Catherine Murphy (Kildare North, Independent) | Oireachtas source

I thank Deputy Shane Ross for bringing forward this Bill. First, I wish to draw attention to Article 35.2 of the Constitution which states, "All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law". Is our method of appointing judges in keeping with this? I believe it is not.

In the debate on Second Stage of the Twenty-ninth Amendment of the Constitution (Judges' Remuneration) Bill in September 2011 the Minister for Justice and Equality, Deputy Alan Shatter, said:

The Irish Judiciary holds a unique place in the structure of our democracy, required daily to adjudicate on disputes between citizens and the other branches of the Government and for that reason it is vital that its independence is protected from all potential attack. The respect for and confidence in judicial decisions is based on the confidence that every person who enters a court is secure in the knowledge that the judge is independent of the State and not subject to interference or threat irrespective of the outcome of the litigation. This safeguard is fundamental to our constitutional system.

That indicates a thinking that there must be independence in how judges are appointed.

The Minister of State asked us to give examples. I will not bring forward examples, but I will refer to the remarks of the Chief Justice, Mrs. Justice Susan Denham, in her very unusual and rare intervention on behalf of all judges. She said, according to an article in The Irish Times recently, "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 appointments system." That is a serious point. Essentially, a democracy requires checks and balances. For the last three weeks we have been consumed by an issue that arose because of the absence of the checks and balances required. Clearly, there is the potential for a serious problem to arise. The article continues by stating judges are critical of the flawed and deficient consultation initiated by the Minister for Justice and Equality, Deputy Alan Shatter. The Minister of State has lauded that process, but the judges say, "Most fundamentally of all, however, the process itself is being initiated by a member of the Executive, and will apparently be decided upon by the Executive without further discussion."

Our problem is that we have an over-centralised system of governance, in which the Executive has an enormous amount of power. That is not what was intended by the framers of the Constitution. There was to be a separation of power between the Executive and the Oireachtas. As we saw in recent days, GSOC is supposed to report to the Oireachtas, but it was the Minister who appointed the judge and it was the Minister and the Attorney General who drew up the terms of reference. The Government is exceeding its powers all the time, to the detriment of the Oireachtas. That is very dangerous territory.

There are things about the Bill I would like to change but it needs at least to get to Committee Stage to refine it. Under the current system the Judicial Appointments Advisory Board, JAAB, cannot rank applicants for positions and the Government is not required to select from the list. What is being sought is that people should be promoted on the basis of merit. One of the improvements sought by Mrs. Justice Susan Denham is the provision of an education process within the legal system in order to determine suitability. Only recently we saw the need for that when a judge clearly indicated a considerable lack of understanding in a rape case and the impact it had on a victim. There are aspects of the courts system that manifestly need to change. One of the first things that needs to change is how we appoint judges.

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