Mick Wallace (Wexford, Independent) | Oireachtas source

I move amendment No. 134:

In page 30, after line 38, to insert the following:“(3) The Government shall nominate for appointment one of the three persons recommended by the relevant committee in accordance with subsection (2).”.

All these amendments are linked and deal with the same principle. I am seeking to insert, after line 38, that the Government shall nominate for appointment one of the three persons recommended by the relevant committee in accordance with subsection (2). The Bill, as drafted by the Government, is tinkering around the edges of stage one of a three-part process to judicial appointments. At the moment, names can be given to the Government but it has the power to ignore them all and pick someone else altogether. I know it has not done that but it can do so, and we should address it in legislation while we have the opportunity. No change at all is proposed in this Bill to stage two when the Government nominates a judge to the President. The Minister, Deputy Ross, had a provision on this in his Bill when he was in opposition but changed his mind when he was appointed to Government.

The degree to which judicial appointments in the State are conducted independently was described as "globally unsatisfactory" by the Council of Europe's Group of States against Corruption. In the 2017 EU justice score board published by the European Commission on 10 April 2017, the Commission indicated that, according to the information provided by the Irish authorities, "the government may appoint a person who is not on the list sent by the Judicial Appointments Advisory Board but in practice does not do so". Figure 57 of the report shows that Ireland has the second highest amount of Government freedom to appoint judges in the EU. Where candidates are proposed by an independent body, the score depended on "whether the executive can reject a candidate judge at all, whether it can choose only among the proposed candidates, or whether it can choose and appoint any other candidate, even if she or he is not proposed by the competent authority". It was noted that "[a]n important safeguard in case of non-appointment is the obligation to provide reasons and the possibility of a judicial review".

The relentless focus on what is really minimal change to stage one and the populous approach by the Government is over-hyping the law versus lay distinction in a deliberate tactic to distract from the real issue of Government control and political allegiance in judicial appointments, as identified by the Irish Council for Civil Liberties in its 13-page submission during the consultation process for this legislation in 2014. As the Judiciary noted in its letter to the Taoiseach, the Association of Judges in Ireland, in its press release, and Michael Collins SC, in his article in theBar Review, have noted, the Bill does nothing to achieve its publicly stated purpose of removing political influence from the appointment process and, if anything, only serves to exacerbate the problem.

These amendments would have a real impact on the important stage two of the appointments process when the Government nominates a judge to be appointed by the President by restricting the Government to only choosing one of the three names provided to it by the commission. The Bill, as currently drafted by Government, does not reform stage two to any significant degree. The ratio of law versus lay members or what any commission or the Judicial Appointments Advisory Board decides will not matter if the Government of the day can continue to negate the whole of stage one and pick whomever it wishes, regardless of whether that name is included in the list of three names.

As I previously stated, I accept that the Government has not been doing this. Given that it can do it, however, it is now appropriate for us to address the issue and to ensure that it is not allowed to ignore the recommendations of the commission, particularly as we are going to such bother to set it up in the first place.