Paschal Donohoe (Dublin Central, Fine Gael) | Oireachtas source

It has been alleged that there is political interference in how our Judiciary operates. I want Deputy Ross to give me an example of this. He referred to the fact that an accident has never happened. I want an example of an accident that might have happened. I suggest that an accident has not happened because we have an independent Judiciary which has exercised its powers throughout the history of our State independently of political influence from this or any other Government. In the remainder of my contribution I will address the substance of the Bill introduced by Deputy Ross but I still want him to provide an example that would underpin his claims. Since 1922 we have had a robust and independent Judiciary but apparently Deputy Ross and his Independent colleagues believe they are the only people who can be trusted to appoint our judges. Members of the Irish Judiciary point out that they are ranked among the most independent in the world. I assume Deputy Ross is not saying otherwise in respect of our judges.

Over the past three years, the Minister has been in a position to closely observe how the existing system of judicial appointments is operating and he has already formed the view that it is very much of its time. He believes reforms and improvements can be made to render the system more transparent and accountable while also ensuring that the independence of our Judiciary is fully protected and that the Judiciary continues to be respected by the Irish people and internationally. The Minister believes that the current system of appointing judges could benefit from a review and, as I already mentioned, he initiated a consultation process in December as a first step in such a review. Indeed, it is important to say that this is the first such open consultation to take place on the statutory provisions applicable to judicial appointments since the Judicial Appointments Advisory Board was established, and the Minister is to be commended for that. The Minister believes it is important that reforms applicable to this area derive from a considered consultative process, public debate and debates in this House, and are not simply magicked up like a rabbit out of a hat without any serious consideration being given to the implications of what is actually proposed.

Deputies will be aware that, under the Constitution, judges are appointed by the President on the advice of the Government. The current process for the appointment of judges in Ireland is set out in sections 12 to 17 of the Courts and Courts Officers Act 1995, which established the Judicial Appointments Advisory Board, JAAB. The system provided a structure through which applicants wishing to be considered for judicial appointment may submit written applications to the JAAB providing information on their education, professional qualifications, experience and character. Amendments to the Act in 2002 rendered practising solicitors eligible for appointment to all of our courts. This was a move originally advocated by the Minister some years earlier and as a consequence both solicitors and barristers in legal practice for a designated number of years are eligible for appointments to each of our courts from the District Court up to and including the Supreme Court. The JAAB, which was established to recommend persons for judicial positions, consists of the Chief Justice, the Presidents of the High Court, Circuit Court and District Court, the Attorney General, a practising barrister nominated by the chairman of the Bar Council, a practising solicitor nominated by the president of the Law Society, and no more than three persons appointed by the Minister for Justice and Equality. The role of the board is to identify persons, through their own application or the board's invitation, who are suitably qualified for judicial office.

The current criteria for appointment as a judge are set out in sections 16 and 17 of the Courts and Courts Officers Act 1995. The board cannot recommend the name of any person unless in the opinion of the board the person concerned has displayed in practice as a solicitor or barrister a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned, is suitable on grounds of character and temperament, is otherwise suitable and complies with section 19 of the Act. Short-listing is expressly on the basis of competence and merit, not political affiliation. The remit of the board excludes the offices of the Chief Justice and presidents of the other courts. Where the Government proposes to appoint a person who is already a judge, the board is not involved. In addition, the Standards in Public Office Act 2001 requires applicants to certify that their tax affairs are in order. While the decision as to who should be recommended to the President for appointment to judicial office rests with the Government, it has been the practice of this Government to recommend to the President for appointment only persons who have been recommended as suitable for appointment to judicial office by the board. The only exception to this is where existing members of the Judiciary have been promoted to a higher court.

The fourth progress report of the All-Party Oireachtas Committee on the Constitution stated:

This recent procedure supersedes the rather informal process pursued by successive governments who were seen to appoint, almost invariably, their own supporters to judicial office. There is  no evidence, it should be noted, that such appointees displayed favouritism to the party that appointed them. The new procedures were introduced because there was pressure on governments to ensure transparency in appointments.

It should be remembered that the board is given complete freedom to establish its own processes. Indeed, it is given express statutory power to engage in certain functions to assist it in the performance of its critical task, including a remit to interview applicants for judicial office. Unfortunately, this has not happened to date, but in a recent letter to the Minister, the Chief Justice said the board was now considering doing so, and the Minister welcomes this proposed initiative. The manner in which the board fulfils its statutory functions is, of course, the responsibility of the Chief Justice.

The Minister is of the view that the current legislative arrangements under which JAAB operates require change to assist it in the important work it is required to undertake and to provide to the Government more information and greater assistance in the making of judicial appointments.

For reasons of political accountability, the Minister is satisfied that the current constitutional arrangements, which require that ultimately it is the responsibility of Government to recommend to the President those to be appointed to the Judiciary, should remain as they are and that they have well served the test of time and are in the public interest. This position is both informed and supported by previous work undertaken by the Constitution Review Group and by this House on judicial appointments. I note in particular the comments of the All-Party Oireachtas Committee on the Constitution in its Fourth Progress Report:

The independence of the judiciary might suggest that the executive should have no discretion in the appointment of judges. But, since the judiciary is an organ of state, it must ultimately be held accountable to the people. As Chief Justice Finlay put it [in 1998]:

At the end of the day somebody must be accountable for the standard and type of judiciary that is appointed.

The Constitution Review Group of 1996 also considered whether the power to appoint judges should be taken out of the hands of Government and given to the President or some other body. It considered the provisions of the Courts and Court Officers Act 1995 and concluded:

The committee takes the view that our present system of appointing judges should be retained. It feels that the government has sufficient non-partisan advice from the Judicial Appointments Advisory Board and that it, as the executive of the elected representatives of the people, should retain the final decision.

In this Bill, Deputy Ross proposes that Members of the Oireachtas should choose our judges, but only those unconnected to political parties-----

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