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. It supports the principles of this Bill which seeks to reform the way in which individuals are selected for appointments to the judiciary by the Judicial Appointments Advisory Board, JAAB. The legislative provisions including a weight on the principle of non-discrimination, promotion of diversity and safeguarding against improper motives for appointment are to be welcomed.

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 the best and brightest wielding the gavel, independent of political or personal pressure, is vital to the proper administration of justice in the State. The JAAB was established under the Courts and Court Officers Act 1995. Under its remit, the board invites candidates to submit applications for judicial vacancies when those vacancies arise, assesses the applications it receives, and then submits the names of a maximum of seven suitably qualified candidates to the Government for its consideration.

The JAAB was established in the wake of previous appointments which caused controversy and threatened the stability of the Government. The intention behind its creation was to have taken sole discretion for judicial appointments out of the hands of Government and give it to an independent body. Unfortunately, the JAAB in its current role and with its current prescribed procedures has not fulfilled the original intention of its creation. The State's judges have called for a radical overhaul of the judicial appointments process stating that a merit-based system that limits the Government's scope to reward political allies is vital to retain public confidence in the justice system. Since this Government came to office, with a promise of a so-called "democratic revolution", we have seen a litany of appointments which are overtly political in nature.

So blatant were these appointments that in a rare intervention in January 2014, the judges, through a committee chaired by Chief Justice Ms Susan Denham and including representatives of all court jurisdictions, were sharply critical of the "demonstrably deficient" system and said wide-ranging changes are needed to attract high calibre applicants to the bench. They felt the need to state that political allegiance should have no bearing on appointments to judicial office. This was a direct response to this Government's approach to filling the benches with its political supporters.

The body that represents 90% of Ireland's judges felt the need to chastise this Government by stating, "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". The sentiments expressed here are a stunning rebuke to this Government's hypocrisy in the area of judicial appointments.

We need to get back to a system where appointments made are clearly without reproach. The rule of law is the bedrock of democracy in our society. It means all citizens can rely on a set of predictable, stateable rules to govern society that can be independently interpreted. This Government has continuously undermined the administration of justice in this country, by refusing to listen to whistleblowers about the maladministration of justice; the closure of Garda stations leaving rural Ireland without police protection and the undermining of the Judiciary through a series of measures to undermine its independence and ignore matters of concern raised by it.

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 active approach to interpreting the Constitution. Their decisions have direct political consequences. The establishment of the existence of unenumerated rights in the seminal 1965 Ryan case has transformed the evolution of our Constitution. 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 also means the Judiciary has wide discretion to interpret the spirit of the Constitution, not simply what is explicitly written in the document. This gives judges real political power. The establishment of rights, such as the right to privacy in the 1974 McGee case, legalised contraception in Ireland or the controversial 1992 X case that found for the right to travel, have all been deeply political decisions.

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It is also worth noting that the Constitutional Convention debated whether to endorse the enshrining of socioeconomic rights in the Constitution and found they should be. This would expand the powers of the Judiciary to cases beyond the 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 in regard to whom we appoint to these highly sensitive and influential positions.

The Bill put forward today would represent a first step in reforming the appointment process. Fianna Fáil's view is that we can take a constructive approach to changing the system without the need for a referendum. To that end, we have introduced legislation to tackle the long-standing problems in the judicial appointments process. Our Bill is based on the declaration of the European Network of Councils for the Judiciary on judicial recruitment and appointments. 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 a particular judicial office. The Minister may or may not accept its recommendation. Under our Bill, a new judicial appointments board would be established and the existing Judicial Appointments Advisory Board abolished. Instead of recommending seven persons for appointment to judicial office, the judicial appointments board would recommend candidates whom it would certify as the best candidates for that particular 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 in regard to the Judicial Appointments Advisory Board.

The Judiciary is a vital part of our system of government and 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. Judicial posts are deeply powerful positions with real political consequences. We must construct an appointments system that reflects this pivotal role. Fianna Fáil has put forward its proposals based on European best practice with a view to creating an open, transparent and reliable system of appointments. Our Bill will not require constitutional change and can be legislated for by the Government immediately.

As I have said before in this House, the challenge is to balance the independence of the appointments process with the need for accountability. It is a difficult balancing act. One of the largest sectors in society is the local government sector, and the most powerful people within that sector are the local authority managers, who are appointed by an independent commission. They have huge reserved executive powers, which local authority members, who are directly elected by the people, cannot challenge. That is wrong. Local authority managers are appointed by a body that is answerable to nobody. We need an appointment system for the Judiciary which ensures its members can be held politically accountable and answerable. We will not get that if we have a system which operates behind closed doors and locks out public representatives.

Public representatives, on the Government side and otherwise, must have a say in the appointment of judges. Governments are mandated by the people to govern, not to be mere bystanders in a process of formalities. This is particularly the case with regard to the administration of justice. There has been criticism of the current Judicial Appointments Advisory Board but, to its credit, only two judges have been removed, Brian Curtin and Heather Perrin - in both cases, for obvious reasons. No screening appointments process could have foreseen the activities in which those individuals would engage and which led to their removal from the bench. That must be said in the defence of the Judicial Appointments Advisory Board.

This is a welcome debate. We must have accountability of Government and independence in the appointment of the Judiciary. I do not support dismantling the current system entirely and handing the appointment of senior positions over to persons who cannot be held accountable if something goes wrong. Accountability is what being in government is all about.

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