Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

One of the fundamental requirements in a functioning democracy is an independent and effective judiciary. If we want to assess whether a country has a functioning democracy, the first thing we need to do is to identify whether it has an independent judiciary that can stand up to and stop actions of the parliament and-or the government which are unlawful or which infringe the rights of citizens. If a country does not have such a judiciary, it cannot be described as a real democracy. In totalitarian countries the courts and the judiciary become part of the ruling regime of the state. We saw how judges such as Roland Freisler in Nazi Germany and Andrei Vyshinsky in Stalin's Russia controlled courts that were nothing more than an appendage of the ruling regime in these countries. At no stage do courts that are controlled and subservient to a regime ever stand up to it; at no stage do they ever deviate from government policy.

When the Constitution was enacted in 1937, at a time when fascism was spreading throughout Europe, it established, in Articles 34 to 37, inclusive, an independent courts system. The operation of that system was obviously reflective of the system that had operated prior to independence, but, nonetheless, it finally and definitively established independent courts in the country. The Constitution expressly provides that justice is to be administered by judges appointed under it. We talk a lot about justice in this House and public commentary. It is important that we try to recognise what it is that justice seeks to achieve. It seeks to correct wrongs done; it seeks to uphold constitutional and legal rights; it seeks to provide punishment and-or compensation for those who have suffered through the wrongs of others; and it seeks to deter the State from unlawfully interfering in the lives of people.

The Constitution specifies in Article 35 that judges are to be appointed by the President. This is done after nominations are made by the Government. The Constitution also specifies that judges must take an oath on assuming office. Since enactment of the Constitution, hundreds of persons have been appointed as judges by the President. They have been appointed based on nominations made by the Government of the day. It is important to note that we had and have in this country an independent Judiciary, notwithstanding the fact that its members have been nominated by the Government. There are many examples in our history of judges and courts dealing a serious blow to the plans of the Executive because they infringed the rights of citizens or were otherwise unlawful. For example, we recall that, in 1986, the ratification of the Single European Act was stopped because the Judiciary and the courts stated it needed to be put to the people. There are hundreds of other examples where Ministers have been given what the Taoiseach would refer to as a "wallop" by the courts and long may that continue. Nonetheless, the manner in which judges have been nominated by the Government has been shrouded in mystery and the people do not know the basis on which individuals are nominated for appointment to such an important office. We know how professors in universities and the director general of RTE are appointed; therefore, it is extremely important that the public be aware of the manner in which individuals are appointed to the Judiciary. In order to ensure judicial independence will be strengthened, it is important that the public be aware of the characteristics the State seeks in persons nominated for appointment to the Bench. Although the country has been well served by the Judiciary, that has been despite, not because, of the judicial appointments process.

If we want to enhance and improve our democracy, it is important that the public be satisfied that persons nominated for appointment to judicial office are, in fact, the most suitable persons who have applied. It is the case that individuals with party political affiliations have been appointed to be members of the Judiciary. Many of that group were appointed because of these affiliations and some were appointed despite them. Nonetheless, the fact that they had political affiliations did not prevent them from exercising their judicial functions in an independent way. There must also, however, be a group of people who are not as identifiable and who deserved and wanted to be made judges but who never had that opportunity. They probably never got it because they were not connected with the Government of the day. If we had a system based solely on merit, many of them might have been appointed. It is important to point out that most judges were appointed on the basis that the respective Government of the day believed or had been advised the people it was appointing were the most suitable to fill the available posts.

The purpose of the Bill is to try to improve the process by which members of the Judiciary are nominated and appointed. I think every Member of the House will agree that the abiding principle must be that nomination and appointment to judicial office should be based solely on merit. People should not be appointed because of their party-political or ideological allegiance. They should be nominated because the Government believes they will make excellent judges who will be able to administer justice in the State. In order for Members to assess whether they wish to support the Bill, it is important that I, first, outline the current situation in the making of judicial appointments. If there is a vacancy in a court, an advertisement is placed by the Judicial Appointments Advisory Board, JAAB, that was established in 1995. The board simply gives advice to the Government on judicial appointments. Its job is to give the names of seven people to the Government for each vacancy, although it does not rank the individuals in terms of whom it believes is the best. The Government must first consider these names and, if it decides not to select any of the individuals on the list submitted, it must publish in Iris Oifigiúilthe fact the person chosen was not recommended by the JAAB.

The system in place does not identify the best candidates for appointment. It is difficult for politicians or persons who are not acquainted with the courts to know what are the characteristics of a good judge. A good judge is someone who applies the law in a fair way. It is not his or her job to become a social engineer or an unelected politician who seeks to decide cases based on his or her own preferences, whether political or social. The job of a judge is to adjudicate on facts and apply the law in a correct manner.

In Ireland we have had a creative Judiciary that, since 1965, has recognised that under the Constitution citizens enjoy unenumerated rights, that is, rights not written down in it. The Judiciary has enumerated these rights and extracted them from many decisions of the superior courts.

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The rights of Irish citizens and people living here have been improved because judges have extracted and enumerated those rights. The importance of appointing the right people to the Bench is evident from the fact that the Judiciary plays such an important role in enumerating the rights of Irish citizens.

The qualities and characteristics that the State should seek in judges are integrity, independence, intellectual skill, good temperament, common sense, sound judgment, impartiality, objectivity, fairness, equanimity, composure, sensibility, cultural sensitivity, courtesy, consideration, an ability to communicate well, a strong work ethic, efficiency, organisational skills and an ability to command respect. They must also have a very good understanding of the law. It must be the case that judges who are appointed to apply and interpret the law understand the law. For that reason, we need good lawyers to apply to become judges. Not every good lawyer will make a good judge, but one cannot be a good judge unless one is a good lawyer. For many years we have appointed judges who fulfil many of these characteristics but it is essential that we seek to identify the best candidates for appointment so that they can be selected.

The general purpose of the legislation is to set up a judicial appointments commission. Its job will be to recommend and rank in order of preference three persons for appointment to each vacant judicial post. Constitutionally, the entitlement to nominate still remains with the Government so it is necessary to ensure that any new body that is established conforms with that constitutional requirement. The proposals contained within this legislation do conform with the requirements of the Constitution.

It is important that it is the Government that is ultimately responsible for nominating individuals for appointment by the President. Otherwise we will hand over this crucial responsibility to an unelected body that is not accountable to the people. What we need is a body that makes recommendations, and those recommendations must be taken seriously and considered adequately by the Government.

If under this legislation the Government decides not to nominate one of the three individuals recommended by the judicial appointments commission, it must provide a reasoned explanation on the Minister's website. I am conscious that, at present, the Government has indicated that it is its preference not to nominate for appointment any new judges until new legislation is in place. The Government should be careful about that proposed approach. The individuals who will be affected by a delay in appointing judges to the Bench are not the lawyers who are seeking appointment or the politicians but the individuals who are waiting to get their cases heard. Most people stay away from the courts. Those who go to court probably go only once or twice in their lives, and it is an extremely stressful occasion for them. People are entitled to know when their cases will be heard rather than having to go to the court only to be told there is no judge available. The Government, notwithstanding the fact that it is anxious to introduce legislation in this area, must continue its constitutional job to nominate individuals to the Bench.

I remind the Government that, in November 2010, former Senator Pearse Doherty, who is now a Deputy in this House, took a case challenging the decision by the then Government not to have a by-election. He said in making his case that the Government was failing to comply with the constitutional requirement that sought to ensure constituencies had full representation. The courts agreed with him. The court said one cannot delay unreasonably in holding a by-election. Similarly, if the current Government continues to delay in appointing individuals to vacant positions on the Bench, it will be threatening the requirement of justice, as provided for in Article 34 of the Constitution.

I am glad to see the Minister for Transport, Tourism and Sport, Deputy Shane Ross, is present. He has a considerable interest in this topic. I may be wrong in my assessment of him and, if I am, I apologise. My assessment of his concern in respect of this issue is that what is occurring may be like what is occurring with the boards of Irish public companies in that individuals are being appointed to the Bench because they are friendly with individuals in the Government or elsewhere. That may have been a problem in the past but it is not the problem at present. The current problem in respect of appointments to the superior courts is that not enough people are applying for the positions. This is partly attributable to economic issues, such as the fact that one must now be 20 years on the Bench before one can get a pension. Thus, people have to apply by the age of 50, which deters many. There was also a constitutional amendment that removed the guarantee judges had in respect of their salary. That probably affected the number of people who wish to apply. This is an extremely important issue and I welcome the fact that there is such interest in it among the members of the Government. That said, it is important that we seek to get it right.

I shall move on to the provisions of the Bill. The Bill sets out in Part 2 the terms under which the judicial appointments commission shall be established. It sets out the functions of the commission. One of the important functions will be to invite individuals to apply. We live in a small country and it is important that a body such as this seeks to identify and headhunt people it believes will be good judges.

We set out the membership of the commission in section 7. There are 12 persons on the commission I have proposed. Of those 12, only five will be judicial members. Seven will be non-judicial members. It is important that the individuals recommending persons for appointment have an understanding of how courts operate. If we wanted to appoint the editor of a newspaper, it would be extremely important for the interview panel to contain individuals who know how newspapers operate. Similarly, it is vital that we have in the recommending process and among the membership of the commission individuals from the courts who know what is required of a judge and who know better than most what is required of a person to be appointed as a judge and whether he or she would be suitable. The five judicial members are the Chief Justice and the presidents of the four other courts.

I propose seven non-judicial members. It is difficult to identify persons who should be on such an important body. I am happy to accept any proposals that come from elsewhere in the House. We need to realise, however, that no matter what regime operates in the world, people who are appointed as judges have to be lawyers. I have never heard it proposed that judges not be lawyers. We have a system in Ireland where some cases are heard by juries. Juries determine questions of fact but most cases are determined by judges sitting on their own. Not only must they determine fact but they must also have a good understanding of the law. For that reason, there should be representation from the Bar Council, the Law Society and the Free Legal Advice Centres, which represent another vital area of the legal profession. There should be members from the Citizens Information Board, an tÚdarás um Ard-Oideachas, the Competition and Consumer Protection Commission and the Irish Human Rights and Equality Commission. I am open to proposals in respect of the make-up of the commission.

The rest of Part 2 deals with the disqualification of members of the commission and how long they can serve. Part 3 deals with the judicial appointments process. What will happen under this scheme is that if there is a vacancy on a court, the Minister will request the commission to recommend three persons and rank them in order of preference.

Under section 13, the commission will be able to consult the court in order to assess what competencies are required. One might find that a court needs a judge to be recruited who is an expert on family law or criminal law, or a judge who is proficient in the Irish language. That is an important requirement at the outset.

Section 15 sets out the criteria for a recommendation for appointment. This is a requirement imposed on us not simply because it is common sense but also because there was a declaration of the European Networks of Councils for the Judiciary, signed in Dublin in May 2012, calling for a clearly defined and published set of selection competencies against which candidates for appointment to judicial office should be assessed. That is what we have done here. We have set out the characteristics and competencies. I recited them earlier. It is important that they be contained within legislation so the public can see the characteristics required of somebody being appointed to such an important job.

Section 17 sets out the requirements concerning a recommendation by the commission. The commission may interview or seek individuals but ultimately it shall submit to the Minister the names of three persons whom it recommends for nomination and it shall rank those three persons in order of its preference.

This legislation also provides that anyone applying for judicial office must give an undertaking to engage in training if required to do so by the president of his or her court. This is an important requirement because sometimes judges require training in areas of the law which are new to them.

It is also important in section 18 that the deliberations of this new statutory body remain confidential. People will not apply if they think it will be publicly disclosed that they applied and were rejected. Section 22 deals with nomination to judicial office. After the process is completed by the judicial appointments commission, it should give the Minister the names of three individuals, ranked 1, 2 and 3. The names then come to Cabinet and the Government makes a decision. The Government, if it wants to, can pick No. 3 or No. 2 and does not have to provide any explanation. This is important in order to ensure it remains constitutional. However, if the Government decides to pick none of the three, it must publish on the Minister's website a reasoned decision for not having done so.

The other Parts of the Bill relate to recommendations by the commission for nomination to the important positions of Chief Justice and presidents of the Court of Appeal, the High Court, the Circuit Court and the District Court. The basis upon which Governments decide to nominate individuals to, for instance, the position of Chief Justice is one of the great mysteries of our time. The Bill sets out to require the commission to provide the Government with a recommendation in respect of individuals who it believes would be suitable for appointment to these very important positions.

A number of other minor issues are dealt with at the end of the legislation, with which I will deal briefly. Before doing so, I should say that this legislation would also be of use for appointments to the European Court of Human Rights and the two courts established under the Treaty on European Union. Part 4 proposes a change to the law that would require that individuals, in order for them to be appointed as judges of the superior courts, have at least 15 years' standing as a lawyer. At present they only require 12 years' standing. Finally, there is a provision that would increase the retirement age of District Court judges from 65 years to 70 years. At present District Court judges must retire at 65 but they are allowed to seek a renewal on a yearly basis. That should be brought in line with other judicial positions, and their retirement age should be 70.

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