Shane Ross (Dublin South, Independent) | Oireachtas source

However, the evidence is utterly compelling and has appeared in print and elsewhere without being corrected or contradicted that when in power, Fianna Fáil nominated people to the Judiciary who were so identifiably Fianna Fáil that they brought the judicial system into disrepute. It had been hoped when Fine Gael and the Labour Party took power that they would reform the system and make it impossible to do this, but far from it. The Government has indulged in an orgy of appointments of its own people to the top of the Judiciary which would make Fianna Fáil blush. It is quite extraordinary how, when it comes to reform of this sort, no Government has been able to do it. Governments cannot resist the temptation to put people in the High Court, the Supreme Court and the District Court, the worst of the lot, who are identifiably followers of the political parties in power or who have done service for them in the past. That is no longer acceptable. To ask us to pass such a Bill to appoint two more possible cronies of the Government in power is not acceptable either.

Of course, if the courts are short staffed and there is a backlog, they must have judges, but the way they are appointed is the most important aspect of the legislation which the Government has refused to tackle.

The Minister and Government are aware that the people most embarrassed by this abuse of the Judiciary are the members of the Judiciary. The Chief Justice has repeatedly demanded that the method of appointing judges is reformed because judges are embarrassed that their reputations could be sullied by this. Her words have fallen on deaf ears; promises have been made but nothing has been done. It is perfectly obvious from the attitude of the Government to this Bill, from the appointments that have been made and from the Fianna Fáil alternative that was produced, that this particular power of patronage will continue by agreement. Even if there is a change of Government next spring, if it is formed by one of the old traditional parties, there is very little hope that this abuse will end. There are no indications that anyone wants to do it.

The system was set up as a compromise in the late 1990s as a result of a row between Fine Gael, Labour and Fianna Fáil. Albert Reynolds, his Labour partners in Government and the President of the High Court came up with this extraordinary compromise on how to appoint judges. They set up the Judicial Appointments Advisory Board, which acts as a fig leaf for the legitimacy of appointed judges. The Minister of State, Deputy Ann Phelan, and the Minister for Justice and Equality, who is not present, will know that the result of the JAAB, which is known as "JAABs for the boys" in the Law Library, is that the Government always gets its judge. As Deputy Niall Collins said earlier, a list of seven is produced by the JAAB and given to the Government. The Government looks at the list and it if does not like it, bypasses it and takes somebody else. The system is simply a cover, veneer and fig leaf to pretend that somehow the new body has the freedom to make appointments. It does not make appointments, it makes proposals. To make sure there is not too much embarrassment, the Judicial Appointments Advisory Board is stuffed with Government appointees, three of whom are appointed by the Minister. Others are ex officioGovernment appointees, come from the Law Library or courts, or are judges who are political appointees. I think it was somebody in Fianna Fáil, when asked why on earth they had appointed a Fine Gael judge to the Supreme Court, said they had run out of their own people. They had appointed every single one they could possibly think of. Unfortunately, that system continues.

One of its great flaws, apart from the fact that it serves as a political channel or free pass to the Judiciary, is that since its establishment 20 years ago, it has not held a single interview. The Judicial Appointments Advisory Board has the power to hold interviews for judicial appointments to the District Court, Circuit Court, High Court and Supreme Court. However, it does not hold interviews, it only makes appointments. Prospective appointees are not asked any questions about their talents - they just get appointed. The JAAB sits, makes the appointments, sends a list of seven to the Government, the Government looks at it and says, "God, there is nobody in my party on this one - we are not taking any of these." Although, as it happens, there is always someone from the Government party on the list. However, in such a case, the Government bypasses the system, so we now have a system that is open to political abuse and a dumping ground for political patronage.

People will say the Judiciary has served us well, which may be a fair point, but that is not due to the method of appointment. The Judiciary is a protected political species. The fact that judges do not have to make a declaration of interests remains unreformed. The two High Court judges to be appointed by way of this utterly flawed system will not be required, unlike, rightly so, Members of this House and county councillors, to make a declaration of interest. For some reason, members of the Judiciary do not have to make such declarations. If a judge forgets or omits to declare an interest that might affect his or her judgment in a case, nothing will happen because nobody will know about it. A judge is supposed to so declare behind closed doors to the President of his or her particular court, but nothing will happen to him or her if he or she fails to do so. There is no transparency in the Judiciary in that regard. There is no guarantee that judges are acting in a transparent manner. They are protected in a way that no other group is. There is no justice behind this. The Law Library has been and remains a closed club in terms of self-regulation. Politicians are wary of mentioning or talking about the Judiciary, as evidenced by the fact that members of it are not supposed to be mentioned by name in this House. While they can be mentioned and criticised in the media and books for their judgments, under the rules of this House, for reasons I fail to understand, they are protected from criticism here.

My concern about the Bill is that these will be political appointments and I ask the Minister of State, Deputy Ann Phelan, to respond to that charge. The selection and appointment of good people to a rotten system lead to a discrediting of the system of appointment. The reality is that people who are not appointed on merit often move through the system quicker than those appointed on merit. That is happening. I know of several particularly able senior counsel who have ambitions to be appointed to the Bench, but they have been passed over time and again. It sticks out a mile - everybody in this House understands what I am talking about - that the only explanation for the appointment of particular people to these positions is their political affiliation.

It is imperative that the District Court be reformed. I accept that this is not directly relevant to the Bill, but appointments to that court are even more dubious. The Minister of State will be aware of the one or two high profile cases in the District Court in respect of which people got into hot water and had to resign. However, what we have never seen in the history of the state is the removal of a judge because it is impossible to do so. Judges rarely resign and are never removed. The two judges to be appointed under this legislation will hold their positions for life. The Minister of State will be aware that, in theory, there are ways of removing a judge. She will also know that there have been attempts to remove judges by tortuous processes in this House and through various committees. One such attempt, whether genuine, was cursed by delays and it never happened.

We are talking about appointing two people to jobs for life from which they cannot be removed because it needs two thirds approval of both Houses of the Oireachtas and that cannot be achieved. They will be politically appointed, get extraordinarily well paid and be accountable to no one.

I am against the extension of this political patronage from 35 judges to 37 judges. This Government has patently failed to stop patronage in the Judiciary and has abused its powers.

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