Brendan Howlin (Wexford, Labour) | Oireachtas source

It is recognised by everybody in this House, and everybody outside, that the chief architect of the Bill is the Minister for Transport, Tourism and Sport, Deputy Ross. The Minister does not come to too many debates here and his presence tonight underscores his proprietorial role in respect of this legislation. In fairness, he has openly set this out as his prime, if not only, objective in office from the outset of this Administration.

The Minister, Deputy Ross, has spoken and written on these issues before. He co-wrote a book called The Untouchables. I understand that the title is borrowed from the autobiography of Eliot Ness, the US federal agent who took on Al Capone in Prohibition-era Chicago. I know there has been public disquiet about politicians using their positions in the House to make disparaging comparisons between named individuals but I do not believe it would be controversial - not even with the Minister - to say that Shane Ross is no Eliot Ness. In the Brian De Palma film "The Untouchables", the protagonists carried sawn-off shotguns. The Minister, Deputy Ross, still favours the old-fashioned blunderbuss. In his blunderbuss assault on official Ireland, insiders and cronyism, he devoted a chapter of his book to judges. In truth, that is the only reason we are here today debating this legislation.

The Minister wrote another chapter about senior civil servants. He wrote about how mandarins remained in their posts, or were even promoted, post-crash, how they always looked after each other and so on. What does the Minister now propose? Effectively, he proposes that in order to reform the Judiciary, judges should in future be appointed on the advice of a majority of individuals selected, not short-listed, by the Public Appointments Service, PAS.

There has been much comment on how the Bill will reduce both political and judicial input into appointments but there has been very little attention at all given to will substitute for that political and judicial input. I yield to no one in the House in my admiration for the Civil Service. I worked constructively with the PAS in my years as the Minister with responsibility for the public service and its reform. The PAS has undoubtedly contributed to the modernisation and development of the Civil Service in recent years. That is not to say, however, that the Civil Service has no faults. It has a unique hierarchical structure and management style. It has, still, an ingrained silo mentality. The senior Civil Service is at its best when promoting and defending the State, its agencies and their interests. Equally, it is at its most intransigent when resisting any proposals for change that might impact on its own sphere of influence. The Civil Service still shelters Departments and organisations that work in their own best interests, which they identify - often inappropriately - as the interests of the common good.

In our rush to depoliticise the judicial appointments process, we are being asked to put a very significant part of that process - the decision makers - into the hands of a body consisting of five senior career civil or public servants, including two departmental assistant secretaries general, plus the former chair of the Civil Service Commissioners for Northern Ireland and three personnel consultants.

I do not see why the senior Civil Service should have any role in appointing judges, even at the remove of appointing those who will, in effect, make the appointments. Everyone in management knows that if one cannot make the appointment oneself, the next best thing is to be able to appoint those who will do so.

We need to be realistic about two things. First, the State in its various guises is by far the biggest consumer of judicial services. While politicians come and go, the senior civil servants who comprise the permanent administration are at the receiving end of adverse judgments and rebukes in our courts on a daily basis. Appointments are overturned, schemes are upset and spending plans are thrown into disarray by specific court decisions. Those who think politicians are sometimes inappropriate in their comments should hear what civil servants sometimes have to say about judges. Second, the major differences on the Bench are not between judges appointed by different Governments. I have been around for a long time. We all know there is no pattern of Fine Gael or Fianna Fáil judges defending their respective teams. I defy anyone to tell me there is such a pattern. There is no major difference on the Bench between those of a liberal or conservative disposition. Some differences might be noticed, but it is not a pattern. Our system is not like the American one, in which a Supreme Court with a conservative or liberal disposition can be created. That has never been the pattern here, regardless of the former political associations of judges. The major difference are between judges who are disposed to toeing the line and those who are not and between judges who know their place from the perspective of the executive branch of government and those who do not.

Judges have two basic tasks. First, they must do justice in disputes between individuals. This point was very well made by Deputy O'Callaghan. Second, and perhaps more important, they must curtail the power of the State and its agencies by confining public bodies to the rule of law. In short, they are required to bell the cat. Judges retain such a high degree of public confidence among our national institutions because they take on other institutions in the interests of the man and woman in the street. The interests of the permanent administration are not always the same as the public interest. The Civil Service is the cat that judges are sometimes required to bell. We should not be surprised if the cat objects. There is a northside-southside divide on this issue. On this side of the river, many people in the administration do not like judges who rock the boat. I suggest that in the interests of justice, the boat needs to be rocked every so often. That is one part of the reason I do not believe senior civil servants who have been hand-picked to shape our future Civil Service should have the same sort of say - in fact, an even greater say - in shaping our Judiciary.

The real concept of institutional bias is much more relevant than the notion of cronyism which has been suggested by the Minister, Deputy Ross, and which I discount. I do not believe people whose professional careers are devoted to the agencies of the State should have a major say in determining who gets to choose who sits on the judges' benches in the future. While the Government might have a right to go outside the recommendations in appointing a judge under this proposal, it will have no discretion in appointing the PAS nominees for this advisory role. The legislation provides quite specifically that PAS will determine who will be on the selecting panel for judges. The senior officials at the top of the Civil Service already have a major say in appointing their own successors through the top level appointments committee. I note that one of the objectives of this Bill is to secure diversity among members of the Judiciary. I do not believe the structures being proposed will achieve that objective. If there is to be diversity within the Judiciary, there must be diversity within the Bar. My experience in recent times is that there is not a great deal of such diversity. Many people will say that it has diminished, rather than increased, in recent times.

I do not think the Minister, Deputy Ross, has thought through or explained why one of his chief bugbears should be reformed by being reshaped in the image of another of his bugbears. This was not his initial proposal on this matter. When in opposition in 2013, he wanted to establish a judicial appointments council to recommend judicial candidates. He proposed that an Oireachtas committee should consider such recommendations before nominating judges. Bizarrely, he wanted the Constitution to be amended to stipulate that no judge or practising lawyer could have a role in assessing the qualifications of candidates or in recommending their suitability. He also wanted the Constitution to be amended to require the Oireachtas committee making these nominations to have a permanent Opposition majority. At that time, Deputy Ross wanted those who were to have a role in selecting judges to know nothing at all about the law or lawyers, or to have lost a general election. My colleague, Deputy Penrose, said last October that this was "daftness on stilts". He continued:

The Minister's gadfly pesterings clearly entertained a readership in the leafy suburbs, but he has contributed nothing serious to this debate. In Opposition he was a noisy distraction. In Government he has become an empty space.

Subsequent events have reinforced the accuracy of that judgment.

The solution is obvious enough. In fairness, most of it was embodied in the Bill published by Deputy O'Callaghan, which we welcomed last October. A judicial appointments commission is needed to recommend and rank three individuals for each judicial vacancy based on merit. Deputy O'Callaghan's Bill also proposed that if the Government does not nominate someone from the recommended list, it must publish a reasoned written decision for not doing so. This is stronger than the current provision and I agree with it. Deputy O’Callaghan’s Bill, which the Government has not yet voted down, provides for a commission with a well-thought-out mixture of competencies. As well as the Chief Justice and the presidents of the other courts, nominees of the Citizens Information Board, the Higher Education Authority, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission, the Free Legal Advice Centres, the Law Society and the Bar Council would be represented on the commission. Deputy O'Callaghan's Bill also provides for gender balance on the commission. My party and I would be more than happy to see a reform enacted along these lines.

We need to consider other issues, one of which arises from the fact that a judicial career is embarked on after a career in legal practice. I fully support this feature of our system because it enhances judicial independence. Our judges are not pre-schooled before appointment. The State cannot, for financial reasons, and should not compete against the market in the pay it offers to judges. As I did when I was in government, I support the notion that we should have arrangements to allow people who are well into their legal practice to apply for and become judges. It has been suggested that an informal practice allows interested serving judges to write to the Attorney General, who in turn communicates this information to the Minister for Justice and Equality. I have not heard any commentary on is why this procedure is informal rather than formal in nature.

The reason is that our 1995 judicial appointments legislation does not even contemplate the possibility of serving judges canvassing the Government for promotion to vacancies in higher courts. There are very good policy reasons for that.

Judicial independence is an obligation as well as a privilege. Our compact with the judges is that they must expect to serve until retirement in the posts to which they were appointed. They apply for a post and are expected to serve until retirement, rather than see it as a career path. We do not have a career-based Judiciary and we do not have a promotions-based system of advancement through the hierarchy of the courts. These are important safeguards of judicial independence. There could be nothing more destructive of independence than to create a promotion-based career path for judges, depending on how the powers-that-be think they are performing on the Bench.

I would certainly enable an appointments commission to make recommendations and approaches. There would be nothing wrong with a commission saying directly to a serving judge, or indeed to a practitioner who had yet to apply, "We believe you should be appointed to this vacancy". I would not, however, create any avenue to enable serving judges to apply for promotion based on them selling their own record in office to the Executive and I would stipulate that even informal canvassing for promotion by a judge should automatically disqualify. The Government's current Bill proposes a rush to the opposite extreme. It proposes to make a career-minded, promotion-seeking Judiciary the norm. Specifically, it proposes that two years' service on the lowest court, the District Court, would qualify one to apply for promotion to any court up to and including the Supreme Court. I do not believe that having a Bench of District Court judges living in the hope and expectation of promotion to higher courts would do anything for judicial independence or for the quality of justice in that court.

We do not want or need career-obsessed judges delivering their verdicts with one cautious eye on a leader board maintained by any agency of State. The Minister for Tourism, Transport and Sport, Deputy Ross, is engaged in the same sort of anti-elitist rhetoric as the Brexit campaigner Michael Gove, who urged voters to ignore the economists and said, "People in this country have had enough of experts". It is an attempt at a gut-appeal, conspiracy-theory argument, without any evidence to support it. It is populist bombast, pure and simple. I and my party will oppose it and we will seek instead real and sustainable reforms. I hope the Government will be open to this in the interests of the Judiciary and, more importantly, in the interests of the people.

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