Mick Wallace (Wexford, Independent) | Oireachtas source

There is no doubt that this is a very complex, intricate area, and listening to the variety of opinion in this House endorses that fact. This variety of opinion suggests that there should be more of an opportunity to debate this issue. I do not agree with how it is being rushed at the moment. The Joint Committee on Justice and Equality has been ridden roughshod over and it leaves much to be desired. The manner in which Deputy O'Callaghan's Bill was dealt with by not giving it the money message, and the way Deputy Daly's Coroners Bill has been sidelined in order to rush this through is not acceptable. There is a better way of doing things, and it is disappointing that the Government is not approaching this in a different way.

Judicial reform is required, but we could have approached the issue in a better way. In terms of what we could do, we should take a glance across the water at Scotland, England and Wales. The judicial appointments board in Scotland has a very comprehensive list of criteria to cover the notion of merit. A judge must have a good knowledge of the law and show skills and competence in the interpretation and application of the law; a thorough understanding of the theory and principles on which the law is based and an ability to analyse and explore legal problems creatively and imaginatively; excellent skills in an interpretative analysis of case law and statute law; excellent skills in identifying issues of fact and law; excellent skills in applying the relevant law to relevant fact; the personal characteristics of integrity, independence of mind and moral courage, fairness and impartiality; common sense; an understanding of people and society; a responsible attitude and sound temperament; courtesy and consideration; an ability to command respect and resilience; and be able to demonstrate a range of case management skills and communication skills. There are 17 criteria used to assess merit. It is a daunting challenge to meet all the criteria, but I wonder what sort of guidelines are to be used if this process comes into play here.

The Minister said that three nominees instead of seven is in line with best international practice. I point out that in Scotland, England and Wales they recommend one nominee. Reducing the number of nominees would make the selection process more independent and would have potential in terms of combating the influence of the Government party of the day. Previously, we had a situation where the Government received seven names from the board and even if the highest standards of selection on the basis of merit were adhered to, the Government could still select one of its own supporters from those names. Where are the terms of reference for the Minister for making the selection of the three names? Are we assuming that the Minister will have the wherewithal to make that selection? Even if the Minister has the wherewithal at this moment, how are we to know that in years to come he or she will have the capacity to make the proper decision?

The recent controversy over the appointment of Ms Justice Máire Whelan shows that the real problem of patronage lies in Cabinet rather than with the Judiciary, as Deputy O'Callaghan pointed out earlier. How can the Government pretend to remove political patronage from judicial appointments if it will not empower this new reforming body to make the real decisions on these appointments? By putting one nominee forward instead of three, it would reduce the powers of politicians over it, and the Government would have the option of refusing to accept the single nominee and asking the body to provide another.

There is much discussion about removing the influence of politicians in certain areas. The Police Authority is a very good example. It was said that this would de-politicise policing, but in fact the end result was that the Policing Authority, as has been proven in the past six months, is a creature of Government still and lacks the real independence that we hoped it would be given.

The terms for conducting the selection process for lay persons could be made more prescriptive. At present, the guidance is that the Public Appointments Service shall have regard to the desirability that the lay members of the commission will, among them, possess knowledge of and professional experience in as many as possible of the matter specified in subsection 7, this subsection being a well worded and comprehensive list of areas of knowledge of the law. At present, the position open for the lay members of the committee reads like a Jack-of-all-trades job description. Potentially someone may do this as they have been doing nothing else. If this is to be done properly, the structures and resources need to be put in place to ensure that the right people with the right expertise get the job, and that they will be vetted in such a manner that stands up to scrutiny down the line and that ensures that they can be removed. It is very important that a process is put in place where people can be removed from the board. We have a long history of the proliferation of State boards and bodies and a notable shortage of good people interested in these positions. We do not seem to have a sufficient pool of suitably qualified people, and we need to ensure that the proper resources are available to the Public Appointments Service for this very important task.

The England and Wales commissions were established in 2005. Both commissions put forward only one name to the justice Minister, who will invariably approves the recommendation or provides a reasoned request that a new process of appointment be engaged in. To protect further against any abuse of the process, parliament legislated for a judicial appointments and conduct ombudsman, responsible for auditing any complaints about the appointments process. There is no such appeals process in this current legislation, and this is complicated by the fact that the Minister ultimately makes the final selection of the three nominees put forward, which arguably means there is still too much political influence. The appointment of a lay person as chair of the commission is a positive development and has been welcomed by many in the legal profession, in particular, solicitors. They see this as an opportunity to break the monopoly of the Bar Council of Ireland. There are approximately 10,000 solicitors in the country and 1,500 barristers, but barristers make up 80% of the judges in the superior courts. Solicitors will see the lay chair as an opportunity to break that mould to some extent.

The fact that the only courts present on the commission are superior courts - the High Court, the Court of Appeal and the Supreme Court - means that it is not fully representative of the judicial profession given that it is the District and Circuit Courts which deal with the vast bulk of cases and where most judicial vacancies arise. As such, I propose that the Presidents of the District and Circuit Courts be added to the membership of the commission. If this ends up giving a slight majority to the legal professionals, it could be seen as a compromise for introducing the lay chair. It should be open for discussion.

The Bill is a step in the right direction, but if the aim of the Bill is to remove political patronage, or the perception of political patronage, from the judicial appointments process then it fails miserably.

The fact that the Attorney General will sit on the judicial appointments commission and at the Cabinet table means that he or she has a role in every stage of the judicial selection process in the recommendation and appointment of judges. This completely undermines the independence of the commission. Furthermore, as the Incorporated Law Society points out the Attorney General's role as a major purchaser of legal services in the State raises serious questions about conflict of interest.

There has been a breakdown of trust in the State in recent years and this and the previous Governments have presided over the big sell off of Irish land and property to vulture funds. The impact of this on how we supply housing in this country, on affordability and the rental market is very dramatic. It is very unfortunate that it was not better managed. Likewise, the Government is propping up a Garda Commissioner who has long proved unfit for purpose. The perception of political party patronage is damaging to the legitimacy of a democracy. The Government should be doing its best to remove this and the first step would be to make this body independent by removing the Attorney General, empowering it to make its own decisions and further reduce the influence of the government of the day on the decision making process.

See this speech in context