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

I welcome the opportunity to speak on the Bill. As has been previously outlined, we will support its passage to Committee Stage. However, we are conscious of the criticisms of this Bill, and I wish to address them in this contribution and outline the rationale for supporting the Bill at this stage.

While we are in favour of this Bill, it is not unqualified support. We agree with Members of the House who have criticised the way in which the Bill has been handled. Confidence in the justice system is contingent on a judiciary which is free from political control or political or other bias. Not only must society have a judiciary that is free from bias, but it must also be free from the appearance of bias. It is essential that we have an independent and impartial judiciary that is representative of the community it serves. A truly representative judiciary would enhance confidence in the judicial system.

It is our view that future judicial appointments should be drawn from a wider pool of qualified candidates that is fully representative of the community in order to eradicate the corrosive and unaccountable system of patronage previously in operation. We are not here this evening to criticise members of the Judiciary - far from it. Our courts are populated by many people with great legal minds who do an excellent job on a daily basis. However, it would be naive to believe some of the commentary that has taken place surrounding the Bill.

We are expected to believe that there is not now, nor has there ever been, any system of political patronage within this jurisdiction. We know that is absolutely not the case. We are not saying that those who are in place cannot do their jobs, but the Bill is concerned with the process of how they get there in the first place. I agree with Deputy O'Callaghan in saying that judges who take that oath are impartial and independent. However, the Bill does not deal with people who are currently judges. We are dealing with the process of appointing judges in the first place. For anyone who thinks that this is a left-wing or left-leaning view, I ask them to consider why we are discussing this in the first place.

There must be a fair and accountable appointment process for the Judiciary which is representative of the public interest. However, there must also be fairness in respect of who gets to nominate members for appointment in the first place. As I have pointed out previously, in the appointment of judicial officeholders there should be no discrimination on any of the prohibited grounds. Indeed, there should be a policy of affirmative action to increase judicial diversity. However, it is beyond the scope of the Bill. The principle of diversity should extend to the scope of those who are lay members of the new commission. Much has been said about how lay members could not possibly be qualified to appoint members to the Judiciary. Aside from this being best international practice, I draw Members' attention to section 15 of the Bill. I will come back to that later in my contribution.

The Council of Europe's Venice Commission has previously recommended the election of a chairperson from among lay members of an appointments body to "bring about a balance between the necessary independence of the chair and the need to avoid possible corporatist tendencies within the council". I reiterate a European body made that recommendation.

There are lay members of judicial appointments bodies in England and Wales, and in Scotland. This is not an abnormal proposal being put forward by the Government. Indeed the Bar Council's submission to the Oireachtas Joint Committee on Justice and Equality in 2016 actually welcomed the participation of lay members in a new appointments process. Its main concern was whether the chair of the body should be a judge.

In April of this year, Nicola Gordon was appointed as lay chairing member to the Judicial Appointments Board for Scotland and the sky has not fallen in on Edinburgh to date.

From listening to some of the commentary one could be forgiven for thinking any random person will have the potential to apply and be considered for lay membership of the commission, which is not the case. Section 15 clearly outlines that the Public Appointments Service will have control of the process of appointing lay members and outlines an extensive range of criteria that need to be met for this to happen. A person must not only be fit and proper but also the Public Appointments Service must have regard to their corporate governance experience, their qualifications, training and expertise, and their knowledge and experience of a range of matters set out in section 15(7), including the operation of the courts; the provision of supports to victims; human rights; equality; processes and procedures for making appointments to public office or senior positions in the public or private sectors; administration qualifications; previous board membership; and governance and professional qualities.

Despite the protests of some Members of this House, this is not particularly radical legislation. The criteria required under section 15 ensure that a smaller group of people than originally expected will actually qualify to sit on the commission as a lay member. I share some concerns with Deputy O'Callaghan on this next point. The people who will qualify under the current criteria will in all likelihood be people who have already served on State boards, commissions and so on.

Many of them will be political appointees and will have gained the expertise needed to apply for a position on the commission. The Public Appointments Service is impartial but it can only proceed with candidates according to the legislation that is implemented in this House. It is for that reason we in Sinn Féin have talked about broadening it out and ensuring that persons who may not be from the traditional background of having progressed through their career aided or assisted by political friends would be considered to sit on the commission on the basis of their ability.

While this Bill is a good start in reforming the systemic problems of cronyism and nepotism that are rife in the senior echelons of Irish society, it is not the radical shake-up that Fianna Fáil make it out to be. The only reason Fianna Fáil think the Bill is radical is because it is so rare for anyone to attempt to amend even slightly the systemic privileging of a particular group of people in Irish society.

Part 8 sets out quite comprehensively the way in which members of the board - lay and judicial - can assess merit, but merit is still the criterion for selection. That is one of the changes outlined by the Minister in his speech from the general scheme of the Bill to the published version of it. Merit is recognised as a stand-alone criterion. That is only subject to an objective that has been included on gender equality. As we all know too well from last week's discussions, the Government is not, and will continue to be not obliged to select from the list given to it. That is the constitutional position. While Fianna Fáil might want to paint the picture that the change will up-end the courts and that we will find ourselves awash with incompetents on the judicial benches, that analysis does not really tally with the reality. No concerns were expressed by Fianna Fáil or indeed Fine Gael for that matter, when it came to the quality of the associates of those parties being rewarded for their loyalty with judicial positions in the past. At least one third of the country's judges have personal or political links to political parties before they were appointed to the Bench. In his contribution Deputy O'Callaghan admitted that there are people who were appointed to the Bench because of their political connections and others were not appointed to the Bench because they did not have those political connections. I do not think it is fair of Fianna Fáil or anyone else to paint us or anyone else who supports the Bill as disrespectful to the Bench when one of the most senior judges in the State - Mr. Justice Peter Kelly, went on the record quite vocally to proclaim how appointments to the Supreme Court were "purely political"-----

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