Jonathan O'Brien (Cork North Central, Sinn Fein) | Oireachtas source

I acknowledge that the Tánaiste advised me that she may have to leave before I conclude.

I commend Deputy O'Callaghan on the publication of his Bill, which is comprehensive and well-drafted legislation. It is clear that considerable thought went into it. This is an area where we need to be very careful because it is necessary to work around constitutional limitations in the appointment of judges.

The Tánaiste has indicated her intention to publish the general scheme of a Bill at the earliest possible opportunity. Unfortunately, we have heard that on numerous occasions and we still do not have an indication as to when the general scheme will be published. Deputy O'Callaghan has pointed out the contradiction that is facing the Government. On the one hand it has indicated there will be no further judicial appointments until the new legislation is in place. However, owing to failure to make appointments, even the Court of Appeal is estimated to have a backlog of about 1,800 cases, which is not acceptable and cannot be allowed to continue. The Government needs either to make a decision to publish the legislation as quickly as possible, let us debate it and pass it, or to make a decision to recommence the appointment of judges.

Sinn Féin has a long-standing position in this area. In 2003 in the Six Counties a criminal justice review document dealt with the appointment of judges, which led to the Northern Ireland Judicial Appointments Commission being given enhanced powers not only in the appointment but also in the removal of members of the Judiciary in the North. That is something we have long supported and giving those enhanced powers to the commission within the Six Counties was a key part of the negotiations with the DUP in 2008.

There are similarities between what the Government proposes to introduce as outlined in the programme for Government - the Tánaiste has outlined some of those issues - and some of the provisions in Deputy O'Callaghan's Private Members' Bill. For me and my party it is not just about the appointment process. There are broader matters we need to consider. There are very limited means of investigation into the conduct of members of the Judiciary where allegations of wrongdoing have been made. Very few constitutional provisions govern such investigations. We should look at that area during the passage of this Bill or if that is superseded by the publication of a Government Bill, I hope it will be contained in the Government's proposed legislation.

I understand the Government is considering introducing a code of conduct as part of its general scheme. I believe that came up in the consultation process undertaken in 2014. If that is the case I would welcome it. A code of conduct needs to be put in place. In addition to a code of conduct, we also need a mechanism to remove judges and we need further discussion on the issue. It is not contained within Deputy O'Callaghan's Bill which we are debating tonight and I have not seen it in the programme for Government.

The programme for Government is very clear in what it proposes. It proposes to get rid of the JAAB and introduce a judicial appointments commission. It refers to the makeup of that commission and proposes reducing the number of persons being recommended to Government for consideration. That is all well and good and similar to what Deputy O'Callaghan has proposed. However, again there is no mention of the process for removing judges. We need to have a serious look at that issue. If it is not something we can do during the passage of this Bill, I hope the Government can deal with it when publishing its Bill.

We could also have further discussion on the makeup of the commission. I do not believe the Government has indicated the number of members of the commission. It indicated it would have a lay majority and a lay chairperson. The Bill before us tonight also proposes a lay majority. It does not go so far as to propose a lay chairperson but nor does it rule out that possibility from my reading of Deputy O'Callaghan's Bill.

Deputy O'Callaghan's Bill proposes putting into legislation the nominating bodies for those laypersons. I do not know if it is correct to define it in legislation, but I agree that the nominating bodies need to have the expertise to know what is needed for any judge proposed for appointment. We should have further discussion on that. Deputy O'Callaghan has said he is open to that discussion as the Bill progresses.

Section 8 deals with the terms of office of members of the commission and section 9 deals with the disqualification and removal of members of the commission. I again return to the point that if we are to have comprehensive legislation dealing with judicial appointments, I would hope it would include a code of conduct and the removal of judges.

There is much that is of merit in having elements of Deputy O'Callaghan's Bill and some of the statements from the programme for Government, which will hopefully be reflected in the Government's Bill. I believe this is an issue on which we can find consensus across the Chamber. That is sometimes very rare. On this issue, there is a general consensus that this system needs to be overhauled, that there needs to be a lay majority on any commission and consensus on the make-up of the commission and on some of the powers.

The only other area that I believe we need to look at is ongoing training for members of the Judiciary. Some reference is made to training for people who are put forward for appointment in Deputy O'Callaghan's Bill, but as with any other profession, if one is in a position for 20 or 30 years, one has to have that continual professional development. It is my understanding, though I am no expert on this, that there is no requirement on judges to engage in any continuous professional development. That is something that they should be engaging in. Whether that can be put into any possible legislation remains to be seen, but it is an area we would like to explore further on Committee Stage if we get the opportunity to discuss Deputy O'Callaghan's Bill. As I said, continuous professional development for judges is as critical as continuous professional development for teachers, social workers or in any other group in society. Given the important role that we place on members of the Judiciary, it is crazy to have a situation in which they are not obliged to engage in that continuous professional development.

We will be supporting the passage of the Bill to Committee Stage. My suspicion is that it is going to be overtaken by the publication of a Government Bill, which I would hope happens sooner rather than later. The Minister for Transport, Tourism and Sport, Deputy Ross, has a particular interest in this and I do not think it is any secret that there are probably differing opinions within Government on how best to proceed. I hope that those differing opinions can be resolved in the very near future. We cannot have a situation in which we are saying on one hand that we are not going to appoint any further judges until we actually resolve this, and then have no indication of when this is going to be resolved. It is not sustainable and something has to give.

I commend Deputy O'Callaghan. We will be supporting the passage of the Bill to Committee Stage. If we do get the opportunity to discuss it on Committee Stage, I acknowledge the Deputy's willingness to look at the area of lay representation and how we nominate those people. We will also be looking at tabling some amendments around the introduction of a code of conduct and the possibility of giving the commission extended powers to look at the removal of judges, or at least the recommendation to remove judges. Of course, with any recommendation to remove a member of the Judiciary, there has to be a fair hearing for that member and there has to be an appeal mechanism put in place. Again, that is probably something that we need to have a look at as the Bill progresses.

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