats will support the Bill on Second Stage.

Deputy Eamon Ryan

The Green Party was in two minds about this Bill when we spoke among ourselves in considering the issue. I decided earlier to inform myself by listening to the Minister's contribution and the various positions taken on the legislation. While we had a rough idea about what our position would be, we decided to wait and see what the debate was like. Having listened to the contributions and parsed the arguments made by the Minister, I concluded that the former Supreme Court judge, Mrs. Justice Catherine McGuinness, a highly reputable, honourable former member of the Judiciary and independent woman of great renown and repute, is absolutely right that the essence of the Bill is a deliberate kick in the teeth to the Judiciary. I say this with regret because if it is accurate, as I believe it is, it is a deeply worrying development in terms of how the Government works.

I read the Minister's speech many times to try to parse from it the key arguments in favour of making the proposed changes. He noted that the current system had drawbacks, describing the arrangements in place at present as limited in a number of respects. He indicated that the Judicial Appointments Advisory Board is not able to promote judges to a higher court. We should be able to rectify this limitation by broadening the provisions on the current arrangements.

The Minister argued that proper resources were required to oversee this process and a case can be made in this regard. Deputy O'Callaghan had a point, however, when he argued that we were in danger of creating a quango by appointing a director, establishing an office, providing for statutory functions of reporting and introducing the paraphernalia associated with a new body. Notwithstanding this, one could argue that resources are needed for this purpose. As far as I can discern, this is the only substantive argument being made in respect of the limitations of the current system.

The attack on the Judiciary in the proposals lies in the recognition that the Government has deliberately increased the number of members of the new judicial appointments commission beyond what it had originally intended simply to ensure a lay majority on the commission. I note the Minister's point that this is not a constitutional issue because the Constitution does not provide that the Judiciary must be involved in judicial appointments. As such, we are free to approach this issue as we wish. However, the Minister openly admitted that the Government decided to accept the arguments made by the Minister for Transport, Tourism and Sport, Deputy Ross, that we must have a lay majority on the commission and that it would be wrong to allow the Judiciary to have a majority on the commission. While we may hear a justification in subsequent speeches, no argument was made to support the view that a lay majority is better than a judicial majority. Similarly, and this is the key issue for Mrs. Justice Catherine McGuinness and members of the Judiciary, the Minister did not present a single argument to support the view that a lay person as opposed to the Chief Justice should chair the commission. This can only be viewed as an insult to the Chief Justice and the legal system. I regret that this provision has been proposed. While no one disagrees with the need to modernise the judicial appointments system, is it necessary to kick the Judiciary? Is that a clever development?

I listened with respect to the Taoiseach's arguments on this issue. His main argument appeared to be that the United Kingdom takes this approach to judicial appointments. I am slightly concerned that an Irish Parliament is looking to Britain for a model for our judicial arrangements. We have a different tradition, one of which I am very proud. The British legal system could learn a thing or two from the constitutional democratic and republican system we have. To have a Taoiseach citing British legal and constitutional arrangements is a weak argument in defence of the Bill before us.

When one hears the word "elite" being bandied about endlessly and one sees Fine Gael siding with Deputy Boyd Barrett on the issue of this elite, it has shades of The Daily Telegraph headline "Enemies of the People" in reference to the British judiciary. The Minister for Justice and Equality can shake his head but that is what I heard in the contributions and it is not where I want to go.

Deputy Charles Flanagan

Did the Deputy hear it from anyone on this side of the House?

Deputy Eamon Ryan

No, in truth, I did not hear it in the Minister's speech.

Deputy Charles Flanagan

It is important to hear that because the Deputy has made a pretty staggering allegation.

Deputy Eamon Ryan

Did the Minister not hear it in the contributions of Deputies on the other side who support the Bill?

Deputy Charles Flanagan

I hear it every day.

Deputy Eamon Ryan

That instinct is not where we should go but unfortunately it is where the Bill is coming from. There is nothing wrong with being popular but when it moves into enemies of the people territory, which is what I fear we are doing with the calculated attack on the Judiciary to which I referred, I start to have concerns.

I am proud of our courts system and Judiciary. I am proud that our constitutional system has, at its core, the republican courts established at the foundation of the State which were from and of the people. The reason we must be careful to protect the independence of the Judiciary is that its role is to protect the people from us. That is the strength of our constitutional system. Since the foundation of the State, the Judiciary has been independent and has proved itself adept at protecting the power of the people that derives from the Constitution, as opposed to a monarch or this House. The Judiciary protects our constitutional republic. These are the reasons I am concerned about this vicarious kick, a Mrs. Justice Catherine McGuinness described it, that has been aimed at the Judiciary.

While the legal system is archaic and has its failings, including in the King's Inns and benching systems, it also has strength. I do not deny that we derive some benefits from the traditions of the English system. It is not all bad when one considers other international systems that we could adopt. The universal view among Deputies who spoke in this debate, including those who support the Bill, is that, by and large and with some exceptions, the Judiciary has served people well. For this reason, the attack on it presented in this Bill is a cause of serious concern.

There has been undue political influence on judicial appointments over the years. The current and previous Governments have a case to answer in this regard because, from what I have heard, the level of political influence on judicial appointments in recent times has been slightly higher than average. The controversial issue is not only who secures judicial appointments but also who can get work. While I am not directly connected to the legal profession, this is what one hears. There is truth in the argument that the system is not sufficiently inclusive of people from different backgrounds. While the system is by no means perfect, it is not all bad either.

It is right that the political system has responsibility for appointing judges. There are, naturally, connections between the judicial and political systems. The legal and political professions, if politics can be described as a profession, are similar. In any event, legal professionals and politicians engage in similar tasks to the extent that we speak, are interested in public affairs, seek to win arguments and are constitutional office holders. This is all the more reason that it behoves politicians to be careful in how we manage this issue.

One of the other failings of the judicial system is that it is, like this House, too adversarial. We should seek ways to find mediated and other solutions. We should use this opportunity to rethink, reconsider and give some steer to how the Judiciary or courts system could achieve a more mediated approach. I will suggest one form of mediation that may be warranted.

We should accept the suggestion of former Supreme Court Justice Mrs. Catherine McGuinness and consider an amendment on Committee Stage to restore the role of the Chief Justice as chair of the proposed commission, accepting that the broad parameters of the technical issues in terms of appointments need to be modernised, but that we do not need in that process to give a vicarious kick to the judicial system. Such an amendment might have to be accepted in the Seanad if we cannot get it through this House; we will have to wait to see what the numbers are. Perhaps some Fine Gael Members might agree with me that we do not necessarily need to give a kick to our constitutionally independent Judiciary at this moment in time. Who knows what the numbers will be?

A mediated solution would achieve agreement and defuse this unnecessary row that has evolved. It is not the key issue, given that there is not a crushing need for us to address this among the range of issues that we have to face. It is an unnecessary fight that has been brought on for unnecessary purposes. As a mediated solution, I suggest that we consider such an amendment or an amendment to the effect that the numbers do not have to be stacked up one way versus the other to show that this is a lay or political triumph for some over the Judiciary. We will be suggesting such amendments on Committee Stage and looking for support for their acceptance across the House. If we did that, this Bill would sail through and be a good service to our democratic, constitutional Republic.

Debate adjourned.

Dáil Éireann debate - Tuesday, 27 Jun 2017

Judicial Appointments Commission Bill 2017: Second Stage

Deputies

Dáil Éireann debate -
Tuesday, 27 Jun 2017