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

I have read this Bill on a number of occasions. It is ill-considered legislation. It is badly constructed. It will not even achieve the objectives that its few promoters within the Cabinet say will be achieved. More importantly, it will have long-term negative consequences for the public. In the opinion of Fianna Fáil, this legislation will have significant detrimental consequences. First, it will damage the quality of the justice administered by our courts. Second, it will politicise the appointment of judges to an even greater extent than currently. Third, it will establish an unnecessary and costly quango that will overcomplicate what should be a simple process of recommending the 20 or 30 people suitable for judicial appointment each year.

I wish to deal with each of these points in turn, starting with why Fianna Fáil believes that this legislation will damage the administration of justice. The Minister and I will agree that the administration of justice is an important role played by the courts under our Constitution. Under Article 34, justice is to be "administered in courts established by law by Judges appointed" under the Constitution and "administered in public". Every day of the week throughout the country, people can go to the Circuit Court, District Court or High Court and see judges, and sometimes juries, adjudicating on disputes between private citizens or prosecutions by the State against individuals. The variety of work that appears before our courts is considerable. It involves disputes between private individuals, criminal prosecutions where we sometimes have the benefit of juries adjudicating on cases, public law issues and, most importantly, claims brought by citizens of this country and others who claim that their rights under the Constitution have been infringed, sometimes by the Government, sometimes by the Oireachtas.

Hearings on these disputes are conducted by judges who have been appointed under our Constitution. For them to adjudicate on them, judges must have a knowledge not just of the statute law that we make in these Houses but also of the Constitution, which is the bedrock of our legal system. They must have a knowledge of the common law. Due to our history, we reside in a common law country where judge-made law forms part of our legal system. It is for this reason in particular that the job of being a judge is one that requires significant expertise. It is not a job that can just be conducted by any person who thinks that he or she can do it based on a belief of what is right and wrong. The law in this country is made by these Houses. It is also present from our Constitution. It is the function of judges and our courts to apply that law. To do so, they must have a knowledge of and expertise in the law.

Like many Deputies, the Minister would not question the importance and significance of the role our Judiciary plays. It has been one of the country's successes since Independence. Since that time, we have been able to establish an independent judicial system, one that stands up against tyranny, whether it be by our elected individuals or Government, and protects the rights of the citizen under the Constitution. Courts are respected because they are independent of the Government and are seen to be fair and impartial. That is a notable achievement, given that most disputes that reach court and a judge are adversarial in nature. In court disputes, there is generally a winner and a loser, so it is a notable success that the public at large has confidence in our judicial system.

Our courts are respected for their impartiality because of the role played by judges once they are appointed. Irrespective of their backgrounds, once they take the oath of office, they recognise that their responsibility is to adjudicate on cases fairly and impartially.

The Leas-Cheann Comhairle will be aware that it is unusual for there to be political controversy in respect of a judicial appointment. It does not happen, and it is good that it does not happen. In recent history, it has only happened on two occasions, the first of which was 23 years ago. As a result of that controversy, the Oireachtas decided that the law in respect of judicial appointments should be changed and the Courts and Court Officers Act 1995 was introduced. It was recognised by everyone in the House, and I assume it still is, that it was the role of the Government to nominate individuals for appointment as judges by the President. There is a great advantage in having Government responsibility for those nominations and subsequent appointments, in that, if people are found to have been inappropriately appointed, the Government is democratically accountable, not just to this House, but to the public, and can be held accountable at a future election.

In many of the functions it carries out, the Government requires assistance and recommendations from people of expertise. The Government cannot be expected to make decisions without being given advice on them. As a result, the law was changed 22 years ago to establish the Judicial Appointments Advisory Board, JAAB, the function of which was to give advice to the Government and recommend to it individuals who were suitable and qualified for appointment to judicial office. The power to appoint and nominate still remained with the Government, but it was an important signal that a statutory body was being put in place that would be able to assess which candidates were suitable for appointment to judicial office.

In 1995, the Oireachtas decided that the JAAB should comprise a number of judges, a number of lay people, an Attorney General and representatives of the legal profession. Currently, the JAAB has 11 members. Of those, five are members of the Judiciary, namely, the presidents of the District Court, Circuit Court, High Court and Court of Appeal and the Chief Justice.

There are also three lay members, an Attorney General representing Government, and two representatives of the legal profession. That balance was agreed to by this House in 1995 because it was recognised that there was a significant benefit in having the advice of judges when it came to recommending individuals for appointment to judicial office. It was also recognised that no one constituency wanted to be given a majority. It was required that there would not be a majority of judges on that board. There were five. It was four at the time they were appointed, but at present there are five out of 11 members. There are two members of the legal profession. There is one member of Government, the Attorney General, and there are three lay members who have an invaluable part in such processes and procedures due to their experience outside of the field of law. There was a benefit to that, which was why this House agreed to it back in 1995.

One of the most negative consequences of this debate to date has been the association of judges with members of the legal profession. It is completely unfair to present judges as being part of the legal profession. I know the Minister, Deputy Ross, has sought to present this to be the case on an ongoing basis. It would equally be very unfair of me to turn around and start referring to the Minister as a member of the stockbroking profession. He is not any longer. He was in the past but being so in the past does not mean he is at present.

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