Jonathan O'Brien (Cork North Central, Sinn Fein) | Oireachtas source

I will be brief. When Deputy O'Callaghan's Bill was going through Second Stage, we supported it because we believed there needed to be changes to how judges are appointed. Having said that, we did raise some issues about the Bill during our contribution. We said that we wanted to see it go to through to Committee Stage where we could address some of those issues. When we discussed Deputy O'Callaghan's Bill, we did not have the general scheme of the Government's Bill. We now have that and must take it into consideration as well. We would be very favourable towards many things within the general scheme - more favourable towards them than towards what is contained in Deputy O'Callaghan's Bill. We supported his Bill but we did not have the general scheme then.

Funding was one of the issues touched upon by Deputy O'Callaghan. It is my understanding that funding will be used in a number of ways. One of the areas the Government has looked at is that the commission would appoint a committee which would be responsible for codes of practice. It talks about looking at international best practice, drawing up criteria and those codes of practice and being able to get information and research. Obviously, there is a cost associated with that. I cannot put a figure on it but I certainly would not be opposed to some funding going towards research and looking at other jurisdictions to see what best practice is in terms of selecting judges is.

Another area touched upon by the Government is looking at how we can diversify the people selected as judges. Page nine of the general scheme talks about how other jurisdictions have developed comprehensive merit criteria to address such issues as ability, communications, work ethic, decision-making capacity and integrity. It goes on to talk about awareness of the diversity of communities and how the commission will be tasked with developing appropriate codes of practice in respect of this matter. This is an important element. It recognises that we are a diverse society that is becoming multicultural. The selection of judges needs to reflect that so I completely agree with that in terms of guiding principles.

On the question of whether it should be a lay or non-lay majority or as Deputy O'Callaghan would describe it, a judicial or non-judicial majority, one of the reasons we are having this debate is because there is a perception out there that judges are selected not on merit but because of who they know. I know Deputy O'Callaghan referenced that in his contribution. It may be a very unfair perception but it exists and is a reality that we need to deal with. I do not think Deputy O'Callaghan's Bill would address that perception because what he is proposing is that we would have a judicial majority and would not necessarily have a lay chairperson. We can go into the ins and outs and rights and wrongs of it but when it comes down to perception, it is important that we would have a lay majority and a lay chairperson for that purpose. Deputy O'Callaghan spoke about people wanting to see justice being delivered and how it must be seen to be done. The current situation whereby a judge is appointed is completely unfair. That judge could be appointed for all the right reasons but if they have political connections, from the moment they are appointed, there is almost a shadow cast on them. People question whether they were appointed because that they have these political connections. It is unfair on the individual and unfair on the system so we agree with what the Minister proposes.

In terms of the selection of the lay personnel on it, we would certainly lean towards the criteria laid out by Deputy O'Callaghan. I do not see any disadvantage in having nominating bodies which could recommend people for that position. However, there is a lot of merit in what the Minister is saying, namely, that the Public Appointments Service would select them. I do not know whether a happy medium between both of them exists. Could we have a situation whereby bodies could recommend people but, ultimately, it would be the Public Appointments Service that would actually select them? If we can find that happy medium, we could have the best of both proposals.

The issue I really want to focus on is the constitutional requirement relating to the Government. I am not a constitutional lawyer - far from it - but I have spoken to some constitutional lawyers. There seems to be a difference of opinion on this. It is my understanding that the only requirement is that the Government would nominate somebody to the post of president and the president either then signs off on that or not. The Tánaiste might be able to clarify an issue I have relating to the constitutional requirement that it would remain within the power of the Cabinet to make that nomination. The commission puts forward three names.

I do not agree with ranking them. That would be the wrong way to go. I have no issue with the recommendations coming forward. They are all coming forward based on merit and on candidates' expertise, experience, integrity and the other criteria that will be laid out. In terms of satisfying the constitutional requirement, not having them ranked would be more desirable. It is my understanding that once the three names are put forward to the Government, that satisfies the constitutional requirement and the Government can then select one person for nomination.

The debate must focus on one of the difficulties I have with both the Bill and the general scheme. As I understand it, although I am not 100% sure with regard to Deputy Jim O'Callaghan's Bill, both provide that the Government does not have to select any of the candidates who have been proposed, which defeats the whole purpose of the commission. The commission is being established to determine suitability vis-à-visthe criteria laid out and to recommend people for selection as judges. The constitutional requirement is actually met when the commission puts forward the names of suitable candidates and there should be an obligation on the Government to select one of the recommended individuals. I do not know how that goes against the constitutional requirement because it is my understanding that the Constitution holds that the Government has the right to select someone for nomination. Once the names go forward, the Government should be obliged to select one. I ask for clarification on that point.

If we had to vote tomorrow for the general scheme from the Government or the Bill, we would probably come down on the side of the general scheme. The provisions of the general scheme make the process more open and transparent and would address some of the concerns around judicial appointments. Sinn Féin fully agrees that the commission should have a lay majority and chairperson. We also fully support the appointment of such lay persons by the Public Appointments Service, PAS. As I said, we are not opposed to the funding idea either. There is merit in both the general scheme and the Bill but if we are to address the commonly held perception that judges are not selected on merit and if we want to put in place a new system for selecting judges, then we would be more favourably disposed to what is being proposed by the Government in the general scheme.