Judicial Appointments Commission Bill 2017: Second Stage (Resumed)

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

Deputy Eamon Scanlon

The explanatory memorandum states that it is envisaged that the annual cost of the operation of the legislation will be in the order of €1 million in each full year of operation.

The reason our judicial appointments process needs to be reformed is to ensure that people are appointed to judicial office based solely on merit. For that reason, Fianna Fáil proposed legislation establishing a judicial appointments commission that is fully independent of Government and that would make recommendations to Government based on an independent assessment of the merits of applicants for judicial office. Unfortunately, the commission proposed by the Government will not allow for such an independent process of assessment. Among its faults is that the Bill will require the Chief Justice to sit on a commission that he or she will not chair. For instance, if a Taoiseach were to sit on a committee but not be its chairman, this would be dismissed out of hand by Government. The Bill also excludes the presidents of the Circuit Court and the District Court from full membership of the commission.

The Bill also proposes that the majority of the commission should be lay members, namely, persons who are neither judges nor lawyers. This grouping of judges and lawyers in the same category by the Government ignores the fact that judges are not members of the legal profession. The fact that they were previously members is not a basis to assume that judges and lawyers, if in a majority, will have a negative influence on this commission. It would be considered remarkable if surgeons in hospitals were selected by a panel the majority of whose members had never carried out surgery or even worked in a hospital. The Bill also proposes that the three persons recommended by the commission will not be ranked in order of merit. The failure to do so defeats the entire purpose of having a commission that seeks to recommend the best candidate.

It is regrettable that the proposals put forward by the Government are not for the purpose of achieving genuine reform but instead are for the purpose of appeasing one member of Government whose proposals in this area are ill-considered and deeply flawed. Fianna Fáil remains committed to achieving reform in this area as outlined in our own Judicial Appointments Commission Bill published in October 2016. At present, when a vacancy arises in a court, the Judicial Appointments Advisory Board places an advertisement in a newspaper or online inviting applications for appointment as a judge to the District Court, Circuit Court, High Court, Court of Appeal or the Supreme Court. The board will then receive a series of applications from lawyers because only lawyers can apply to be judges. The job of the board is to process those applications. In many instances, particularly in respect of the District Court, hundreds of applications will have to be processed. The job of the Judicial Appointments Advisory Board is to determine who is suitable for the position. It is not the function of the board to try to identify the best candidate. It is a filtering process in the determination of suitable candidates.

The Judicial Appointments Advisory Board is required under legislation to provide the Government with the names of seven individuals which it believes are suitable for appointment to a particular vacancy. Sometimes more than seven names are provided. If there are multiple vacancies, there will be many names put forward by the board to the Government. When the Government receives the list of names, it then makes its decision as to who should be selected. Under the Constitution, and also under the Government’s proposed scheme and the Fianna Fáil Bill, the Government can choose whoever it wants. It does not have to select a name from those provided. We believe it is appropriate that the recommending body should carry greater authority and that it should filter down its nominees such that the Government is aware of who it believes are the best persons for the position.

The second issue is why the system needs to be changed or, in other words, what is the weakness in the system. The weakness in the system is that when a large list of names is presented to Cabinet most of the members of Cabinet, in fairness to them, do not know how to go about choosing one person from a list of 24 for a District Court position. There is no reason that politicians should be aware of who is the most suitable or best candidate. The State papers from 30 years ago published over the new year included a record of Alan Dukes, when Minister for Justice, stating that he did not know who was the best candidate or who should be selected to be a judge. He said that he felt it was a matter primarily for the Attorney General. In fairness to members of Cabinet, most of them do not know who are the most suitable candidates. It is unfair to put that pressure on the Government.

It is true that people who have political connections are at an advantage if their names are on the list which goes to Cabinet. It is often said that canvassing should be prohibited. Many people who are appointed because of political connections turn out to be excellent judges, and we should not have a system where a person is excluded from subsequent nomination to judicial office because he or she was involved in politics. What we do not know is if there are good people who applied to be judges and who, as they did not know anybody in Cabinet or any Deputy, were overlooked and never got the opportunity of being promoted to the position of judge. For all of these reasons, the system needs to be changed.

We need a recommending body that can identify who it believes will be the best person for the position of judge. We should have a recommending body that ranks individuals in terms of their suitability for the job. Under the Constitution, the Government has the final say. This is appropriate. Regardless of what system is in place or how it operates, the Government can disregard the list of candidates provided and appoint a candidate of its choosing. That is the scheme that currently operates under the Constitution. However, it needs to be changed and broadened to ensure that it is fairer and that the best people - they may be people whom we do not know and who do not have connections - have an opportunity to be considered and appointed.

The Fianna Fáil Bill establishes a judicial appointments commission to recommend to the Government the names of individuals which it believes would be the most suitable based on merit to be judges. For each position, it will recommend three people. The Government's scheme has the same provision. Under our Bill, however, the three will be ranked 1, 2 and 3. In no way does this offend the constitutional prerogative that rests with the Cabinet. Under neither scheme must the Cabinet opt for anyone on the list. However, there is a benefit in the Cabinet being told by an expert body who it believes are the best people in a certain order.

Deputy Michael McGrath

I welcome the opportunity to contribute to the Judicial Appointments Commission Bill 2017. First, I want to address the level of priority, and the amount of Dáil time last week and this week, being given to the Bill. Others may criticise us for wanting to speak on the Bill but that is our right. The Government has prioritised the Bill in Government time. It comes at the expense of legislation in a host of other areas which have greater priority, for example, a report was published earlier this year on motor insurance. At least six different Bills will be required to give effect to those recommendations. Where are they? We have not seen them. Why would the Government not prioritise an issue such as that before the summer recess so that progress can be made on issues that really matter to people's day to day life? The Government's legislative programme commits it to introducing a Bill to establish a mortgage arrears court. Last year during the negotiations between the Independents and Fine Gael mortgage arrears experts were in and out of Government Buildings, spokespersons were out talking about what the Government was going to do to help people in mortgage arrears. It was going to do the devil and all. We have seen absolutely nothing. Where is the legislation to help families protect their homes and deal with mortgage arrears?

I congratulate the Minister of State, Deputy Stanton, on his reappointment. I know he is personally committed to dealing with gambling control. I have raised it with him before and I know he is considering various options. We have been kicking that issue around for a long time yet no legislation has been brought to the floor of the House. I do not know if the Minister of State is competing with other Ministers for Dáil time or is it a case that the legislation is not ready yet? We know this problem destroys lives and warrants the priority of this House but it is not getting attention.

A final example is the vulture funds. We hear time and again Government spokespersons talking about the need to protect families and small and medium enterprises, SMEs, from vulture funds yet there has been no legislation whatsoever. The Government's efforts to deal with them were half-baked. It introduced the Consumer Protection (Regulation of Credit Servicing) Act 2015 which requires the intermediary to be regulated but not the owner of the loan. No priority is being given to that. I can only conclude that a great deal of time is being afforded to this legislation because it is a personal vanity project for the Minister for Transport, Tourism and Sport, Deputy Ross. Unfortunately, Fine Gael is playing ball with him. Perhaps that is the price of power. That is the only conclusion I can reach on this issue. We know it has been a personal crusade of the Minister, Deputy Ross, for several decades. I do not think the system is as fundamentally broken as it is often said to be. Reforms are undoubtedly required. I support the legislation introduced last year by our justice spokesperson, Deputy O'Callaghan, which would result in more meaningful reforms in the area of judicial appointments.

While it runs counter to many of the Minister, Deputy Ross's public utterances, the Judiciary has served this country well and in the overwhelming majority of cases the appointments to the Bench by successive Governments have resulted in high calibre judges being appointed and they have by and large performed their duties with distinction. That should be said lest the impression be given that our justice system is so broken that it is utterly dysfunctional as a result of the quality of the judges appointed hitherto.

One issue which has dominated the debate on this legislation is what the Government characterises as the lay or non-lay majority. We would say the question is whether to have a judicial or non-judicial majority and Deputy O'Callaghan's Bill provides that neither judicial nor non-judicial members of the commission would be in the majority. The Government conflates the legal membership of the commission with judges to say that we seek a judge-based majority. That is not what is set out in the Bill and it is an important distinction.

The commission should rank the candidates. We respect the supremacy of the provision in the Constitution that it will remain a matter of course for the Government of the day to recommend the appointment of certain persons to the Bench and the President gives effect to that by making the formal appointment. We believe there should be an onus on the Government to consider recommendations from the commission in the form of a list of candidates in a certain order, based on the criteria set out in our legislation. If the Government seeks to deviate from that, or to appoint somebody, which is its right, who has not been put forward by the new judicial appointments commission it would have to give a reasoned opinion to back up that position. That is an important reform because it introduces a level of accountability and transparency that is not in the system. We ask the Government to consider that reform if the Bill passes Second Stage and makes its way to the Select Committee on Justice and Equality. We hope the Government will genuinely consider the amendments tabled by Deputy O'Callaghan on behalf of Fianna Fáil on that issue.

The people who know best whether somebody is qualified and has the appropriate skills to serve as a judge are judges themselves and others who have the relevant experience. Under our Bill there would be 12 members of the commission, including the Chief Justice, who is President of the Supreme Court, the Presidents of the Court of Appeal, the High Court, Circuit and District Courts. They are what we would regard as judicial members. There would be seven non-judicial members so it is not the case, contrary to what people have been seeking to portray, that we wanted a majority of the commission to be comprised of judges. That point has been lost during this debate. Of the seven non-judicial members there would be representatives of the Bar Council, the Incorporated Law Society, the Citizens Information Board, which has direct contact with citizens, Údarás um Ard-Oideachas, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission and the Free Legal Advice Centres, FLAC. Such a composition would strike the correct balance and result in the best possible recommendations being made.

We have also set out the criteria that would need to be met. Anyone considered appropriate for appointment to the Bench needs integrity, independence of mind, moral courage, a high level of intellectual skill, sound temperament, common sense, impartiality, objectivity, fairness, equanimity and composure. We also believe that persons recommended by the commission to Government for appointment should be interviewed by members of the commission and this is a reform we will bring forward on Committee Stage.

The Government can disregard whatever legislative based system is put in place because of the supremacy of the provision in the Constitution that it is ultimately the prerogative of the Government to recommend to the President the appointment of certain persons to the Bench.

Through legislative reform, we need to put in place the best safeguards possible. The package of measures we have brought forward strikes a better balance than the proposals set out in the Government's Bill. They do so by providing for the appropriate expertise on the commission, ensuring that the individuals who are going to be recommended to the Government be ranked, and providing that specific criteria be used by the commission in considering the suitability of individual candidates for appointment to the Bench. Those provisions are laid out in our legislation. Candidates would need to be interviewed and, should the Government decide not to proceed with the recommendation of the commission, it would need to provide a reasoned opinion in respect of that decision.

There is a need to comment on the reactions of and submissions made by those currently serving on the Bench. They should not be dismissed. They are the people who, day in, day out, ensure that our justice system functions and serves the needs of our citizens. When the Association of Judges in Ireland suggests that the proposals put forward by the Government are seriously flawed, we need to take it seriously. I agree that the rationale for a lay majority and a lay chairperson has not been explained. I have not seen any overarching rationale set out by the Government for such a provision.

The judges also expressed a concern, which we share, that no member of the District Court or Circuit Court is to be a member of the commission. Those courts together deal with the overwhelming majority of cases although, of course, the vast majority of citizens would hope to go through their entire lives and never have interaction with the courts. The Government, however, has seen fit to propose a membership structure for a judicial appointments commission that gives no expression to that and no recognition to the expertise of existing members of the Judiciary who are serving in those courts. That is a major omission from the Government's legislation which needs to be rectified.

The Chief Justice, Ms Justice Susan Denham as well as the presidents of the Court of Appeal, High Court, Circuit Court and the District Court have sent correspondence to the Taoiseach expressing their concern at the legislation proposed by the Government. They are quoted as having stated that the proposals, in their view, would have serious implications for the administration of justice. The Government seems quite prepared to brush all that aside. I have not seen any proper account taken of those remarks in any comments made by the Minister, Deputy Ross or by anyone serving in the current Government.

The points made by Elaine Byrne in the Sunday Business Post last weekend also need to be brought to the floor of the House. She drew attention to the Council of Europe Group of States Against Corruption, GRECO's fourth evaluation round report on Ireland, "Corruption prevention in respect of members of parliament, judges and prosecutors". This is a compliance report in respect of Ireland published in November 2014. In the last week or so, the council published an update on this report. The update sets out a series of recommendations which would improve the governance environment for members of parliament, judges and prosecutors. The most recent report, which assesses the 11 recommendations made in 2014, finds in essence that three recommendations have been dealt with by the Government. A number of the recommendations relate specifically to the Judiciary.

Although the Government has given absolute priority to legislation governing how judges are appointed, this has been at the expense of critically important issues highlighted in this report. For example, the issue of the judicial council is one which Deputy O'Callaghan has raised in this House a number of times with the Minister. GRECO recommended that, with due expedition, an independent statutory council be established for the Judiciary and that it be provided with adequate resources and funding for its organisation and operations. GRECO concludes that this recommendation has not been implemented. The Government provided the update that the Bill was being worked on and was on the way.

Back in 2014, GRECO recommended that a system for the selection, recruitment, promotion and transfers of judges be introduced. The Government's response is this Bill. It is interesting to note, however, that in GRECO's comment on the Bill, it says that the council encourages the authorities to pursue their reform efforts in close consultation with the Judiciary to the extent feasible and looks forward to being further informed on the results of these efforts. Given that the Judiciary has had to break ranks and speak out publicly through a press release and correspondence with the Taoiseach, I do not see how one could conclude that the Government has brought forward these reforms following close consultation with it. If such consultation has in fact taken place, its outcome has been a Government decision to completely disregard the views of the Judiciary in respect of the composition of the commission in particular.

GRECO also recommended that an appropriate structure be established, within the framework of which questions concerning constitutional safeguards of the Judiciary in connection with employment conditions are to be examined, again in close dialogue with judicial representatives, with a view to maintaining the high levels of judicial integrity and professional quality in the future. I acknowledge that is not an easy matter to deal with. GRECO has, however, stated that there has not been any implementation of this recommendation by the Government.

GRECO further recommended, very importantly, that a code of conduct for judges be formally established, including guidance and confidential counselling in respect of conflicts of interest and other integrity-related matters, gifts, recusal, third party contacts, the handling of confidential information, etc., and that such an instrument be connected to an accountability mechanism. Again, GRECO has concluded that this 2014 recommendation has not been implemented by the Government. It further recommended that dedicated induction and in-service training for judges be institutionalised and adequately resourced while respecting the independence of the Judiciary. Again, GRECO concludes that this recommendation has not been implemented. In the context of this Bill, the recommendations set out by the 2014 GRECO report have not been addressed by the Government. The provisions that are advancing just happen to be the subject matter of some attention by the Minister, Deputy Ross over the course of his political life and indeed in the course of his work as a Minister.

We will never know the truth as to whether any deal was done between the Taoiseach, Deputy Leo Varadkar and the Minister, Deputy Ross on the Sunday evening two weeks ago when it became known that the Government was seeking to press ahead the following morning with the formal appointment of Ms Justice Máire Whelan by the President. It does stretch the bounds of credibility and goes beyond my capacity to believe that all of this happens to be a coincidence. The Government is attaching enormous priority in its legislative programme to the passage of this Bill against that backdrop.

I welcome the fact that the Bill is not going to become law before the summer recess. The summer recess provides a window of opportunity for the Government side to reflect on what has been a very productive and informative debate. We have to reflect on the core objective. Ultimately, the citizens want a justice system that serves them well. They want to ensure that the judges sitting on the Bench have integrity and are genuinely independent and competent, and that they have the appropriate skills, expertise and qualifications to perform their function to the highest standards. It is our considered view within Fianna Fáil that the proposals we have put forward, were they to be adopted by the Government and used as a means to amend the Bill, would represent significant progress in the manner in which judges are appointed.

We will engage in detail throughout the full distance of the legislative process for this Bill, and we hope that those reforms that we are proposing will be taken on board by Government.

Deputy John Lahart

I welcome some friends from Ballyroan Men's Shed in Rathfarnham who are in the Public Gallery. I want to let them know that because I have welcomed them, their presence is etched on the Dáil record for years to come, and I hope they enjoy their visit to the national Parliament.

I want to join my colleagues in making some preliminary general points before moving on to detail. I welcome the opportunity to discuss the Bill. We know, as my colleague Deputy O'Callaghan said at the instigation of this debate last week, that the job of being a judge requires significant expertise and knowledge of various aspects of the law, including common law, statute law and the general legal system. It is the function of judges to apply that law. In Ireland we can agree that our Judiciary, by and large, has stood the test of time, and we can stand by our judicial system. It is true too that there have been very occasional horrific miscarriages of justice that have had to be remedied by the political system, and the political system has shown the flexibility to do that over time as well.

Previous speakers have at this stage well rehearsed what we on this side of the House see as the flaws contained in the Bill, and also the speed with which the Government has attempted to get it through the Dáil. The priorities of the Minister for Transport, Tourism and Sport are curious. Deputy Michael McGrath mentioned the Rugby World Cup 2023 Bill 2017 and other priorities in legislation that have been overlooked by the Government in its attempts to pass this Bill before the recess. The Rugby World Cup 2023 Bill 2017, which is a true priority of some urgency for this Government, for the country and for the Parliament, was relegated to second place behind this Judicial Appointments Bill in the last few weeks. It says much about the priorities of Deputy Ross as Minister with responsibility for sport and tourism and for the development of sport and tourism in the country that he chose to be so tardy with the World Cup legislation, which is a prerequisite for Ireland's bid to host the Rugby World Cup in 2023, and that he prioritised this non-urgent Judicial Appointments Bill in its place.

We also know about Deputy Ross's form on the issue of the Judiciary, and indeed Deputy Michael McGrath adverted to it in his speech earlier. In a recent article in the Sunday Business Post journalist Elaine Byrne put it well when she said that the Minister for Transport, Tourism and Sport has always been obsessed about judges being politically appointed. She goes on to suggest that this is nothing new, and that, "Oireachtas records from the 1980s show that he went as far as sponsoring a Seanad motion seeking to introduce legislation to prevent a judge from even getting a pension". In my view, coming from the type of constituency that I represent, a diverse population, people from diverse backgrounds and communities and people from diverse economic and social backgrounds, I believe the Minister's and the Government's proposals have actually missed a golden opportunity. Far from the perception of judges belonging to a golden circle or indeed coming from an elite group in society, it is worth noting what we can from the details available. I agree with Deputy Ross that we ought to know more about our judges, including their professional, education and client backgrounds and whether conflicts of interest exist. In terms of the details that are available to us, a cursory glance at the details available publicly regarding the educational backgrounds of our Supreme and High Court Judiciary is interesting to note. The details of all of the judges are not available, but their school backgrounds are interesting, because it might run contrary to what the public generally thinks. Our existing Supreme and High Court judges come from a variety of educational backgrounds including Alexandra College, St Mary’s Christian Brothers School, Belfast, Presentation Brothers College, Cork, Drimnagh Castle CBS, Dublin, Terenure College, Blackrock College, and O’Connells CBS, Dublin. We know from Deputy Ross's website that he was educated at St. Stephen's School, Dundrum, Rugby School, Trinity College Dublin and the University of Geneva. That contrasts with some of the educational backgrounds of some of the judges. I look forward to the day when a judge in our Supreme Court or High Court or lower courts comes from my alma mater, Coláiste Éanna in Ballyroan, or St. MacDara’s Community College, or any community college, whether it is in Killinarden, Ballrothery, Old Bawn or Firhouse.

The Minister's Judicial Appointments Bill has no proposals that provide encouragement for those aspirants who come from disadvantaged backgrounds and who, regardless of how bright they are, could never hope to afford the cost of studying at the Bar or devilling for a year or two. The Bill misses the opportunity to promote the idea that, whatever your background or wherever you come from, or regardless of the school you attended, you could aspire to become a High Court or Supreme Court judge and while rigorously applying the law, also enrich the profession by bringing a rich tapestry of backgrounds to the Bench. The Bill does nothing to promote this idea or foster the idea of making the Bar and the legal profession, and thereby the Bench, more accessible to all strands and genders in society.

Recently the Group of States Against Corruption, GRECO, reprimanded Ireland for not introducing in-service training for judges. The lack of a facility to give in-service training across a whole range of issues, including socio-economic background issues, to judges as they serve on the Bench is another missed opportunity in this Bill, as is the continued absence of an independent statutory council.

GRECO also rapped Ireland on the knuckles, which was again commented on by the same journalist in the Sunday Business Post, for failing to establish a code of conduct for judges. Deputy John McGuinness referred to this in his contribution last week. Politicians, down to the level of county councillors, are subject to the standards in public office legislation, which governs the receipt of gifts, third party contacts and so on. This is a live issue.

Turning to the Bill itself I note, as others have done, that the Bill proposes the retention of the Attorney General as both a member of the judicial appointments commission and as a member of the Cabinet that makes the final decision about the appointment of a judge. Colleagues have rightly pointed out that this is clearly a conflict of interest and runs counter to Deputy Ross’s stated objective of de-politicising the appointments process. The biggest flaw in the proposals is that, regardless of the names proposed by the newly proposed appointments commission, the Government may disregard the recommendations and decide simply to make their own appointments, as they can do currently. Fianna Fáil’s alternative would ensure that the successful nominees, as decided by the judicial appointments commission in our model, would be ranked in order of those best suited in the opinions of the judicial appointments commission. If the Government failed to apply the ranking system in the appointment of the judges it would be required to explain publicly its decision.

There are consequences to this Bill passing. The process moves away from an interview-based process to an initial paper-based process, in the sense that candidates submit their curricula vitae to a committee that is going to be dominated by non-judicial appointees, many of whom will have no familiarity with the law. It is curious that there is a provision in the Bill for the appointment of consultants or advisors in the event that the commission is unable to make a decision. What the Minister is proposing is taking current expertise and replacing it with non-judicial or lay expertise. If the members of the new commission lack the expertise to make an appointment they can appoint consultants to assist them in making the appointment.

In this regard section 14(7) states:

The Commission may as it considers necessary to assist it in the performance of its functions or the functions of any of its committees—

(a) enter into contracts or arrangements with any person, and

(b) with the consent of the Minister, appoint consultants or advisers.

Section 14(8) states:

Any contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (7) may, for the purpose of a relevant committee performing the function referred to in section 11(2), enable the person, consultant or adviser to—

(a) advise and assist the relevant committee in its consideration of applicants at a preliminary stage in the course of the selection procedures, and

(b) provide an evaluation or an assessment of an applicant’s suitability for appointment

We are replacing the simple appointment of judges who have the relevant skill and expertise with that of consultants, to fill the gap the lay members will not be in a position to fill.

I could make other points but I am sharing with Deputy Brendan Smith and I defer to him.

Deputy Brendan Smith

This Bill is all about internal Cabinet politics. It is about Fine Gael’s absolute and urgent need to placate the Minister, Deputy Ross, and to keep him sweet for the coming months. It is why we have been landed with this flawed and poorly constructed Judicial Appointments Commission Bill and it is why we are devoting, if not wasting, so much time on it.

The bitter reality is this Bill will not even achieve the objectives that its few champions, including those in Sinn Féin, claim for it. It will have long-term negative consequences for the public. As my colleague Deputy Jim O'Callaghan said, "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 over-complicate what should be a simple process of recommending the 20 or 30 people suitable for judicial appointment each year".

That point will resonate with many outside this Chamber and is one that has not received sufficient focus in much of the public commentary and debate. The Fine Gael-led Government, and this is now a Government Bill, no matter how much some Deputies on the far side wish to deny it, plans to put in place a costly and elaborate commission, along with a judicial appointments commission office and a judicial appointments commission director. Gone are the heady days of 2011 when Fine Gael candidates, including the Taoiseach, were not only telling us that they were going to abolish quangos, they even drew up a list of 145 quangos that they were set to throw on a bonfire. As we know, the bonfire did not burn for too long with what Fine Gael actually threw on it, perhaps because the previous Fianna Fáil Government had already done the job via the bord snip nua report. Whatever the reason, we now have the party that once stood on the platform of reducing the number of agencies and commissions because they are so costly and bureaucratic coming into the Dáil to propose creating an even more complex and costly apparatus to replace something that did the job for a minimal cost.

Approximately 20 people a year are nominated to judicial office. The existing Judicial Appointments Advisory Board did what was required of it, simply and inexpensively. Its board members met informally in an office. The board had a secretary. They examined the applications and they supplied names to Government. What this legislation proposes is to replace an uncomplicated process with a mini-empire staffed by individuals who will spend a lot of public money on trying to identify people suitable for appointment. As my colleague, Deputy Jim O’Callaghan, has stated here in this debate, what the Government is proposing is an astonishing waste of money and it is wholly unnecessary. It is creating an enormous and unnecessary quango to recommend individuals based on curricula vitae submitted for about 20 jobs a year.

Not only has Deputy O’Callaghan identified this problem with what the Government is proposing, he has identified and proposed a comprehensive alternative that is nowhere near as costly as the proposal before us today and which has the benefit of already having passed Second Stage. As Deputy O’Callaghan outlined in his Second Stage speech back in October 2016, the purpose of his Judicial Appointments Commission Bill 2016 was to try to improve the process by which members of the Judiciary are nominated and appointed. All of us here can surely agree that the abiding principle underpinning the nomination and appointment of judges must be that all recommendations and appointments are based on merit alone. Their appointment should be based solely on the fact that the Government believes they will make excellent judges who will be able to administer justice fairly and impartially and not because of any possible party political or ideological allegiance. This is a crucial principle and it is one that we can say that governments of varying political hues have adhered to.

This is not merely a matter of opinion, it is a demonstrable fact thanks to the work of three academics from the School of Law and Government in DCU. In their article, "The (not-so-surprising) non-partisanship of the Irish Supreme Court", they state: "Ireland is therefore a country in which we would expect partisan heritage to be reflected in judicial decisions. We analyse over 5,000 decisions of the Irish Supreme Court and despite rigorous testing we find no evidence of partisanship in decision-making". I could put this more succinctly, as Dr. O’Malley did in a tweet a few days ago, "Shane Ross TD thinks you can predict Supreme Court decisions on the basis of party affiliation. We tried. You can't".

As Fianna Fáil outlined in our Judicial Appointments Commission Bill 2016, there is a clear case to be made for both reforming the current system, which was established in 1995, and expanding upon it. Whereas the existing Judicial Appointments Advisory Board, JAAB, simply gives advice to the Government on judicial appointments and gives the names of seven people to the Government for each judicial vacancy, it does not rank the individuals in terms of who it believes is the best and does not identify the best candidates for appointment. What Deputy O’Callaghan’s Bill did, and what this piece of legislation before us fails to do, is to put in place a clear and workable scheme where the Commission can identify the best candidates for appointment to the Judiciary and then recommend, and rank in order of preference, three persons for appointment to each vacant judicial post. It also allowed the Commission to make recommendations for nomination to the important positions of Chief Justice and presidents of the courts. What Fianna Fáil proposed in our 2016 Bill was constitutionally sound as the power to nominate judges remained solely with the Government. The Government alone would still make the decision, either to accept any one of the three names submitted to it or to pick none of the three, with the proviso that it publish a reasoned decision for not having done so on the Minister’s website. There is no such provision in the Government’s Judicial Appointments Commission Bill 2017. This Bill would allow the judicial appointment controversy that happened just three weeks ago to happen again.

When Fianna Fáil’s 2016 Bill was debated here last October it received widespread praise and approval, including from Sinn Féin, but not for the first time in Sinn Féin, political expediency and point-scoring have trumped doing the right thing. The Government should have progressed the Fianna Fáil legislation but, as with so many other issues and crises sitting in the Government’s in-tray, it played petty partisan politics. It ignored the comprehensive reform package that was before it and had such widespread support and it did nothing. It did not just do nothing; it played petty old-school politics and scrambled around looking for whatever arcane or obscure pretence it could find to disregard what we had produced by declining to supply a money message. Consider the irony of that stroke for a moment. The Government decided to reject a Private Members’ Bill which would reform the system of appointing judges at a minimal cost, claiming that it involved a potential charge on the Exchequer, just so it could allow its own Bill, which will involve a considerably greater charge on the Exchequer, to advance. That money message stroke gives the game away.

My colleague, Deputy James Lawless, drew attention during last week’s debate to the number of references to judicial independence, respect for the Chief Justice and respect for the State in John M. Kelly’s seminal legal work, The Irish Constitution. Deputy Lawless specifically highlighted John Kelly’s warning that any attempt to interfere with the system of judicial appointments would be unconstitutional and reminded us that the late John Kelly had previously represented the Dublin South constituency, now partially represented by the Minister, Deputy Ross.

The skills and talents we require in our judges are considerable. We need judges who have a very good understanding of the law, but who also have integrity, independence, impartiality, objectivity, courtesy, composure and an ability to communicate, and we need lawyers to apply to become judges. Not every good lawyer will make a good judge, but one cannot be a good judge unless one is a good lawyer. To find those good lawyers and good judges we must have a system that can fairly, transparently and expertly identify the best candidates. That is not what the 2017 Government Bill offers us, but it is what the Judicial Appointments Commission Bill 2016 offered and we are showing remarkably poor judgment in not pursuing it.

That is the legislative measure the Government should have been putting thorough the Oireachtas. When I travel through my constituency of Cavan-Monaghan, what people talk to me about in relation to the Department of Justice and Equality is the need for additional Garda resources for divisions such as ours where Garda numbers have declined considerably during the years. I appeal to the Minister of State, as I did to the line Minister in the Department, to ensure additional resources are provided for areas such as Cavan and Monaghan where we have huge issues. People tell us we should give the Garda the resources it needs to deal with both urban and rural crime. The time being spent on this legislation in the Legislature is ridiculous.

Deputy Marc MacSharry

With no disrespect to the Minister of State, it is unfortunate that the line Minister responsible for justice issues has not taken the time to be here for the entirety of the debate. We are not talking about a simple amendment Bill with no major consequences and it behoves the Minister to take the time to be here to listen to all of the points being made.

Before getting into any of its detail, I note that the Bill is indicative of the tail wagging the dog in government. I would love if the Minister for Transport, Tourism and Sport, Deputy Shane Ross, was here because I do not like to speak about him when he is not in the House. However, I had the opportunity to launch many a Scud missile at him in the Seanad for many years. For 30 years in the Seanad he was the supreme leader and teacher when it came to hurling on the ditch. Having made the transition to the Cabinet, it seems that the other 14 members have caved in and happily allowed hurling on the ditch to be the fulcrum on which legislative change and improvements are to be brought forward.

When one considers the issues and problems facing the country, the haste with which this legislation is being brought forward following the appointment of the former Attorney General is not missed in any objective analysis. One cannot do a Stepaside Garda station on the Judiciary. One must consider the particular issue in the context of the closure of Garda stations in rural areas across the country and the increase in rural crime. In the Acting Chairman's constituency one often sees difficulties where Garda stations are closing and the incidence of rural crime has increased. As a rural and regionally based Deputy, it galls me to see Stepaside Garda station reopening at the demand of the supreme hurler when there are probably quite a number of Garda stations, prisons and everything else within a short distance of where the Minister lives.

I had the opportunity around Christmas some years ago and before Deputy Shane Ross was a Minister to be driving in traffic. I came across him in the middle of the road at a set of traffic lights wearing a Santa hat and holding a banner calling for the reopening of Stepaside Garda station. It is great to see such initiative and colour as the foundations on which serious legislative change is considered by the Government as a whole. Given that Fine Gael in government in 1995 set up the current arrangement, it was unexpected that Santa Claus would be the man to pull it asunder and dig up the pitch. As I said last week in another debate, it is certainly understandable that at times politicians will play the man and the ball, but why we would seek to dig up the pitch is beyond me. That is what the Minister is doing with the support of Fine Gael and other members of the Cabinet. In the circumstances, it is no surprise the Minister for Justice and Equality is seeking to duck out of the debate at this time.

I hope the Minister, Deputy Shane Ross, will not be playing the tune to which the rest of the Cabinet will dance in other matters. We heard examples from Deputy John Lahart of the consistency of the Minister's relentless and unfounded attack on the Judiciary which goes way back to an attempt to prevent the provision of a pension for a judge in the 1980s. Like breaching the Official Secrets Act on the first day of his appointment as a Minister, he could do with some training and expertise. One wonders whether he would have made the grade had there been a lay body to appoint Ministers. Certainly, he has always been a colourful contributor in putting forward good suggestions. However, it was often the case that the ones which grabbed the biggest headlines were not founded on best practice internationally or what was recommended here.

I turn to the issue of political lineage. Everyone, including the Judiciary, is in favour of reform of the appointments process for judges. We have our own proposals, into the detail of which many of my colleagues have gone and which would greatly improve matters. We gave them an airing in October 2016 and I am at a loss to know where they have been since. Certainly, the Government looked to stall or bury them. I am just guessing, but I imagine it did not envisage the antics of the Minister in bringing forward a Bill such as this to lacerate Fine Gael's own good proposals of 1995, albeit they needed reform. Everybody is looking for reform, including the Judiciary. I have often heard theories from the Minister and others about political lineage. This is a very small country of 5 million people. If we were to randomly pick 20 people on Grafton Street, we could trace a political lineage to each one, even if he or she was a floating voter from one election to another. Being from a small country, there is every likelihood he or she had a first cousin who was a councillor, a brother who canvassed for someone, or a mother or a father who was affiliated to a particular person purely on personal grounds who happened to go on to be a Minister. These grounds alone do not exclude people.

I used to live in the midlands, although I will not say where because I do not want to identify any of the people involved. I am reminded of a gentleman who regularly found himself on the wrong side of the law on foot of a substance and alcohol addiction. He never really had the means to secure legal aid, but some of the charitably minded local solicitors would see to his needs as he was brought before whichever court. One particular solicitor who used to look after him and do his best on his behalf became a judge after a number of years. While he did not sit anywhere near the midlands, he was back there as a visiting judge on one occasion. As he was mounting the steps of the courthouse, the particular gentleman was once again in trouble and approached him saying, "You have to help me today, I am in bad shape. I really need your assistance." The judge told him that he was very sorry but he could not speak to him because he was now the judge. "Better again" was the man's response.

Those stories are good and entertaining but in practice it does not happen. There is not a single example, whether the judge was appointed by Fine Gael, the Labour Party, Fianna Fáil or anybody else in government - perhaps the Minister, Deputy Ross, once he gets stuck into his new process of appointments - where a decision by a particular court can be associated with a level of political expediency. It is wrong. We all want to push towards a reform agenda to make it a little better but to do it in this way is absolutely wrong. It is to follow a very populist agenda for what is to my mind, with regard to the examples I have given, a somewhat manufactured reason and manufactured view that if somebody happens to be linked to political support of some kind or other, he or she will sway the judgment in favour of a particular perspective. I do not believe that is the case.

I am conscious of making the point about the separation of powers. I am concerned with broader reform. At times in the interpretation of the law there are parameters within which there is no wrong or right decision by a court. They are still legal decisions. At times, courts can focus a little too much on the practice. It is something we can be critical of in the House in terms of the practice rather than the legislation. Interpretation of the law, in particular in civil law, family law and issues such as that, tends to follow the practice and what went on in previous cases, which may not always be the correct outcome. There is drift when that happens because there is a reliance not on the literal interpretation of the law but on the practice and outcome of other cases. As a lay person, perhaps I am completely wrong on this point and perhaps I prove we should not have a lay person picking judges. It might be something that could be looked at on another day in terms of considering law reform in general. The idea of having lay people involved in picking judges is an honourable one. There could be lay representation but to have a lay chair and a lay majority on this group would be crazy in the extreme. It makes it wide open to manipulation by particular interest groups that could take a long-term view and try to infiltrate the membership of these organisations. The example may have been given of pro-choice or pro-life groups using it to see if a particular applicant will take a harder view on custodial sentences versus non-custodial sentence and things like that. I am certain it is not the correct way to go. Over the course of the debate, colleagues from all sides have given a wide variety of examples. An example is surgeons being chosen by lay people who do not have medical expertise or lay people choosing people for senior accountancy positions in the Central Bank or for positions in the Office of the Director of Public Prosecutions. There are a variety of things that can be done to give the people a better sense of ownership of the process but a lay majority is not the way to go.

In terms of the establishment of a quango, I am not sure this is the correct way. Part 5, section 32 provides that "[t]here shall be attached to the Commission an office to be known as the Judicial Appointments Commission Office...which shall assist the Commission in the performance of its functions" and that "[t]he Office shall be funded by moneys provided by the Minister with the consent of the Minister for Public Expenditure and Reform." How much is that? Later during Leaders' Questions, I hope to raise an issue of children suffering from arthritis getting appointments in hospitals. This month, they are getting letters saying the hospital hopes to facilitate an appointment in March 2018. The reason is the hospitals do not have the resources. When we go to the Minister on such an issue under the Health Act 2004, the Minister kicks it back to the HSE, which then kicks it back to us by saying there are competing priorities. Yet we are rushing in here on the back of the hurler on the ditch to set up another quango. How much money will be required for this from the Minister for Public Expenditure and Reform? The Bill provides that "[t]he terms and conditions of service of a member of staff of the Office shall be determined by the Commission with the consent of the Minister". What are the terms and conditions? How much money will it cost? It further provides that "[a] member of staff of the Office shall be a civil servant in the Civil Service of the State." Is that people transferring internally? Will people be appointed from elsewhere? Section 33 provides that "[t]he Commission shall, following a selection process held by the Public Appointments Service, appoint a person to be the director (in this Act referred to as the “Director”) of the Office." How will that be done? What qualifications will that person need? It states the person will have the job for five years from the date of his or her appointment and that a director whose term of office expires shall be eligible for reappointment. It provides that "[a] person who is reappointed by the Commission in accordance with subsection (3) shall not hold office for periods the aggregate of which exceeds 10 years." That is fair enough. What costs will be involved in this? Have we looked at that? It is galling when we see the difficulties we have in health and many other issues when we are rushing to set up something else.

I thank the Minister of State for being here. The criticism is not of him but of his colleague, the Minister, Deputy Ross, who certainly should have been here.

Deputy Barry Cowen

He is not too busy in the Department of Transport, Tourism and Sport.

Deputy Marc MacSharry

When he was sitting on the back benches of this House as an Independent and on the back benches of the Seanad for 30 years, he liked to have his voice heard. His voice was colourful, sometimes informative and sometimes of benefit but now that it has an impact on the legal establishment of the State and how it operates, we have to consider caution rather than political expediency when we decide what to do with it. Our proposals, which have been before the Minister since October 2016, have presumably been thrown into the room where such proposals are stored when put forward by the Opposition. They should be dug out and looked at in detail before Committee Stage. Deputy Michael McGrath said that hopefully the summer recess will bring some common sense and senior Fine Gael Ministers might consult some legal friends in their constituencies before Committee Stage in the new term. I hope the amendments being tabled by Deputy O'Callaghan, in line with our Bill, will be taken on board. What we are about to do here is not play the ball or play the man but dig up the pitch.

That is wrong and it has huge implications for law enforcement in our State and for the Judiciary.

Dáil Éireann debate - Wednesday, 5 Jul 2017

Judicial Appointments Commission Bill 2017: Second Stage (Resumed)

Dáil Éireann debate -
Wednesday, 5 Jul 2017