Shane Ross (Dublin South, Independent) | Oireachtas source

Tairgim: "Go léifear an Bille an Dara hUair anois."

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

This Bill comes before the House at a time when confidence in the justice system of this country is ebbing by the hour. There are question marks over the Department of Justice and Equality, over politicians administering justice and over the gardaí. This is the first of two Bills I intend to introduce in this House to establish the independence of the gardaí and the Judiciary from the Government. The Department of Justice and Equality is the most vulnerable to political interference and patronage. Since the foundation of this State the appointment of judges has, unfortunately, been regarded as part of the spoils of war; judicial appointments have been dished out as rewards to those who have been loyal to political parties at times of electoral contest. That is indisputable.

The effect is twofold: not all appointments are made on merit, and some people who should be appointed are excluded because of their political colour. I see the arguments made on both sides, and those opposing this Bill, if there are any, will agree today that we should not exclude people because of their political beliefs or colour, and they will say this Bill attempts to do that. It is not an attempt to do that. It is an attempt to appoint people independently, and exclusively on merit, if that is possible. It is certainly intended to exclude the obvious political interference and preference which has gone on in all parties in the appointment of judges to all courts. This does not apply only to judges but to gardaí as well. I asked the Garda Síochána yesterday to find out how many top gardaí are politically appointed and I was very surprised to find that the figure is 200. That is one of the symptoms of the crisis we face. Political appointments should be outlawed from the appointment of top gardaí. It is equally important, before we have accidents or something awful happens, that judges are not politically appointed. All judges are politically appointed; all judges are appointed by the Government. This is not true in the case of the Garda but it is true of the judges of all courts.

I do not want in any way to single out any particular party or appointment. Fianna Fáil was absolutely ruthless, when it was in office for many years, in appointing its own loyal lawyers to all courts, but this Government has been playing catch-up very effectively. It is very easy for anyone in this House to examine the judicial appointments made by this Government and to identify people of a political colour, closeness to various Ministers or other politicians who have power in this House or influence elsewhere. That system has to end. We are lucky that we have not as yet had a very obvious accident in which a judge has made what is quite obviously a political judgment. That is true. I cannot point to one. It would be very difficult to prove that a judge had made a decision because he or she was a member of a political party and that affected the verdict. It cannot be proved because it is in the mind. It is obviously a possibility and a system which is vulnerable to that criticism. It is also wrong that those who are in political parties should be rewarded with very lucrative and, in certain situations, soft jobs.

The present system was established in 1995 when the Courts and Court Officers Act was introduced following a political spat between Fianna Fáil and the Labour Party when they were in government together over the appointment of the President of the High Court. Until then, appointments were blatantly political as a result of lobbying and the preferences of Ministers. There was such a hell of a row that the Judicial Appointments Advisory Board, JAAB, was set up to give the impression that judicial appointments were now being made on merit, but there was a big problem with that board. It was a fig leaf. All of the appointments bar two on that board were political: three were directly made by the Minister, and others were ex officio, such as the Attorney General and the Presidents of the High Court, Supreme Court, District Court and Circuit Court, all of whom are political appointees. JAAB - it was known as "JAABs for the boys" in the Four Courts - operated an extraordinary system and still does.

When a vacancy arises, applications are made to the JAAB, as advertised. Following that, JAAB makes a recommendation, which goes to the Minister. JAAB does not hold any interviews. In that period, although it has power to hold interviews, it does not hold them. For each vacancy it recommends normally seven particular candidates, whose names then go to the Minister. The Minister and the Government choose from that seven and send the name on to the President, who then appoints the judge. It is not just that there are seven candidates to give the Minister a wide choice - they can always find a loyalist to put into power - the problem is worse than that. The Minister does not have to take a blind bit of notice of JAAB if he does not want to do so. He, as it was at the time it was set up by a Fine Gael-led Government, or she can simply appoint somebody else. However, it is available as a type of fig leaf to give the impression that there is a weeding out and selection process. It is a farce, and it is acknowledged that it is a farce.

The current system is not even approved of by the Judiciary. It is important to point out that judges, the members of the Judiciary, are deeply embarrassed by the fact that so many of their own number are appointed partly because of their political allegiance. I will quote two lines from a submission made by the judges in a public consultation recently where they stated:

As a matter of principle, political allegiance should have no bearing on appointments to judicial office. Early acceptance of this principle is essential to a transformation of the appointments process.

In other words, they are saying the appointment of their colleagues should be taken out of political patronage because it is discrediting those who are particularly adept and rightly respected for the jobs they are doing. That is a powerful testimony to what I am stating.

My Bill hopes to address this in a radical but extremely effective way and, unfortunately, it is necessary to address it in a constitutional way because some of us on the Independent benches do not trust either political parties to implement a Bill which guarantees the independence of the Judiciary. I say that as one who has watched for a very long time what are blatant abuses in some cases, particularly in terms of appointments to the District Court. Most party politicians will tell one that they are lobbied extensively by local solicitors looking for appointments to the District Court, and quite often it is an effective form of lobbying. It is extraordinary how sought after these jobs are, and to give the Minister of State an example, in terms of applications to the Judicial Appointments Advisory Board, there are usually over 100 applications for each place in the District Court. That must be some job. That is the reason there is such a wide and effective lobby for these positions. They are sought after, politically appointed and are lobbied for still, and those names go to JAAB and then to the Minister.

I propose in my Bill that judges should be introduced on merit and should guarantee their independence. I will outline the two layers of selection that are suggested and constitutionally imposed in this Bill. JAAB should be abolished and replaced by a judicial appointments council or board, whichever the Minister wants to call it, which is drawn from a broad spectrum of society. There would be no room in that judicial appointments council for any judges because the Bar Council and the entire legal profession is a home for insiders. There would be no room for any judges or any ex officiolegal representatives from the Law Society of Ireland or the Bar Council but rather candidates would be drawn from a broad spectrum of society. That could include legal academics who would have a knowledge of the law and of the people. It could include ordinary citizens and community groups, but it would not allow insiders to push their nominees onto the bench.

The second layer would be an Oireachtas committee which would receive the names of those who had applied to be judges, debate those names and then send them to the President. The Government would be bypassed completely. The Oireachtas would have a role in this but the security in this particular committee is that there would be an Opposition majority on that Oireachtas committee. There would be no way the Government could impose its way as it did in the past, and the Opposition would have a veto on that. That is the most important part of this Bill. The rest of the detail could be provided by law but if there was an Opposition majority, we would no longer have a system where political patronage would rule. People would be nominated by citizens and a judicial council. They would then go before an Oireachtas committee which would hold interviews, unlike JAAB, and would then nominate individuals and send the names to the President. Those interviews could be held in public to allow the public scrutinise them because in regard to judges, and we have noticed it in this House in recent days, it is almost taboo-----

See this speech in context