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Dáil Éireann debate -
Wednesday, 28 Jun 2017

Vol. 956 No. 1

Judicial Appointments Commission Bill 2017: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

I spoke earlier today about the need for diversity in our Judiciary. We need to bring about change in a constructive way so that the Judiciary represents, in the broadest possible way, all of our society and all our communities. We have made very significant progress in one area of our Judiciary in recent years. In 1996, some 13% of judges were female, but that figure has now increased to 38%, which is very close to the critical mass of at least 40% we need to have proper gender balance in our Judiciary.

I spoke earlier about minority communities, particularly the Traveller community, which accounts for a disproportionate proportion of those who are confined in our prisons. I am not suggesting anything other than that we should strive to finds ways of supporting, nurturing and encouraging members of all of our minority communities and our diverse and different ethnicities to get involved in becoming lawyers and to strive to be judges within our legal system.

Another issue that arises is the question of part-time judges. I know that, in some jurisdictions, judges are not necessarily full-time lawyers. They can be part-time lawyers. It depends on the level at which they operate. The arrangements that are in place in other jurisdictions allow judges to bring a new dimension, new opportunities and new insights to judicial decision-making. I think the issue of career breaks for judges is also an important one.

Ultimately, we must have trust in our Judiciary. It is a core part of our legal system that all our judges must be seen to be independent, highly educated and informed. They must be capable of independent and enlightened judgments. We should support anything that helps to bring about that outcome. If we can attract more people at an earlier stage into the career of becoming a judge in our courts, for example, by providing for a particular career path which guides them and allows them to make progress, we will help them to grow into this hugely valuable position at the heart of our democracy. It is important that our judges are seen to be independent at all times.

Some of the criticisms that have been levelled at this legislation relate to the proposal to provide for the commission to be chaired by a lay member. In other jurisdictions like England and Wales, a lay person chairs these commissions. The same thing applies to the Judicial Appointments Board for Scotland. However, the Northern Ireland body is chaired by the Lord Chief Justice of Northern Ireland. It is very clear from our adjoining jurisdictions that the role of a lay person in acting as the key person on these commissions, obviously advised by other lay people and by legal people, is a proper and reasonable outcome from the appointments that are made. I understand from the Oireachtas briefing note that, throughout the British Commonwealth, 71.8% of equivalent heads of court serve as chairs of the judicial appointments bodies.

According to the British Institute of International and Comparative Law:

The administrative logic of this argument is clear, and in jurisdictions where there are real concerns about political interference in judicial appointments it may be best to ensure that responsibility for scheduling meetings and ensuring that vacancies are timeously [this is a word I am not quite clear on] filled is in the hands of the judiciary. Where this is not the primary concern [it is not the primary concern in this Irish jurisdiction], different considerations may support the introduction of a lay chair; such a person could bring experience of management and human resources to the operations of the commission.

The Venice Commission of the Council of Europe has recommended the election of a chair from among the non-judicial members of the 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". It is exceptionally clear, therefore, that the involvement of lay people as chairpersons of commissions like that proposed in this legislation is reasonable and practical and works. It will bring a new insight into what should be happening.

I note that significant comments have been made by the Opposition and judges have expressed strong reservations about the lay majority proposal. Our court system trusts lay people who are selected from the register of electors to decide whether somebody is deemed to be guilty of the crimes with which they are charged. This is particularly relevant in criminal cases where it is very important for the right decision to be made. Like everyone else, judges have full confidence in the manner in which this important part of our democracy works.

I do not see any reason suitability qualified people should not be members of the lay commission. Equally, I do not see why it should not be chaired by a lay person. I believe this approach will add to public trust and to diversity among those who are deciding who these judges should be, what skills and what capacity they should have and what personal qualities they should bring to the decision-making process.

I mentioned earlier that this is a question of representing all the people. There is a belief in many quarters that the members of our Judiciary tend to come from a particular socioeconomic background and from particular schools. It is believed that this tends to be their sole and only career path of a specific kind. It is good for our society that we create as many variable and equivalent paths of progress to become members of the Judiciary as we can. We should be selecting people who represent the broad ethnic diversity of our society. This is necessary so that people can have absolute faith and trust in our Judiciary.

I have been in the courts. I appeared before six wonderful justices in the High Court when I took a civil case. I still have my house because I won every time. It might have been the worry of losing that made my hair turn grey. I fought a great civil battle some years ago to protect our heritage. We won because we had good free legal advice and good free advisers who stood up for the principles we believed in. Most of all, we got fair, balanced and honourable judges who listened to our case time and again with great wisdom.

Why change the system?

I advise the Deputy not to go knocking down any historic buildings in Kerry.

I will be after him if he does. We won our case and got our costs. There is a certain intimidatory presence in the High Court. One walks up the stairs and a man comes flying down with a stick. I believe he is the judge's beadle and he pushes people away from the great and honourable judge who ascends the stairs, allowing nobody near him. There are outdated and outmoded customs in our courts, and I personally do not agree with the gowned and wigged barrister. It no longer makes sense to wear mourning for a queen who died in the 15th or 16th century.

This is very important legislation and it is important that it be debated properly.

The provisions in this Judicial Appointments Commission Bill represent key commitments in A Programme for a Partnership Government and should come as no surprise to the Judiciary or anybody else. Reform of the judicial appointments process is to ensure it is transparent, fair and credible. A Programme for a Partnership Government proposes to address the process of judicial appointments and makes a number of recommendations: to replace the Judicial Appointments Advisory Board with a new judicial appointments commission; to appoint an independent chairperson, selected by the Public Appointments Service and approved by an Oireachtas committee; to consist of a lay majority, including independent members with specialist qualifications; to reduce the number of suitable candidates shortlisted for appointment for any vacancy by the judicial appointments commission to not more than three; and that the chairperson of the judicial appointments commission will be asked to attend the justice committee annually to report on its statutory remit. It is very important to point out that the new commission will include the Chief Justice, the President of the High Court, the President of the Court of Appeal, the Attorney General, a Bar Council nominee and a nominee of the Law Society. Thus, the Judiciary and the legal profession will have a substantial and significant influence on nominees for appointments.

There must be a separation of judicial and Executive powers once appointments are made. However, it is the constitutional right of the Government to make appointments to the Judiciary and to enshrine that process in legislation which is clear and transparent but which is also competent and fair. The main areas of conflict seem to be around the following questions. Should there be a lay chairperson? Should there be a lay majority? Will lay members be suitably knowledgeable to make a proper judgment on the suitability of nominees? It is open to the Judiciary to try to influence the proposed legislation but it should also be conscious of the separation of powers. Statements, including references to serious implications for the administration of justice, or stating that the process is seriously flawed, does not accord with international standards, is ill-conceived or ill-advised, are incorrect and unfounded. This reform has been in the programme for Government for 14 months and it should not come as a bolt from the blue.

We often criticise this Government for not introducing promised legislation or implementing items in the programme for Government. Much criticism is directed at the Minister for Transport, Tourism and Sport, Deputy Shane Ross, accusing him of having some spleen against the Judiciary. Any commentary should concentrate on the legislation and decide if it stands on its merits and is an improvement on the existing Judicial Appointments Advisory Board. It should not be directed at any one individual.

Appointments to the Bench have been highly politicised in this country, even if appointees in most cases leave their party political trappings behind them and distinguish themselves in office. It was not unknown for rising stars in the legal profession to make themselves useful to a political party in the hope they would get the nod for the Bench when the time was right. Previously, the politics of Buggins' Turn was in place, and whoever was in power got to make the plum judicial appointments. Cronyism was rife. The Judicial Appointments Advisory Board made recommendations and, often, many names were proposed, allowing the Government to choose from a large list. In the new system this will be limited to three nominees. The new process will be open, transparent and accountable. It is a modernising development that will enhance public trust in our judges, whose appointment must be above reproach. I believe that the Judiciary's misgivings are misplaced and that the appointed judges through this new system will be equally impartial and as distinguished as their predecessors, but that public confidence in the system of appointments will be strengthened by making the process more transparent. Recommending a member of the legal profession to the Judiciary based on merit and experience will not be weakened by having a lay majority or by having a lay chairman. I believe it will be fair, safe and just.

I was amazed to hear Deputy O'Dowd say he was unhappy with the system when there was an adjudication in his own case going back a number of years. I am wondering why he wanted to change the system that had served him so well. This Bill proposes a lay majority on the appointments commission, which will comprise seven lay people, three judges, one Attorney General and two representatives of the legal profession. It also suggests that the role of the Chief Justice, who would be on the committee, would be taken by some lay person. This is amazing and it is ridiculous that the Chief Justice, with so much experience having started as a solicitor, then become a barrister, then a judge, would be set aside in favour of a lay person who may know nothing at all about the operation of justice and the administration of fair play for people who come before our courts. The members of the Judiciary are the people who protect our people and there was no harm in the way the system operated up to now, with the judges selecting a person for the Government to present that person to be appointed by the President. It was transparent and I cannot see any need to change that system.

We need to protect the quality, diligence and independence of the Judiciary, who were appointed by the President on the advice of the Government. The members of the Judiciary have the key skills, knowledge and experience to select the people they think would be suitable to be judges. It is too vague for them to be selected by the Public Appointments Service and it is not as transparent as the process we had. Judges should be appointed on merit, experience, education and ability and this can only be adjudicated on properly and fairly by the members of the Judiciary who have worked in the same arena as the barristers or whoever is going forward to be selected as a judge.

They must have regard to the work ethic and, as I said, the ability, education and experience of a person putting himself or herself forward for appointment. The worry I have relates to who will make up the lay majority. Who will select them? The quality of applicants who will put themselves forward for appointment to the judicial appointments commission is a worry for me, as it should be for all Members. We all know what happened during the building boom, when some builders and developers knew what they were doing but many others who did not joined the queue and drove the whole thing mad and it all collapsed. There have always been fair and honourable judges in County Kerry who carried out their duties without fear or favour having lived among the people on whom they adjudicated. It is important to remember that we should seek to continue to deliver a fair justice system under which offenders will be penalised and those who have been offended or hurt will receive redress or compensation. It is most important to deliver justice for all of the people of the country, which we have had for many years.

Many speakers have said the proposed model would be similar to the British or English model. It amazes me that Sinn Féin is supporting the Bill. In the context of what happened to the Birmingham Six, the Guildford Four and many others, it is amazing to hear Sinn Féin is supporting this proposal if it is like the British system. That is ridiculous.

It must not be forgotten that lay people, as the Minister described them, are already involved in the justice system. Hundreds, if not thousands, of working people do jury service all over the country every Monday through to Friday. People from every walk of life make up juries in courts all around the country. They do a great job and provide a sufficient balance. We have a great Courts Service. I have been in court. We have all been afraid of judges and tried to stay out of court as best we can, but sometimes a person ends up there one way or another. I have faith and confidence in the judicial system. The judges are independent. They may have been appointed by Fine Gael or Fianna Fáil, but I cannot say they have only worked in favour of the party which appointed them. It would be a very bad slur to suggest that because they do not do so. They know and apply the law. They have been educated and gone through the mill, starting as solicitors or barristers and moving up the line to become judges. They worked their way up the line and have dispensed fair justice to all along the way.

There was no reason to hurry this Bill through and I wonder why it was selected ahead of the numerous Bills that would help people which are awaiting consideration by the House. Many Bills deal with more important issues than this. An example is the fair deal scheme for farmers, which I think is lousy. Many other issues need to be addressed such as help for the homeless or those awaiting hospital appointments. There is a lot of other work which could be done and on which money could be more wisely spent. We could be helping people such as those who are still being allowed to go blind in County Kerry and west Cork. There are many other pressing issues that should be addressed ahead of this one. How was it pulled out of the bag and put ahead of so many more important issues? I cannot remember all of them, but I do not think this Bill is a priority. I do not know what gripe or spite the Minister, Deputy Shane Ross, has with or for the judges or the judicial system, although that might emerge in time.

The Social Democrats will not be opposing the Bill. We recognise and welcome it as a very small step towards reform of the legal system. However, it is only a small step and it is hard to know what all of the hoo-ha inside and outside the House is about. I would have thought that the days of self-regulation were over, as they should be. The idea of setting up a body with a lay majority and a lay chairperson to make recommendations in respect of those who may be suitable to serve as judges seems absolutely sensible and I see no difficulty with it. Insofar as it goes, it is to be welcomed. However, one must look at the circumstances which led to its being brought forward. Although it has been talked about for a significant period, it has been rushed through in recent weeks in an attempt to mollify the Minister, Deputy Shane Ross, and ensure he would maintain his silence on the mess surrounding the appointment of Ms Justice Máire Whelan and just in case he was not sufficiently satisfied in getting the Garda station in Stepaside reopened. It was important, therefore, to have something further to offer him. To deliver before the summer recess what was seen as one of his pet projects was no way to produce legislation or do business. Then again, he can be difficult when he acts up. The impetus for the rush in bringing forward the legislation was to ensure he would be kept on board, although I am not sure where he would have to go to as both himself and the Minister of State at the Department of Justice and Equality, Deputy Finian McGrath, seem so comfortable in the Cabinet and are enjoying life so much that they are hardly going to walk off and cause a general election.

Be that as it may, there is no doubt that the fast production of this legislation was designed to distract attention from the mess made in the appointment of Ms Justice Máire Whelan to the Court of Appeal. This time last week, that issue was being discussed in the House and Opposition Members felt there was a need for answers and explanations to be provided. The Government line, of course, was that Members should not look back but rather concentrate on what it was proposing to do this week. In many ways, the Bill was a distraction from the issues at the heart of last week's discussions. As yet, there have been no answers to many of the serious questions that arose in the handling of the appointment of Ms Justice Máire Whelan.

The legislation has been hailed as a major reform, but it is nothing of the sort. It has been said it will bring more diversity to the Judiciary and the legal system. One could say that is the case in theory. However, if one looks at the pool from which judges can be drawn, there is no doubt that it is elitist. It is not until the legal system in general is reformed and that legal practitioners who are more reflective of the population as a whole can be put in place that there will be the potential to appoint judges who will bring greater balance and better reflect the diversity of the population.

There is no doubt but that the legal profession is extremely elitist. It is a closed shop. That is the nature of it in many ways, and that needs to be addressed. It has been identified as a closed shop for many years, but successive Governments have refused to grasp the nettle and provide the kind of reform that was required. This is despite the fact the troika identified the Judiciary and the medical profession as areas which required radical reform. That has not really happened. The former Minister for Justice and Equality, Alan Shatter, talked often about reforming the system, but when it came to it he introduced precious few reforms.

The King's Inns has a complete monopoly on the training of barristers. That is unacceptable. There is no reason that should not be opened up. Why are our universities not providing training for barristers? Why is it that an ability to eat large numbers of four course dinners is somehow regarded as establishing one's qualifications for serving at the Bar? Why is the system designed in such a way that an individual, whether he or she wants to qualify as a solicitor or barrister, has to have substantial funding behind him or her in order to survive as an apprentice or be indentured and be able to survive from his or her own resources without having a normal income? There are many archaic practices around the selection and training and qualifications of the legal profession and they need to be blown wide open. It needs to be opened up to people in general, including school leavers who want to have a career in the legal profession. It should be open to everyone who has the skills and can meet the qualifications in terms of points in his or her leaving certificate. It should all be based on a transparent, accountable system, which it unfortunately is not at the moment. If one is training the people who are supposed to be defending the law in this kind of clouded manner, where there is very little transparency, it does not augur well for the quality of the people who will be practising the legal profession. That is why it needs to be reformed, just as the Garda needs to be reformed. Anyone who is involved in defending or enforcing the law should be trained to the highest possible level and in the most transparent and accountable way, but that does not apply to the legal profession in general.

In terms of qualifications for serving on the Bench, I do not know why we do not have a system whereby people who are interested in becoming judges have to study a course to qualify for service on the Bench and why there is no academic examination of their abilities and their knowledge of the law. It seems like a straightforward thing. Most people have to have qualifications to qualify for a particular career, and I do not see why judges should not have to have them. Equally, I do not see why continual professional development is not a key part of the ongoing training of judges. Too often we come across situations where judges do not seem to be familiar with the law. This is true especially in terms of recent legislation that has been passed. I investigated why it is that judges do not use the many provisions that are available to them under the Children's Act to deal with anti-social activity involving minors and so on. There are many provisions available to them that are not used at all. Several of the measures available had never been used or were only used on a handful of occasions. There are issues of judges keeping up to date with their skills and knowledge. It should be addressed, and we should look at this like any other important profession that requires ongoing professional development, and indeed that requires a level of oversight. I am not suggesting that anyone in this House could perform that oversight, but there is a need for a greater level of oversight within the Judiciary itself. There is no doubt that there are a number of judges who leave something to be desired, in particular at the level of the District Court. They seem to be untouchable. We read about comments they make that are completely off the wall, things that are outrageously outdated, sexist or out of touch. There is a tendency to laugh at these things, but it is actually quite serious. Some of our judges are running District Courts like their own private fiefdom, as if they are not answerable to anybody. The reality is that they are not. There is a need for greater oversight within the Judiciary itself in order to ensure acceptable levels of performance of their jobs.

It is only when we start to demystify and democratise the legal profession that we will get people serving in it, at solicitor, barrister or judge level, who are more in touch with the real world and the kinds of issues people are running up against on a regular basis. The difficulties for victims are an example. Our judges in the main are drawn from a very elitist milieu and are very protected. They are generally private schoolboys and schoolgirls, and very often we have situations where they are dealing with issues that they have never come across in their own private lives and it may be beyond their ken or experience. Very often the responses from judges indicate that they really do not know the kind of world that is being presented to them in the cases they are dealing with. That is common in the context of gangland crime and community crime, such as serious anti-social activity. In these instances there does not seem to be an appreciation of the kind of torture that communities are being put through. There is very little appreciation of that because in the main judges are far removed from ordinary people's lives. That is a problem. There is no doubt about that. Judges need to be more in touch with the real world and with what life is like for many communities. There is a substantial cultural gulf there that is not healthy for a Judiciary, and is a product of the kind of elitist, protected professional sector that we should have blown apart long ago.

The Bill is a welcome step in so far as it goes. It only goes a very short way along the road, and so much more needs to be done if we are to have diversity within the profession. I have no difficulty with the idea of the commission being made up of 13 members, the majority of whom are lay members, with a chairman who is also a lay member. It should have happened a long time ago. It is interesting that the lay majority has now been welcomed in some quarters, in particular by the Law Society. That was a welcome move on its part. We also have to be aware that the proposed system is not especially unusual relative to the rest of the EU, where the majority of systems propose judges by way of a council for the judiciary or another independent body. While they may not have a lay majority, a lay chairman who is independent of the Judiciary is in place in England and in Wales where the chairman of the judicial appointments commission is a surgeon by profession.

There is no reason that someone needs a legal qualification in order to have good judgment of the kind of qualities and character that are required to be a good judge. Furthermore, the Venice Commission of the Council of Europe recommended the election of a chairperson from among the non-judicial members of the appointments body to bring about a balance between the necessary independence of the chairperson and the need to avoid possible corporatist tendencies within the council. That is a legitimate concern. While the Bill aims to encourage recommendations that are based on merit, merit is not defined by the Bill. Rather, it tasks the procedures committee with establishing the criteria based on a set of parameters set by the Bill. One has to wonder if this is the best approach or if a more prescriptive methodology should be adopted, perhaps in line with the five criteria for what constitutes merit used by the Judicial Appointments Commission of England and Wales when assessing candidates. The Social Democrats will not oppose the Bill as far it goes but it is a very small start and much more needs to be done to democratise and open up the legal profession.

I welcome the publication of this Bill and the opportunity to speak on it because it is an important issue of significant public interest and should not and must not be rushed or railroaded through the Oireachtas. As we all know, rushed law is frequently bad law. Adequate time must be given to proper scrutiny and examination of the proposed legislation at each stage of the process. While I welcome the Bill, it is not the silver bullet to cure all the ills of the system for administration of justice in this country. It certainly does not go far enough.

The Bill will change the way judges are appointed in Ireland. There have been calls for a more transparent appointment system for many years including from the Judiciary, legal professionals, the Council of Europe and various other interested parties and the public at large. The new judicial appointments commission will be made up of 13 members, and will have a lay majority and a lay chairperson. Appointment committees with lay majorities will be responsible for recommending a maximum of three candidates per judicial vacancy to the Minister for Justice and Equality. This replaces the current system where as many as 20 names can be submitted.

While this Bill arrived rather quickly, its roots stretch back some time to a consultation process that started in 2013. Various submissions were made including one from the Judicial Appointments Review Committee which stated:

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 system of judicial appointment in Ireland is by now demonstrably deficient, fails to meet international standards of best practice, and must be reformed if in more challenging times it is to achieve the objective of securing the selection of the very best candidates for appointment to the Irish judiciary and thus contributing to the administration of justice in a manner which will sustain and enhance public confidence.

The appointment of the lay majority and of the lay chairperson is eminently sensible and acceptable and the Law Society review and comment on this states:

The Society notes that the government has adopted an approach that is consistent with the recommendations of the Society’s submission in 2014; an increase in the number of lay members from 3 to 6 lay members and that these lay members will be recruited through an open competition. The Society is strongly of the view that such increased representation of lay members is important for two reasons: the first is that it ensures that there is a measure of diverse public interest represented in the judicial selection process.

The question of a lay chair which is new here is not new elsewhere in Europe and in England, Wales and Scotland. The real problem in the judicial appointments system is at Cabinet level, as we saw in the recent appointment of the former Attorney General to the Court of Appeal. That is where political interference has occurred and there is lack of transparency.

Arising from that, two questions arise. Why must judicial appointments be made at Cabinet level? Should it not be possible for the judicial appointments commission to complete the selection process and be given statutory authority to finalise judicial appointments?

I welcome the introduction of the Judicial Appointments Commission Bill 2017 to the House by the Minister for Justice and Equality, Deputy Flanagan. Radical reform of the current system of judicial appointments was a key demand of the Independent Alliance during last year's government formation negotiations. The programme for Government committed the Government to reforming that system to ensure that it is transparent, fair and credible and, with the introduction of this Bill, we are delivering on that promise. There has been a lot of debate, in this House and elsewhere, about the membership of the new judicial appointments commission proposed under this Bill. Should there be a lay chairperson or a judicial chairperson? Should there be a lay majority or a judicial majority? I support the proposals in the Bill that the commission should have both a lay chairperson and a lay majority.

I wish to focus, however, on the question of what kind of experience or expertise these lay members should have and, most importantly, what criteria they should apply when recommending individuals for appointment as judges. From some of the comments made in this House and elsewhere, one might think that the lay members of the commission will be a random selection of strangers pulled in off the street. The reality is very different. The Bill provides in section 15 that the lay members must have appropriate "experience, qualifications, training and expertise" in several areas. I welcome the fact that, among these areas, are "matters connected with ... human rights, equality or issues concerning diversity amongst members of society". Lay members with these backgrounds will bring important real world experience to the table when decisions are being made on judicial appointments. I also welcome, most particularly, the criteria set out in section 7 of the Bill, which will be applied by the members of the commission when making those decisions. The decision to recommend a person for appointment as a judge will now be based explicitly on merit and, subject to this overarching principle, regard shall also be had, first, to the objective that the membership of the Judiciary should comprise equal members of men and women and, second, and crucially, to the objective that the membership of the Judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole. I endorse this provision wholeheartedly, reflecting as it does my own long-held commitment to diversity and to working to advance the rights of all members of society, including in particular the disabled community.

Speaking on RTE radio's "Drivetime" programme earlier this week, University of Limerick legal academic Dr. Laura Cahillane commented on the Bill's objective of a more diverse Judiciary. She stated that in Ireland we have a very homogenous Judiciary and that research has shown that when judges are in control of these sorts of appointing bodies, they will always appoint judges in their own image. She said that if judges are all taken from the same sort of educational background where they have all gone to the same schools and are from the same sort of higher middle class background, one will have a repetition of all of these people being appointed. She pointed out that research had shown that when one involves lay persons in the process and where there is a lay majority, one gets a much more diverse Judiciary. These are the facts. This is the way society is run. To achieve this laudable objective of a more diverse Judiciary we must, of course, have a more diverse legal profession from which judges can be selected. This is an issue for another debate on another day. For the purposes of today's debate, I welcome this objective in the Bill.

We should all listen and learn from the following. Diversity encompasses a wide range of characteristics. As Minister of State with responsibility for disability issues, I have a particular interest in fighting for the cause of disability rights. We think of the many people in the disability community with excellent talents. Many of them have brilliant abilities which are often not reflected in our broader society. That is why it is a great pleasure and honour for me to be Minister of State and to change the mindset in Irish society. No disabled person should be excluded from any position in society for which he or she is otherwise educationally qualified solely on account of a disability. No disabled person, or person from any other diverse background, should be thought not good enough to become a judge simply because those who appoint judges think that they are not "people like us". These types of decisions may not be made consciously and those making them may not even realise that they are making them, but without a diverse range of lay members at the table these decisions will undoubtedly be made and we will continue to have Dr. Laura Cahillane's "very homogenous Judiciary" instead of the diverse Judiciary which this Bill has as its objective. These are very important aspects of the broader debate. I look forward to the day when our diverse Judiciary includes a representative number of members of the disabled community. In furtherance of this vision, I will be supporting this Bill.

We must challenge those who have sought to undermine the Bill. I reject the comments of Senator Michael McDowell, for example, and his personal attack on the Minister for Transport, Tourism and Sport, Deputy Shane Ross. Let us debate the legislation and the issue while leaving people out of it. Let us leave personalities out of it. This legislation will deliver on the programme for Government commitment to reform judicial appointments by removing the appearance or reality of political interference in the process. This is a very important aspect of this legislation. Many members of the public are of that view. The legislation proposes a transparent, independent system with a new judicial appointments system encompassing key features. These are an independent chairperson, a lay majority and a reduction in the number of candidates being recommended for any vacancy to a maximum of three. These are progressive proposals and I cannot understand why any Member of the Opposition would oppose such radical, fresh new legislation. The Bill is about, for the first time, merit. If one believes in a meritocracy and giving the best person the job, one should support the Bill. The Bill is about reform, merit, transparency and, above all, the future of justice in Ireland.

I welcome the general thrust of the Bill in that it places the appointment of judges on a more formal footing. Constitutionally, of course, it will remain the function of Government to appoint judges. The Bill will not change that. What it will change is the somewhat ad hoc method which has been used since the foundation of the State. However ad hoc it was, it has served the State well in the provision of a consistently independent Judiciary which remains unafraid to find against any Government of the day, which is as it should be.

While I welcome the general thrust of the proposed legislation, I have a number of concerns. There is a well-known legal maxim, nemo judex in causa sua, which holds that no one should be a judge in his or her own cause. As with all rules, there are exceptions. In the context of the Bill, the exception is that it is obvious that lawyers, in particular judges, should have a majority say in who becomes a judge. The Bill holds the opposite. It proposes to have a majority of lay people making the decision as to who becomes a judge. It is simply the case that the lay majority on the commission will not be familiar with the work of the proposed judge. They will not know their record, their personality, faults or advantages and will most certainly have never had the opportunity of experiencing their skill or lack of it in open court. For the avoidance of doubt, my issue is one which is not particularly local. It is of note that internationally where there is an independent appointments process, lay people are generally not in the majority. It is something I would like the Minister to look at as the Bill passes through the House.

The Chief Justice, whoever holds that office, is the foremost judge in the country. It is he or she who swears in the President and who takes the oath from judges being appointed. There is no reason the Chief Justice should be debarred from becoming chair of the commission. Finally, the Bill proposes that a judge of neither the Circuit or District Court will be a member of the commission. This is an oversight as both courts account for the vast majority of legal business transacted in the State. They are also the courts in which the vast majority of solicitors and barristers practice every day.

While I support the thrust of the Bill, there are a number of issues about which I have a particular concern. Other Members share those concerns. This is a very important Bill. The independence, quality and reputation of our Judiciary hangs on it. I ask the Minister to address these issues as it is debated on all Stages.

I welcome the opportunity to make a contribution on the Bill. I wish to read a comment into the record:

The present plight of politics is the subject of constant and generalised comment, but comment on the legal profession, particularly the courts, is more careful, although no less cynical. Commentators are more fearful of the lawyers than the politicians. This is a very salient reality for those of us who believe that not just radical reform, but revolutionary reform, is needed across all the institutions of the State. Reform of politics and of the Oireachtas will be relatively easy compared to that of the legal profession which is the most entrenched and unaccountable power bloc in modern society... Getting accountability from the courts and the legal system will not be so easy. In any democracy, the judicial branch must be completely independent of the executive and legislative branches. Yet even judges must be accountable to somebody. Some unthinking people believe that these two propositions are irreconcilable.

This article goes on to refer to a judicial board under the chairmanship of the Chief Justice and the need to give the Chief Justice and the Presidents of the High, Circuit and District Courts a far greater role in relation to the standards obtaining in their courts. Some 17 years after it was written, we are repeating the same argument which was put forward by the late Jim Mitchell, former Deputy, in the year 2000. In the meantime, nothing has happened.

Therefore, I compliment the Minister, Deputy Shane Ross, on the stand he has taken for many years on this and many other issues. When he was a member of the Committee of Public Accounts, he was vocal on the need for change and reform and not afraid to question those who held power in Departments and hold them to account. I do not associate with and want to dissociate myself from the many who have passed personal comments on the stand the Minister has taken in that regard. This morning, I heard his speech made last night repeated. I must say he gave a good account of himself and the reforms in which he obviously and sincerely believes, but the Bill falls far short of what he wants. I suggest to him that he knows it and I am saying it to him directly out of respect. I firmly believe Fine Gael has no interest in the Bill. Judging from past comments by members of the party, dating back to even before 2000, it is quite clear that the Minister has a different point of view.

The system we are now trying to develop in the context of the Bill is one with which I agree. I like the conversation and debate on the issue. I believe it is necessary. However, as a Parliament, we are rushing into it and the legislation without thinking it out fully.

The fact is that we will do irreparable damage to the judicial system if we continue the way we are going. We need to stop and think about the reforms we want. On some of them, I absolutely agree with what the Minister is saying, but we are going about it in the wrong way.

In preparing for a debate such as this, one tends to Google. I read about the system in place in Canada and other countries. There are so many models of administration, appointment systems and justice systems that we could take from any one of them and apply it here and it would work, yet we do not want to do that. We want to mess around with the system, rush the legislation through Parliament and come up with what we think is a solution, but it simply will not work. I refer again to the document dating from 2000 that spoke about the Chief Justice and the presidents of the other courts. It all makes eminent sense to me, but what does not make any sense and what annoys the public is that we are continuing to offer in this House the excuse of the separation of powers as the reason we cannot talk about anything to do with judges. If we had listened carefully in the past few years, we would have known judges did not have any difficulty in making comments on the Members and processes of this House. They just said whatever they wanted to say. I agree fully with the separation of powers, but I do not agree with the use of that position to stop answering questions of or seeking answers on behalf of the public from those in power. I see no reason we cannot have a debate in this House on issues affecting the judicial system without being accused by the courts of doing something wrong.

In 2001, there was a debate at the Committee of Public Accounts about the wards of court system. Everyone walked on eggshells to ensure they did not upset the Judiciary which the committee was asking to account for the millions of euros looked after by the court system. It was found that the court system did not have an accountant reporting to the Secretary General at the time and every year since. The Secretary General of the Department of Justice and Equality at the time said the State would have to pick up the losses incurred in the funds. I have tabled a question today to the Minister for Justice and Equality about this matter, but if that is a fact, the question of what the Minister will do about the losses must be answered. Will he undertake to challenge the audit of the wards of court system? Will he insist on receiving a complete report on how the money was invested and a reason some of the huge amounts of money involved - up to €250,000 or €500,000 - are now down to €20,000 or €60,000? Will the State pick up the tab for the balance? Will the Minister insist on the courts speaking directly to and accounting to each and every one of the families who are trying to get answers?

The Minister might ask what that has to do with the Bill. It has everything to do with it. I was not a member at the time, but in 2001 the Committee of Public Accounts was told that it could not ask any question about the matter because it was related to the courts. That is a fig leaf. It is just smoke and mirrors and everyone knows it. It would not damage in any way the judicial system or the concept of the separation of powers. It is simply a question of having the political will within the Department of Justice and Equality and on the part of the Minister in this case to get to the truth for the people we represent. My biggest fear in terms of the commission and the selection process is that the commission will end up being manned or womaned by the usual suspects from either the Department of Justice and Equality or the justice area. That is my greatest concern.

We have to ask about the quality of the people we appoint as judges. If we agree that all of the judges appointed up to now are wonderful people and doing the right job - I do not have any complaint about them - I have a question. When the family in the case of Charles Farrell and the Department of Agriculture, Food and the Marine write to the Department of Justice and Equality demanding answers and asking for justice, why is it that they are told - it is in correspondence and the Minister can check it - the Department cannot deal with it owing to the separation of powers? The man was robbed by the State. I do not expect the Minister to know about these cases, but they are familiar to those of us who were or are on the Committee of Public Accounts. There is also the case of Douglas Fannin and the Department of Agriculture, Food and the Marine. Judge Reynolds chastised the Department for its behaviour in the case. The man was vindicated in court.

I do not think it is in order-----

.

Deputy John McGuinness: It is. He was vindicated in court, but the Department completely ignored the judge and the ruling and has still not paid him. It is another example of using the separation of powers to ensure another citizen will not get the justice he deserved.

The Minister should read about the case and the judgment and consider the activities of the Attorney General and the Office of the Director of Public Prosecutions in relation to Lucia O'Farrell. Again, we are told it cannot be discussed because of the separation of powers. What went on was scandalous and tells us everything about what is wrong in the State. We have heard it in this House time and again, yet no one wants to get involved in finding a solution because it relates to the courts.

All of us in the House know it is a complete spoof. If one goes to the King's Inns, which has charitable status, and looks at the appointment of judges, one will see that immediately on their appointment, they become benchers. That is the title they get. The benchers mix with former Attorneys General and former Secretaries General of Departments, who look after the wine and the good food. They all have a chat together in these plush surroundings and barristers, judges, Attorneys General and Secretaries General share stories and we think it is okay. I do not think it is okay. I do not think the Minister, Deputy Ross, thinks it is okay. I tabled a parliamentary question on King's Inns and the fact they automatically make benchers out of judges whether the judges like it or not. They are all part of this club. Needless to say, the parliamentary question was only half answered.

There was no need for a parliamentary question. The Deputy can ask the fellow beside him.

I could equally ask the Minister. If the Minister is so clever about it and understands it so well, because he is part and parcel of the status quo, he might do something about it. He might do something about it because he knows more about this than I do. He probably knows more about it than the Minister, Deputy Ross, knows and that is why he is pulling the wool over his eyes on this legislation.

I could not do that.

He probably knows it as well but he has to go along with it to cover his backside because of the commitment in the programme for Government. What I say to the Minister, Deputy Ross, is not to be afraid of the guys and gals he sits around with in Cabinet. He should be himself as he always was and he will achieve a lot more because they are not up to scratch. They are attempting to pull the wool over his eyes.

I will turn to the repossession courts. They are another example of kicking the can down the road. We in this House set up those courts. Every Wednesday in Kilkenny, there are 30 or 40 cases before the repossession court. In fairness to the registrar, she kicks the can down the road and leaves those people in their houses. Here is the scene: the court is full of children with their parents or individuals under pressure or in distress. The registrar is there and there is whispering all around her desk because that is the way they do it. On one side there are the barristers and solicitors, just like Deputy Jim O'Callaghan. They are all there. They are all ordinary people but they are all playing the game.

On the other side, there are the poor distressed and traumatised families in front of a high bench. The can is kicked down the road. Whose fault is that? Is it the quality of the judge, the quality of the legislation or is it our fault? I suggest it is our fault. We have made a mess of that legislation. We have put registrars and judges into awful predicaments, determining the future of families, their properties, well-being and mental health. We sit in this House discussing this Bill when there are so many other key issues facing families and courts, such as repossession and their futures. We have 77,000 people out there with distressed mortgages. We have the banks now inviting in the vulture funds. In the Seanad today, the Government refused to consider a solution to that problem in terms of the presentation of a co-operative society and a Bill. Political parties, even my own, do not know how to respond to it. I do not think they want to respond to it. They like the status quo. It is a comfortable auld place to be and they will not get into trouble. What happens? There are 77,000 people before the courts and we kick the can down the road and continue to abuse family after family. It is reprehensible.

The Minister, Deputy Ross, sits in Cabinet. He has approved another Bill, the Public Sector Standards Bill. It comes before the finance committee and we dealt with it on Committee Stage. It is stalled at the moment because the lads keeping the Government in power on this side of the House are trying to put a check on the Government.

Including Deputy McGuinness.

Including me, yes. I am Chairman of the finance committee. Does Deputy McGrath not sit there watching me do it?

And only for me, where would the Deputy be?

Deputy McGuinness should not forget that the "lads" include him.

Deputy McGrath will have his time. He should take it easy. The fact of the matter is that that Bill explicitly excludes the Judiciary. There will be no more nasty forms for them to fill out like the ones the Minister, Deputy Ross, has to fill out on his returns, or which county councillors have to fill out. There will be no nasty forms like that for them. They do not have to report at all. The Minister stood over that Bill; he okayed it. He is also okaying, which I do not like, the setting up of another quango. It is a quango. There will be a director, staff, the judicial appointments commission, which will be 13 people, and the office to back it up. I am sure all of these will come with glossy magazines and reports at the end of every year and everyone within the system will be delighted because the status quo approves. All of that is for 20 jobs a year.

I imagine if the Minister picked a few good lads out of this House, they could interview those potential judges. They could probably go down through the Bangalore Principles with them, which we have not signed up to either. They could probably deal with their independence, impartiality, integrity, propriety, equality, competence and diligence. It is more or less what is wanted for most jobs. A decision could then be made and we could get on with the job and then have separation of powers.

Let us have accountability in this House for the citizen. Let us have good, decent legislation that reflects the will of this Parliament, not legislation that is just pulled together with the only real conviction and passion behind it being that of the Minister, Deputy Ross, not Fine Gael for sure. I ask the Minister to give this Bill plenty of time in the House and to ask for and encourage amendments to the Bill. Far too much legislation passes through the House and it is only after the passage we discover how bad it is. I suggest plenty of time for Committee Stage and to listen to the Opposition or we might press the other button, not the abstention one.

I remind the House we will adjourn at 10.15 p.m.

I am fearful now having heard the reference to the button. The nuclear button is the one that has been referred to.

The Deputy can rely on the rest but I do not know what I will do.

I presume it was intended to intimidate the Government but it has equal impact on the Opposition so I would not go too far down that road if I was Deputy McGuinness. I am glad to have an opportunity to speak on this Bill. It is promised legislation in the programme for Government. People seem to be referring to it as a bolt out of the blue but it is already in the programme for Government, as agreed before the Government was formed. It is an unusual Government in the way it was formed. Everybody was given the opportunity to form a Government in the past 12 months.

They are not here. They are absent.

Most of them are not here now. The Deputy's party was offered 50:50 participation in Government. Deputy McGuinness could be over here participating in that process right now if he chose to at that time. There is no sense abdicating one's responsibility, standing aloof and pretending they can afford to criticise yet not getting involved. Various other parties were offered a similar opportunity and they did not accept it. I commend the Fianna Fáil Party on at least having the guts to stand up and provide the country with some degree of stability at a time the country needed it.

I have listened and watched developments in the House in recent years. The previous speaker, Deputy John McGuinness, made a great case in respect of the degree to which the Houses of the Oireachtas should influence and investigate the Judiciary and judicial system. I do not agree with him because the separation of powers of must be distinct, respected and honoured. Houses of parliament should not undertake the work of the courts, as the Houses of the Oireachtas have tended to do in recent times. For example, some of the recent investigations of the Committee of Public Accounts have been completely out of order. The committee does not have the power or authority to deem a person to be guilty. Its role is solely to investigate the financial affairs of the various Departments.

Arising from the Abbeylara judgment, the same committee is presumed to have acquired powers that allow it to investigate everybody's responsibilities and make conclusions that appear to deem guilt on the part of the persons being investigated. This presumption is wrong. The reverse is the case because the inquiry into the Abbeylara case was stood down and a subsequent referendum to give extra powers to a committee of investigation of the Houses was lost.

I agree that the Government has a function in appointing judges to the Bench or making recommendations to the President, as provided for in the Bill. I do not agree, however, that the judicial system will be undermined by the establishment of the judicial appointments commission. The Judicial Appointments Advisory Board is already in place and its functions will be changed to some degree under the proposal in the Bill. I do not agree with Deputy Jim O'Callaghan that the changes undermine the whole judicial system. While I respect the Deputy's eminence in the legal profession, I believe his conclusion is wrong. I respect his views on the matter but there is a tendency to allow political shadows to overcome his thinking on the matter.

We must learn to respect each other. Members have a tendency to use a sensational method of making accusations against persons in the House or outside the House in such a personal way as to make it objectionable. The courts have dealt with some of these matters and, thus far, they have found in favour of privilege, which should and must be defended. However, we are fast approaching a time when the courts will find otherwise. They will find that the Houses of the Oireachtas, in one shape or form, have overstepped their authority and the rules of privilege and damaged the reputation of a person outside the House who has no recourse to reparation in any shape or form. Once mud is thrown, it sticks and the damage can never be undone.

Incidentally, I will paraphrase two recent judgments in which the courts ruled that the Houses of the Oireachtas had their own provision to deal with such circumstances. My interpretation of these judgments is that the Houses of the Oireachtas, through the Ceann Comhairle, Leas-Cheann Comhairle and those of us who sit temporarily in the Chair, have a responsibility to protect the reputation of people outside the House, while also allowing issues to be raised. However, they must do so without allowing the identification and personal vilification of someone who has no possibility of responding. The only place one can do this is in court, where one can say anything one likes. That is the job of the courts.

The Houses of the Oireachtas have tended to move into that area in recent times and we will pay a price for doing so. The individual Member will not have to pay fines or make restitution but the taxpayer will have to do so when the Houses of the Oireachtas are found to have been in breach of the laws of privilege and of failing to protect the reputation of persons outside the House. I will give an example. I was a member of the Committee of Public Accounts for such a long time that I decided to move elsewhere. The DIRT inquiry, which was a successful investigation, never once moved into the area where the courts might have overtaken us, although we were threatened several times. Members were not allowed to question politicians who appeared before the inquiry, including former taoisigh and Ministers for Finance. The reason was to ensure the hearing was not politicised because it is in the nature of politicians to seek advantage for political purposes when the opportunity arises. Members respected the ruling that we could not question the former Ministers or taoisigh. While the DIRT inquiry was controversial, from memory, I believe it netted £1.5 billion for the taxpayer at a time when billions were a scarce commodity.

The use of the Dáil or an Oireachtas committee for political purposes must be carefully watched, with particular reference to the finance committee and Committee of Public Accounts. The latter has been operating outside its jurisdiction and acting ultra vires on many occasions recently. We cannot treat the House as a court or treat each other as potential criminals. The disrespect we show for each other in this House is replicated outside. People come to the conclusion that we are all the same and do not have anything to offer and, as a result, they believe they can treat politicians, members of the Judiciary, gardaí, teachers, hospital medics and others similarly. Disrespect for authority is growing daily, as members of the professions to which I referred will immediately tell us.

During the debate on the Bill yesterday evening, I listened with interest to references to class distinction. For example, the King's Inns were described as a class-ridden entity which only the privileged can attend. That is entirely untrue. Many men and women throughout this country have sons and daughters who entered the King's Inns and did very well there and afterwards. It is grossly unfair to label institutions in that fashion for no other reason than political gain and advantage. I do not mind telling Deputies that in the House because I have told them the same thing privately. We tend to allow ourselves the luxury, privilege and entertainment of going down that path but the Houses of the Oireachtas are not the place for that. We can have that discussion in a debate in an outside forum but not in the Houses of Parliament. We are extending our realm into an area over which we have no authority. We seem to take upon ourselves with alacrity the right to condemn somebody outside the House without knowing anything about the subject matter.

People will have different views as to whether the proposed Bill is a good or bad thing and whether the Judiciary will have a sufficient number of members on the judicial appointments commission to be able to assess the suitability of candidates for the various positions that arise. Deputy McGuinness referred to the repossession courts, as they are known. I and other Deputies have visited the courts numerous times in recent years and I have witnessed heart-rending cases. Generally speaking, the judges have been very fair and given the benefit of the doubt in almost every case. We should respect and acknowledge that. In particular, I compliment the judges in the higher courts, specifically the High Court, where they have been the epitome of courtesy and have encouraged and given every possible opportunity to the individuals in question to make whatever proposal they wish.

They go out of their way to ensure that the lay litigant is not left isolated and has some reasonable knowledge of the process that is unfolding. I compliment them on it. There have been similar experiences at District Court and Circuit Court levels.

There will always be exceptions to the rule. We all know that. There are exceptions to every rule, including the rule in this House. Some Deputies are seriously dedicated and do the job that they were given to do day after day, week after week and year after year. They have a vocation, but vocations are fast disappearing from every facet of Irish society. Careers have replaced vocations. We need to take stock of that from time to time and review what we need to do, the kind of people we need to attract, what they need to concentrate on and what is their mission.

Some time ago, I read about the famous American hanging judge, Isaac Clark, although I am not certain about that name at all. He tried 13,000 cases and gave 187 people the death penalty, half of whom were executed. I am not suggesting that we should do that in Ireland, by the way. In his memoirs, he referred to the legal battle that took place in the courts between representatives and several times mentioned cases that he had lost but should not have. However, he suggested that, because he was beaten by his opposite number - his legal opponent - it was really just setting the scales right for previous events. His point was that perhaps it was not such a great idea to have the same legal opponents facing one another on too regular a basis. They got to know one another's strengths and weaknesses with the client perhaps being the loser in the end. Enough about that famous man. He was appointed by George Washington, who had to remove him later. Not that that is of any consequence in Ireland. I read about him many, many years ago.

I will revert to the independence of the Judiciary and the courts. The Government has the right to appoint people. The commission will nominate suitable people from here on. This was heralded and agreed in the programme for Government. I do not doubt that there will be differences over how the proposal can be improved, if it can be, but it is a form of independence.

I wish to dwell on the issue of independence for a moment, if I might. There is an ever-increasing urge to get an independent view about everything. That is difficult to get on any subject in any country, but particularly so in a small country. The Leas-Cheann Comhairle has been here for as long as me. If people assume that, in the course of the formation of the commission, they will be able to scout the country and find apolitical persons, all I can do is wish them luck, because there are no such persons. I have not encountered them yet. It would be a boring place if there were people like that and if we were not in a position to have a toing and froing in politics that did not interfere in the judicial process.

The proposal before the House is a reasonable one. Members of the legal profession who have concerns about it should make those concerns known because they can be accommodated. The House cannot direct what the Judiciary does, nor should we. Neither should the Judiciary feel intimidated by the Houses of the Oireachtas. We have to act independently, respect each other and respect each other's existence. We must try to ensure that the legislation that we pass is of a quality that is effective, sufficient, efficient and capable of meeting the requirements of a modern society. We need to keep that in mind now in particular.

I do not want to get into the issue of bail laws, which I have referred to often, and I will not be critical of anyone, but if we believe that the bail laws that the country has had to date, which are thankfully now being amended, can continue when we want to make a reasonable impact in terms of curtailing crime, we are codding ourselves. We can make whatever excuses about that that we like, but it is our job to change the legislation to enable judges and courts to deal with the situation as presented to them.

Debate adjourned.
The Dáil adjourned at 10.15 p.m. until 10 a.m. on Thursday, 29 June 2017.
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