Niall Collins (Limerick, Fianna Fail) | Oireachtas source

Fianna Fáil welcomes the opportunity to contribute to the debate on the mechanisms used to appoint personnel to the Judiciary, which is central to the branch of government in this country. The rule of law is the bedrock of democracy of our society. It means all citizens can rely on a set of predictable, stateable rules to govern society that are independently interpreted. As a third branch of government, the Judiciary has a pivotal role to play in the stability and continuity of the State through the application of the rule of law. Ensuring we have best and brightest wielding the gavel, independent of political or personal pressure, is vital to the proper administration of justice in the State. The ongoing debate about how we appoint judges is an important discussion that directly has an impact upon the concept of democracy. The Minister's consultation period on the future of the appointments process has prompted a lively debate on how best to structure our judicial branch. We have seen the hard-hitting document of the judicial appointments review committee, composed of senior judges, and the comments of Chief Justice Susan Denham on the principle that political allegiance should have no bearing on appointments to judicial office. The report stated: “It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system”. That body represents 90% of Ireland’s judges. The comments must be taken in the context of an appointments system that governed the judges now making such comments.

There are real concerns about how we appoint judges that need to be addressed. With regard to judicial powers, the Judiciary is far from non-political. Article 40.3° of the Constitution allows judges to take an activist approach to interpreting the Constitution. Their decisions have direct political consequences. The existence of unenumerated rights in the seminal 1965 Ryan case has transformed how our Constitution has evolved. It has meant the fundamental law of the land has been able to adapt to a rapidly changing country as judges are empowered to find rights in the Constitution that are not explicitly enshrined. It has also means the Judiciary has wide discretion in interpreting the spirit of the Constitution, not simply what is explicitly written in the document. This gives them real political power. Rights such as the right to privacy in the 1974 McGee case, legalised contraception in Ireland or the controversial 1992 X case that found the right to travel have all been deeply political decisions.

It is also worth noting that, this weekend, the Constitutional Convention will debate whether to endorse the enshrinement of socioeconomic rights in the Constitution. This would expand the powers of the Judiciary to cases beyond the current civic and political rights contained in the Constitution as it stands. This level of political influence on the type of society we have and the rules that govern it underlines the need for this debate and for transparency on who we appoint to these highly sensitive and influential positions.

Deputy Ross’s Bill takes a radical approach to the issue and involves a referendum to reform the appointment process. Setting aside the immediate argument of whether to change the appointment process in the Constitution, the complex challenge of passing it via a referendum under Article 46° presents a real practical problem. The failure of the Seanad and Oireachtas inquiries referendums revealed the understandably sceptical approach Irish people take to constitutional amendments. Even the children’s referendum, seen by many as a valid issue with complete cross-party support, was opposed by 42% of voters on an abysmally low turnout of 33%. A referendum on changing the appointments process would instantly face the headwinds of voter fatigue on constitutional change and innate scepticism in upholding the Constitution. If a referendum was to be held before the next general election in early 2016, it would be posed alongside the promised marriage equality referendum, possibly in 2015. If not, the issue will be part of the general election campaign and be entrusted to a new Government.

Fianna Fáil believes we can take a constructive approach to changing the system without the need for a referendum. Fianna Fáil has introduced legislation to tackle the longstanding problems in the judicial appointments process. Our Bill is based on the declaration of the European Network of Councils for the Judiciary on the recruitment and appointment of members of the Judiciary. At present, the law simply requires the Judicial Appointments Advisory Board to recommend to the Minister for Justice and Equality at least seven persons for appointment to that judicial office. The Minister may or may not accept the recommendation. Under our Bill, a new judicial appointments board would be established and the existing Judicial Appointments Advisory Board would be abolished. Instead of recommending seven persons for appointment to judicial office, the judicial appointments board would recommend for appointment by the Government candidates who it would certify as the best candidates for appointment to that judicial office. This would ensure high calibre candidates are drawn upon to fill judicial vacancies. This process would be fully open and transparent, in contrast to the behind the door approach taken to date with the Judicial Appointments Advisory Board.

The judicial branch is a vital part of our system of government. It is the cornerstone of the rule of law. Having a genuinely independent Judiciary, free from political pressure, is central to a functioning democracy where citizens have recourse to justice. It is also a deeply powerful position with real political consequences. We need to construct an appointments system that reflects this pivotal role. Fianna Fáil has put forward its proposals based on European best practice to create an open, transparent and reliable system of appointments. Our Bill will not require constitutional change and can be legislated for by the Government immediately.

The challenge is to balance the independence of the appointments process with accountability. It is a difficult balancing act. There is a certain inconsistency in the Bill proposed by Deputy Ross. I listened to him and I have spoken to him and I appreciate what he is trying to achieve. I have an issue with saying that all judges in the current complement have been politically appointed and saying that it is wrong without backing it up by pointing to any wrongdoing. Taking the appointments process away from the present system and giving it to an Oireachtas committee is a little hypocritical. This is saying the current political process is wrong but moving it to committee of the House is similar and a parallel political appointment process.

One of the biggest sectors in Irish society is the local government sector. The most powerful people in it are local authority managers, who are appointed by an independent commission. They have huge reserved executive powers and the local authority members, who are directly elected by the people, cannot challenge them. I think that is wrong. They are appointed by a body that is answerable to no one. We need an appointment system for the Judiciary where someone can be held politically accountable and answerable. We will not get it if we have a system behind closed doors that locks out public representatives. Public representatives, of the Government side or otherwise, must have a say in the appointment of judges. There has been criticism of the current Judicial Appointments Advisory Board but, to its credit, only two judges have been removed for obvious reasons in the public domain. These are former judges Curtin and Heather Perrin. No screening appointments process would have screened what they were up to, which led to their removal from the bench. That must be said in the defence of the Judicial Appointments Advisory Board. It is a welcome debate but we must have accountability of government and independence in the appointment of the Judiciary. I do not subscribe to removing everything and giving the appointment of senior positions to people who cannot be held accountable if something goes wrong. Accountability is what is being in government is all about.

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