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

I am just quoting something that is in the public domain. He said that some people who would make excellent judges were "passed over" in favour of others who were not so well qualified. That is a real problem for the courts but, ultimately, the sign-off on appointments will still be a matter for the Government of the day. This Bill will change the procedure so that instead of receiving a list of seven candidates, a list of three will be now brought to the Government. In fact, as far back as 2013, we in Sinn Féin published a Bill with similar objectives on judicial appointments but, unfortunately, it was blocked.

We will seek some amendments to the Bill, especially in regard to the make-up of the lay aspects of the commission itself in order to attempt to address the potential for it to be occupied by former political appointees. We also want to see commitments to ongoing training to be included in the Bill. Our continued support for the Bill will be contingent on how those amendments are received.

It must be remembered that dealing with issues concerning appointments is only one sphere that has to be addressed. We would like to see the removal of members of the Judiciary, as well as regulation of the conduct of members of the Judiciary, addressed as a matter of urgency. We know it cannot be included in this Bill but, nevertheless, we do not want to wait for a crisis-type situation where a member of the Judiciary needs to be removed before dealing with the legislation.

There are no ethical guidelines for judges, who are not subject to the terms of the ethics Acts or codes of conduct for officeholders. There is no requirement for judges to file a register of declarable interests. In fact, they must comply with very little other than provide a tax clearance certificate before being appointed. There is no formal complaint mechanism for the public against a judge for alleged improper conduct. Even Mrs. Justice Susan Denham has said, in public discourse, that the failure to establish a judicial council is affecting Ireland's reputation internationally and is a matter of real concern. A judicial council was first proposed 20 years ago but successive Governments failed to progress it with the urgency it deserves. Following the report of the committee on judicial conduct and ethics in 2001, the then Chief Justice, Mr. Justice Ronan Keane, recommended that there should be an independent statutory based judicial council to regulate judicial conduct, ethics and remuneration. Interestingly, the panel that was suggested in that report to regulate conduct and ethics was proposed to have lay representation on it. The report was welcomed but of course it never went anywhere. It is the lack of monitoring of judicial conduct, along with how judges are appointed and removed - or not as the case may be - that feeds into the idea that the Judiciary and legal profession are somewhat untouchable.

We believe that any legislation of this nature should be completely in line with the UN Basic Principles on the Independence of the Judiciary, which dates from 1985, and the Bangalore draft code of judicial conduct, which was published in 2001, and we will table amendments to reflect that. We are lucky in this jurisdiction that the State is largely compliant with the UN principles, in particular in respect of the protection of judicial independence enshrined in the Constitution. Unfortunately, we are lacking when it comes to section 17 of the basic principles that stipulate:

A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

In reality, there are no complaints procedures in place, which adds further stress to the need for a judicial council Bill. The Judiciary is largely compliant with nearly all aspects of the Bangalore principles. However, value 1.2 of those principles states:

A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

Unfortunately, people are aware of the political affiliations of many judges who have been appointed, which contravenes the value outlined.

Given the historic context of judicial appointments in the State, we support the call for a lay majority and a lay chair as that is now the norm in international contexts. While Fianna Fáil may complain about the lay chairperson, it is the Government that will have the final say on the appointments process, as per the terms of the Constitution. I am open to correction on this point, but currently only two of 15 members of the Cabinet have any legal training and neither have practised as barristers. People complain about a commission which will have a lay majority, whose power is only to nominate individuals to be decided upon by the Cabinet, and the reason for the objection is that they may not necessarily have the expertise to decide who will make a good judge, yet we have a Cabinet with virtually no legal experience that will appoint those individuals.

When the Cabinet has responsibility for making the decisions, the latter is a bit hypocritical as an argument for opposing lay membership. The Cabinet does not even have to decide on the recommendations of the commission. It can go with its own individual. Considering that there is very little legal experience there, it highlights the inadequacies of the current situation. It is unlikely that Fianna Fáil went through the qualifications of the current Cabinet members before discussing this, but I did. Apart from the Minister, Deputy Flanagan who is a barrister by profession-----

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