Brendan Howlin (Wexford, Labour) | Oireachtas source

I beg your pardon. It is four members selected by the Public Appointments Service. The ninth member is to be the Attorney General in a non-voting capacity, and I take it that is still the Minister's position.

I listened with care to the debate and argument in regard to the inclusion of the Attorney General. There is understandable concern that, if we like, the Attorney General gets two bites of the cherry or is at two phases of the selection process. He is in attendance, although not in a voting position, at the commission that will actually make the nomination and then he is the chief legal adviser and, in fact, from my experience of having sat in three different Cabinets, will have enormous weight in terms of judicial appointments at the Cabinet table itself. I think it is not the best solution that somebody who is at the level of recommendation is also at the level of decision-making. I would agree with the notion that the role of the Attorney General is to advise the Government. I would be much more comfortable with the decision simply that he or she would advise the Government on the recommended names that come to the Government from the commission.

I looked at the suggestion by the Irish Council for Civil Liberties and others, and repeated earlier by Deputy Martin Kenny, that there should be a ranking. I am not sure it is a good idea that there would be a ranking of names. I think some discretion should be left to the Government in terms of the degree of knowledge a Government will have of individuals, and I am not sure about a ranking system. As long as every name that comes before the Government is certified appropriate and fit to serve, then it is a matter for the Government to make that decision. I am not sure a ranking system would help that and, in fact, I think it would diminish the independence of the Government in making its own final decision.

By and large, I believe this commission structure proposal is a good and robust proposal which meets the tests of competency and transparency. The commission is to be assisted in its work by a judicial appointments office with a director and staffing. I say this as an aside because I am in an agreement that this sort of support is required, but I remember the pressure I was under and the great fanfare that was made by the Minister's party about the burning of the quangos. I understand we have created more non-governmental and support organisations in recent years than we had undone in the great burning of the quangos that was suggested. However, that is an aside.

My first question as to who makes the recommendation and selection is, I believe, well met in the proposals we have before us. Except for the caveat that I have entered in regard to the inclusion of the Attorney General, I think that commission proposal is not too large but is adequately large to be competent, functioning and representative, all of which are good things.

The specific requirement that the commission must address the objective that membership of the Judiciary should reflect the diversity of the whole Irish population is particularly welcome and especially important. It is a requirement, in a very changed population base, that that is reflected in all aspects of our Administration. I have to say that, before we start giving lectures to the Judiciary and everybody else, we have to look around here and see how reflective this House is of a very changed Ireland, and that is something to which we, as politicians, have to give some regard as well. I welcome that. I also welcome the requirement for judicial training and continuing professional development. These are very important and welcome developments.

A most reasonable point has been made again by the Irish Council for Civil Liberties that the legal professions too must address the diversity issue. In truth, it is very hard for a new commission to select qualified people to be appointed, or be recommended to be appointed, as judges if the profession from which those nominations come are so overwhelming drawn from one sphere or aspect of our population. Therefore, the legal professions too must seek to mirror the communities they serve, as we should here in this House too and in the other House.

That largely deals with the first question I pose and I have less than four minutes of speaking time to deal with the second question, which concerns the discretion that remains legally available to Cabinet to make the final decision. Again, very significant progress has been made in the right direction in this proposal that is before the House. Under these proposals, as I understand it, the Government can select from a shortlist of three coming from the commission in regard to a single vacancy, or a shortlist of five in the case of two vacancies, or seven in the case of three vacancies.

4 o’clock

I listened to the Minister's opening statement. She also said that a lesser number could be recommended in the event that either there were not enough qualified persons determined by the commission or, as the Minister said, "the commission may recommend fewer than three persons in some circumstances where less than three eligible persons apply...or where the commission cannot recommend three." I have concerns about that because at the end of the day the Government must have some discretion. If a commission is so minded to say it will make the decision to send on only one name and say that as far as it is concerned there is only one qualified person, there is no discretion which the Constitution says is the prerogative of the Government. I ask the Minister to reflect again on that.

It would be extraordinary for any position that there would not be three suitable people that could be recommended to Government. We need to have some discretion left with Government in exercising that because, ultimately, the Government is democratically accountable. The commission, no matter how august the personages on it will be, will not be accountable or questionable with regard to its decision-making but the Minister will be, both in this House and to the electorate. I would give that minimum of discretion legally to the Government.

The unfettered right of appointment of judges remains with the Government although Article 35 says:

The judges of the Supreme Court, the High Court and all other Courts established in pursuance of Article 34 shall be appointed by the President.

Article 13.9 says that:

The powers and functions conferred on the President...shall be exercisable and performable by him only on the advice of the Government.

The Constitution gives an exclusive right to the Government to make these decisions. Up to 1995, that was a complete carte blanche to make those decisions. By and large, Governments did not make outrageous decisions up to now.

However, we need the sort of reform that is there now. We need to ensure that the powers and functions that we have are exercised in light of different times and that we have a mechanism that is transparent and robust. The proposals put before us meet those criteria. I will look to make one or two amendments on Committee Stage but this is a good day's work and we need to get this Bill enacted. It is timely and appropriate to make these very fundamental and significant changes to the appointment system for our judges.

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