Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I want to address the committee on four areas. My opening statement will not be as lengthy as that made by the Tánaiste but I do want to give the committee an overview of the four areas I would like to speak to it about, following which I will be happy to take questions.

First, I will speak about how the system currently operates; second, why the system needs to be changed; third, my Bill; and, fourth, the Government's scheme of its Bill. Before I commence my remarks on the four issues to be discussed, I would like to put on record my disappointment that the committee does not have the Government Bill before it. If we are to engage in full pre-legislative scrutiny of the Bill, it would be much more helpful if we had a copy of the Bill as drafted as opposed to the scheme of the Bill. I remind members that my Bill has passed Second Stage in the Dáil. As such, I do not propose to spend an inordinate amount of time repeating here what I said in the Dáil.

How we, as an Oireachtas, determine how judges should be selected is an extremely important matter. Under the Constitution, the Government nominates judges and they are then appointed by the President. However, we should not lose sight of the fact that under our Constitution justice is administered by judges. Justice is of major importance to the public. We hear that every day. As politicians we hear it too. We often hear people say that they were deprived of justice, that they want access to justice or that they believe they have not been treated fairly by the State. We need to bear in mind all the time that judges play a central and fundamental role in determining and delivering justice for Irish citizens. The position of a judge is no ordinary job; it is vitally important and we need to do our best to ensure that the best people are appointed to the position.

In regard to how the system currently operates, I am conscious that as a lawyer I will have a greater knowledge than other committee members of how the system operates. 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 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. Obviously, 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 the Tánaiste's proposed scheme and my Bill, the Government can choose whoever it wants. It does not have to select a name from those provided by the Judicial Appointments Advisory Board. I 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. If the Government chooses to appoint a person not recommended by the Judicial Appointments Advisory Board, it must state in Iris Oifigiúilthat, for example, Caoimhghín Ó Caoláin has been appointed as a judge of the Supreme Court but his name was not put forward to it by the Judicial Appointments Advisory Board. That is the only downside if that arises. Usually if, say, Caoimhghín Ó Caoláin was nominated and appointed, it will state in Iris Oifigiúilthat he came through the Judicial Appointments Advisory Board system. The Government then nominates an individual and he or she is appointed by the President.

The second issue is why the system needs to be changed, 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 them, 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. People who are interested in reading State papers will know that over Christmas and the New Year the State papers from 30 years ago which were published 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. If RTE was appointing a new director general, it would follow the process of setting out the selection criteria and a selection body would then identify an individual who would be recommended to Cabinet. The Cabinet could disagree with it but, in general, it would accept that recommendation.

It is true - it is important we live in the real world - 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. I have never been in Cabinet but I suspect much canvassing goes on for the purposes of appointment of people to the Bench. I suspect there are people who have been appointed because of political connections. Many people who are appointed because of political connections turn out to be excellent judges. I have no objection to that. We should not have a system whereby because a person is involved in politics, he or she should be excluded from subsequent nomination to judicial office. What we do not know, and I am sure this happens, is if there are good people who applied to be judges and because they did 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, which is appropriate, the Government has the final say. Regardless of what system is in place or how it operates, the Government can disregard the list of candidates provided by the Judicial Appointments Advisory Board 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 the best people - there may be people whom we do not know and who do not have connections - have an opportunity to be considered and appointed.

That brings me to my legislation, which was debated in the Dáil on Second Stage. I will not bore the committee by taking it through the Bill section by section, but I will make a number of points on it. My Bill establishes a judicial appointments commission to recommend to the Government the names of individuals who it believes would be the most suitable, based on merit, to be judges. For each position, it will recommend three people. The Tánaiste's scheme has the same provision. Under my scheme, however, the three will be ranked as Nos. 1, 2 and 3. In no way does that 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 a body that has expertise that it believes that these are the three best people in a certain order.

Another way that my scheme is relevant concerns the membership of the commission. Like everything in Ireland, memberships of commissions seem to get a great deal of political interest and media comment for some reason. What is the best body of people who would be qualified to recommend those - if we are to be frank about this, it is only lawyers who can be judges - barristers and solicitors whom they believe would make the best judges? The people who know are judges themselves and others who have experience. Under my scheme, there are 12 members on the commission. These include the Chief Justice, who is President of the Supreme Court, and the presidents of the Court of Appeal, the High Court, the Circuit Court and the District Court. They would be "judicial members".

Interestingly, the Tánaiste has adopted hook, line and sinker the language put into her mind by the Minister for Transport, Tourism and Sport, Deputy Ross, which is all about lay people and non-lay people. It is offensive to judges that non-lay people, under the Government's scheme, are described as being judges and lawyers. Judges are not practising lawyers. They were lawyers formerly. It is wrong and misleading of the Minister, Deputy Ross, to give the impression that judges and lawyers should be regarded as belonging to the same group. We should get away from that impression. We are discussing judges, so we should refer to judicial members and non-judicial members.

Under my scheme of 12 members, there will be five judicial members and seven non-judicial members. As to those seven, there will be representatives from the Bar Council, the Law Society, the Citizens Information Board, which has direct contact with the citizens of this country and knows their needs, an tÚdaras um Ard-Oideachas, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission and the Free Legal Advice Centres, a body that provides exceptional advice to people in Ireland who are of limited means. This is the membership of my commission. I picked it not because I am a lawyer and want to have my mates on it or it is a cabal, as the Minister would present it. I picked it because these members are persons who have the best interests of the Irish people at heart when it comes to identifying individuals who would make good judges. It is farcical of the Government to suggest that judges, such as presidents of the courts, will want to select for recommendation people who are their friends. Let there be no doubt about it - that is the current in this provision. It is not even an undercurrent. It is a wave that is being presented by the Government to the effect that these people cannot be trusted because they will just want to pick all of their mates for positions.

I view these individuals as I would a school principal. If the Chairman was a principal and was asked to select a new teacher, he would want to ensure that the teacher was fair and a hard worker. Similarly, the same would apply to the presidents of the courts while on this recommending body. They will want to ensure that the people who are chosen are effective and useful.

I will examine the question of the other nominating bodies in more detail when we compare that suggestion to the system that the Tánaiste has proposed. Under her system, the Public Appointments Service would select the six lay members on the Government's proposed 11-member commission. That will give rise to difficulty, but I will reserve comment until I reach the Tánaiste's Bill.

A further issue of some conflict concerns the chairmanship of the commission. In many respects, this is not a major issue. Under the Government's scheme, the Chief Justice will be a member. I will give the Tánaiste time to answer my next question. Can she name any committee on which the Taoiseach sits of which he is not chairman? She can revert to me in due course. I suspect that she will not be able to identify one because any individual putting together a committee that included the Taoiseach would know that putting him on it without having him chair it would be disrespectful, not to Deputy Enda Kenny, but to the office of Taoiseach. Similarly, requiring the Chief Justice to be on a committee in respect of judicial appointments when she is not the chairperson is disrespectful to the office of Chief Justice. I regret to say it, but this is consistent with the Government's attitude of disrespect towards the Judiciary. There is no policy reason for the Chief Justice not to chair this body. Undoubtedly, the Tánaiste will tell me that it is a commitment in the programme for Government, which means that this was agreed with the Minister, Deputy Ross. We all know that Fine Gael agreed to this at a time when it would have agreed to draining the Shannon to get into power.

I will address a further important part of my Bill that differs from the Tánaiste's. In mine, I set out specific criteria if people are to be appointed as judges. It is important that the public be apprised of what qualities one needs to be appointed. This provision is not found in the Tánaiste's scheme, but it can be in my section 15. It is important that we set out in our legislation matters that may seem obvious. One needs integrity, independence of mind, moral courage, a high level of intellectual skill, sound temperament, common sense, impartiality, objectivity, fairness, equanimity and composure. I have set these out. The greatest judge in the world will not have all of them, but they are what we should aspire to seeing in those whom we appoint to the Judiciary. It is useful for the public to know what is required.

An undertaking is given in both Bills to engage in training. However, the Tánaiste's scheme has no mandatory requirement for there to be interviews. Under my scheme, persons who are to be recommended must be interviewed by members of the commission.

The main substantive difference between the two proposals is that nothing really changes under the Government's. The new recommending body will nominate three people, whose names will go to the Cabinet. The Cabinet will then operate in the same way that it does now. It must consider the three names. If it does not like them, it can say that the person it selects was not recommended by the commission. Under my scheme, there is a greater hurdle for the Government to overcome. The Government gets the names of Nos. 1, 2 and 3. If it does not select or recommend for appointment any one of those three, it must give a reasoned decision for that.

That is worthwhile and it brings greater transparency to this whole process. One area where I agree, and where I have changed my mind since the Second Stage of my Bill, is on the Minister's proposal that District Court judges should be eligible for appointment to the High Court. Having looked at it, that is fair. If one is a lawyer of 20 years standing, one can be made a District Court judge, but if one becomes a District Court judge after one's 20 years of standing one becomes ineligible for appointment to the High Court. It would be unfair for that situation to apply. Under my scheme, we will increase the number of years that people have to have been practising before they become judges. They should have 15 years in practice before they can be appointed to the superior courts. That is the proposal I have in respect of the scheme. I do not think it is perfect. It is a proposal I have put forward and I am happy to accept changes to it. I welcome the fact Deputy Daly was the only person who proposed amendments to the Bill when we came so close to our committee hearing many months ago. When we get to it in the future, I will consider any other amendments.

That brings me on to the final part of my submission, and I am sorry for taking up the time of the committee but I will finish after this. It is in respect of the scheme put forward by the Government. I will make some points on it, and I have made some of them already. In head 2 there is a categorisation of laypersons, which merges people who hold judicial office and people who were or are practising lawyers. It is inappropriate to merge them together. It is simply playing to agenda of the Minister, Deputy Ross. Why is it that under the Government's scheme former judges are precluded from being on this recommending body? If one is trying to identify somebody who would have a good idea of what it takes to be a judge, one would have thought a former judge would be suitable to fulfil that role. Under the Minister's scheme it is not permitted.

I want to jump forward to head 7 of the scheme, which is the membership of the judicial appointments commission. Another difference between the Minister's scheme and my scheme is that I want to have the recommending body completely separated from the political process, so that there would not be people who were part of the political process on the recommending body. For that reason I thought it was inappropriate to have the Attorney General on the recommending body. Under the Government scheme the Attorney General is on the recommending body. Names will come into the judicial appointments commission, the Attorney General will be part of that commission when the names are being considered and those three names will then be put forward to Cabinet where the Attorney General will also sit. That does not achieve the objective of separating the political process from the initial recommending process. The political process is ultimately going to decide who is appointed. The recommending process should be protected. There is replication and infiltration between the two bodies if the Attorney General is on both.

Under the Minister's scheme there are to be 11 persons on the commission. Only two of them are to be judges. It is wholly inappropriate that only two out of 11 are judges. The Chief Justice is on it, as one of the ordinary members of the commission, and then there is either the President of the Court of Appeal or the President of the High Court. It may be the case that the President of the Court of Appeal and the President of the High Court preside over courts which deal with more serious issues, but most judges are appointed to the District Court. The District Court is the court that has the most direct involvement with members of the public and the Circuit Court is just above that. It is farcical that a body such as this would not have the President of the District Court and the President of the Circuit Court on it. These are the men and women who run the courts and who have most interaction with the public. They know what a good judge is. All they want is a judge who is going to work hard and be fair. To deliberately exclude them from this displays a complete lack of awareness of the requirements of a new system.

Under the Minister's scheme, there is the Chief Justice and one other judge, either the President of the Court of Appeal or the President of the High Court, will be on the commission and they will have to fight it out among themselves as to which one of them gets on it. The Government does not even have the strength to just pick one of them, it leaves it to the judges to decide.

Then we have five lay members, and this is where I have a concern. It is easy to be criticised as a lawyer for giving out about lay members. I have no objection to lay members fulfilling the important roles that they do - for instance, in a disciplinary body. If the legal profession is being regulated and someone is being disciplined it is appropriate and essential that the body that is disciplining that lawyer should have a majority of lay members. This is because there is a fear that if there were only non-lay members or lawyers that they would be too favourable to the lawyer involved. That is a perfect occasion when lay members are required. No explanation has been provided for the lay members here.

Let me just tell the committee exactly what my concern is. The type of lay people who will apply for a position on this judicial appointments commission will be, to a large extent, people who have their own political agenda. We will have people who are pro-life and pro-choice applying, because they will want to ensure that judges who are appointed represent their political agenda. We will have representatives of people who want to be very strong on crime and lock people up and people who want to be very soft on prisoners and open the gates. We are just giving an opportunity to individuals who have their own political agendas to bring them forward.

A better way to approach it is to do as I have done and have a body comprising organisations such as Free Legal Advice Centres, FLAC, and the Irish Human Rights and Equality Commission, two highly respected bodies, and a couple of others, which will identify suitable individuals for recommendation. Another Minister criticised those bodies but that is the mechanism that is used on the Legal Services Regulatory Authority which the Minister steered very effectively through the Dáil. If it is good enough for the Legal Services Regulatory Authority why is it not good enough for this?

On these lay members and selection, if we were choosing a cardiologist for St. Vincent's Hospital, I would hate to think that someone like me would be on the panel suggesting who that cardiologist should be. I have not a clue what is required. Similarly, if there was a vacancy for the editor of The Irish Times, there would be a need for people on the selection body who are experts in journalism. On the cardiology interview panel someone who is an expert in cardiology is needed. These lay people sound great and it fulfils the agenda of the Minister, Deputy Ross, that we are going to have a majority of lay members, but I do not know who they are going to be. There should be non-judges on it and they should be selected by bodies such as the Irish Human Rights and Equality Commission, FLAC and the Competition and Consumer Protection Commission. We do not know what we will get or who will get on it when we open this to the Public Appointments Service.

I raise one other issue of concern. My concern developed yesterday when I read the scheme again and it has increased this morning. The Minister said that this new commission will have funding in the region of €500,000 a year. This was supposed to be the Government that would cut quangos. The last thing we want is to create this new entity, the judicial appointments commission office, which will have a glossy annual report and its own PR firm. We do not need that. We need individuals who are committed to public service who are going to sit on it and make their recommendations. I do not know how many judges are appointed each year but I suspect it is no more than 20. What is the point in giving €500,000 to a body that is asked to recommend three individuals for each vacancy on the Bench? It seems that we are once again are creating mini-empires. What really worried me is that head 8(3) allows the commission to engage consultants and advisers.

That is replicated in head 19 which discusses the director of the office of the judicial appointments commission and the staff of the commission. This has been done to date by the Judicial Appointments Advisory Board, which only meets when there are vacancies. What is this body going to do when there are no judicial vacancies? We should be wary about setting up another quango.

Head 22 is very limited in what it sets out. It simply says in order to be appointed one must be suitable on grounds of character and temperament. We know what that means in an Irish context. Provided one is not barking mad one fits within the categorisation.

I welcome the fact that under head 23, persons who are qualified for appointment to the superior courts will be former judges from the EU and former judges of the European Court of Human Rights. It is important that this is provided for in the legislation. This area needed to be looked at. There was always a precedent and convention that judges who served in those courts would be reappointed on their return. The previous Government did away with that convention.

It is interesting to note that head 35 allows the commission to recommend a member of the commission. That is interesting. It is permissible provided all members are available for recommendation. Head 36 is the crux of the Bill. This very expensive process will be set up and at the end of it, the only sanction on the Government is that if it does not select one of the recommended people, the notice must be published in Iris Oifigiúil. That is the sum total of it. In fairness to the Tánaiste, I do not think she does not agree with it. I think it has been presented to her by the Minister for Transport, Tourism and Sport. It was agreed in the programme for Government and it is being pushed forward because it is in the programme for Government. I do not think the Tánaiste believes in it and that it will damage the appointment and selection of judges in this country. We would be better off leaving it as it is. This is all I have to say.