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

Similarly, it is wrong and inappropriate to refer to judges as members of the legal profession. They are not. They are people appointed to office under our Constitution, similar to the offices of the Ministers opposite, except that they take an oath of office to abide by the Constitution.

The proposal contained within the legislation being considered this evening is to change the Judicial Appointments Advisory Board. We are going to set up a new commission. I wish to look at the grounds on which I state this will damage the administration of justice. Under the new proposals, there will no longer be an advisory board of 11 members. Instead there will be an advisory body of 13. Those 13 members will be made up of three members of the Judiciary, down from five; seven lay people, up from three; and we will still retain the Attorney General and the two representatives of the legal profession.

The question I have asked repeatedly, and which has repeatedly failed to receive an answer, is what is the public benefit in reducing the involvement of members of the Judiciary on this board? What is the public benefit of increasing the number of lay members involved in this board to seven? I have asked this repeatedly and I have never received an answer. The Taoiseach referred today to the Medical Council and a number of regulatory bodies having lay majorities. He is absolutely correct. Of course if there is going to be a regulatory or supervisory body which will supervise or regulate a profession it should have a majority of lay members. Most professions apply that at present. This is not a regulatory or supervisory body, however. This is an advisory body. It is put there to assist the Government in identifying the most suitable persons for judicial office. It is there to assist in what I assume is the agreed objective of everyone, that is, to try to get the most suitable and best qualified candidates to apply for judicial office.

The Minister, Deputy Ross, has stated that the objective of this change - the reduction in the number of judges and the increase in the number of lay members - is to depoliticise the appointments of judges in order that they are not misused by parties in government to favour political friends. At the outset, I fully agree with that objective. It has been the case in the past that individuals have been appointed to judicial office because of their political connections. It has been the case in the past that individuals have been overlooked because they have not had political associations. That problem, however, has been exaggerated. When one looks at the performance of the Irish Judiciary it is simply dishonest to say that it is a body which has been infiltrated and infected by an excess of party politics.

As I said, I agree with the objective, but let us look at the method of achieving this objective. In order to get rid of party politics from the appointment process, the Government suggests that we reduce judicial involvement and that we increase lay participation on this advisory board. The real problem in respect of overly political appointments arises at the Cabinet table. We know that from recent events. It is not a problem with the JAAB. It is a problem with what happens at the Cabinet table when individuals try to turn a blind eye, to promote their friends or to be asleep when important events take place.

It is simply wrong for the Government to suggest that to resolve the problem of too much politicisation in the appointment of judges, we need to remove the influence of judges on the advisory board. Does anyone in this House actually think that the Chief Justice or the President of the Court of Appeal, the High Court or the Circuit and District courts have as their objective the recruitment of their party political friends? It is an insult to the Judiciary to say that this legislation is required to depoliticise the appointment of judges. I often think that the role of the president of a court is similar to the role of a school principal. When it comes to the recruitment of a new teacher, all a school principal will want is to make sure that the person hired is hard-working, fair and will do a day's work. I believe that is also the objective of Presidents of the High Court. They have no interest in having party hacks or friends appointed. They want people who are hard-working and who are appointed fairly. One point that has been overlooked is that, if one looks at the proposal being put forward by the Government, by establishing an advisory board which maintains the presence of the Attorney General the Government is ensuring the continued involvement of its interests in the advisory process.

Unfortunately, the argument being used to a large extent in this debate is why would there be opposition to lay people being on a board? It sounds as though it is very transparent, modern and something that this new Government would want to advance. I need to explain there are consequences and a downside to this. This process will result in many unsuitable people being recommended for appointment to judicial office. The advantage of having a judge on advisory boards is that judges are aware, first of all, of the nature of the work which judges carry out in their courts. Second, judges are aware which of the lawyers who appear in front of them would make good judges. Not every good lawyer makes a good judge, but to be a good judge one has to be a good lawyer. The difference in being appointed a judge is that every person who will or has been appointed has a career as either a barrister or a solicitor behind them. Their role in those jobs gives a fairly good insight into what type of judge they will be. If we now have a situation where the advisory board is dominated by individuals who will look at candidates based on paper-based assessment, I do not think they will bring the same insight, knowledge and experience to the board that judges have. We want to ensure that people are appointed who are open-minded, fair, even, balanced and who do not believe a garda just because he is a garda but who decide cases on the basis of the evidence. My fear is that we are now moving to a situation in which we will have a process that is very much paper and interview based. I know many people who would look like they would make excellent judges on paper but would be a disaster if appointed.

Another ground upon which I believe this will not only damage the administration of justice but the authority of the Judiciary is the fact that this legislation requires the Chief Justice to sit on a committee while not chairing it. Could a situation be imagined in which a Member of this House suggested that the Taoiseach be on a Government committee but not chair it? There would be outrage expressed, not just by the Taoiseach's own party in government, but by all Members of this House. That is in effect what the Government is not asking but telling the Chief Justice to do. It is telling her to sit on that committee but that she will not chair it and that she must listen to and be instructed by the chairman of that committee. That is really insulting to the Judiciary.

I could go on for a long time but I wish to get to my second and third points.

My second point is that it will politicise the appointment of judges. The individuals who wish to apply for lay membership of the judicial appointments commission board will, in my opinion, be individuals with their own political agenda. We know that many people in this country have agendas and believe that the Judiciary is not strong enough on crime or is too harsh on crime. We know of people in this country who have agendas in respect of whether they are members of the pro-life lobby or the pro-choice lobby. We know some people believe we should have individuals on the board who are representative of victims of miscarriage of justice. All these arguments will have the effect that individuals with political agendas will apply and in my opinion will be able to get onto this judicial appointments commission.

There will be seven lay members. Former judges are excluded from applying to be members. So we are telling people such as Catherine McGuinness or other distinguished former judges, who would make excellent persons when it comes to advising as to who would be good judges that they should not and cannot apply as they are not wanted. The answer to the question as to why they cannot apply is they were judges and are contaminated. It is deeply offensive to retired judges who have served this country well over the years. I would have liked to have spent more time on that second point.

My final point is that the previous Government came to power in 2011 telling us that it was going to abolish quangos. One of the most straightforward jobs that exists in a statutory scheme is membership of the Judicial Appointments Advisory Board. About 20 people a year are nominated to judicial office. The board meets informally. It has a secretary. The members of the board meet in an office, they look at the applications and they apply names.

Under this legislation we will have not just a judicial appointments commission, but we will have the judicial appointments commission office and the judicial appointments commission director. There will be a mini-empire staffed by individuals who will spend lots of public money on trying to identify the best way for them to spend the public money on trying to identify people suitable for appointment. It is an astonishing waste of money and is wholly unnecessary. We are talking about recommending individuals based on curricula vitae that are submitted for about 20 jobs a year. It can be done very cheaply. It is at present being done very cheaply. Instead we are creating an enormous and unnecessary quango.

This is really bad legislation. Fianna Fáil will be opposing the legislation because we believe it is bad for the administration of justice and bad for the Irish public. It has not been carefully thought out. It is being promoted by one or two members of Government who really do not know what they are talking about.

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