Willie O'Dea (Limerick City, Fianna Fail) | Oireachtas source

First, Fianna Fáil is strongly in favour of a change in the manner in which judges are appointed. Second, we are strongly in favour of a significant lay element in that process. Last night, the Minister, Deputy Flanagan, extolled JAAB and pointed to the significant differences it had made. I disagree with that because I am not aware of any difference that was made by JAAB. I agree with the remarks made by the Minister, Deputy Ross, in that regard. We are ad idemin that regard and the Minister is on the other side. I do agree with the Minister, Deputy Flanagan, when he extols the record of the Irish Judiciary, which was repeated here today by the Minister, Deputy Ross. Despite the faulty appointments system, we have managed to produce a Judiciary that has zealously and jealously guarded its independence, has acted as a third pillar of our democracy and has produced people of exceptional talent. However, the past is no guarantee for the future. It is right and proper that we should try to devise a system or insert into the current system of judicial appointments a process that will ensure that people are not appointed because of political or personal connections but are appointed solely on merit. There is difficulty in doing this because of the provisions in the Constitution which gives the Government and the President on the advice of the Government exclusive and final control of the appointment of judges.

It is precisely because we believe that this system should be changed that Fianna Fáil instructed Deputy O'Callaghan, the Fianna Fáil spokesperson on justice, to prepare legislation to do that. The legislation has been prepared - Deputy O'Callaghan gave a outline of it last night - and it has been widely acclaimed. The Government's legislation compares poorly. It is bad legislation. In response to the Minister, Deputy Ross, as somebody who has been returned successfully to this House on 12 or 13 occasions by my constituents and who hopes to be elected again, I have no fear of ordinary people.

The Minister, Deputy Ross, despite what he said in his contribution today has in the past accused the Judiciary of being massively resistant to change. In 2014, a committee chaired by the Chief Justice was highly critical of what was termed the current demonstrably deficient appointments system. In addition, the Chief Justice, Ms Justice Susan Denham has repeatedly called for a judicial council to establish best practice for the education, support and training of judges and for a structure to deal with complaints about judges. The Minister, Deputy Ross, must know the Chief Justice was not indulging in a solo run when she said that. She would have consulted widely with her colleagues, such that the view of the Bench is that the current system of appointments is demonstrably unfair and there is need for a system for the education and training of judges and a mechanism whereby complaints can be made about members of the Judiciary. I cannot get my head around how a body that is of such a view could be properly accused of being massively resistant to change.

It is demonstrably and patently false. In so far as the Bill is concerned, I note what the Minister, Deputy Ross, said about the position of the Chief Justice. As Deputy O'Callaghan said last night, establishing a Cabinet sub-committee without the Taoiseach as its chairman would be considered completely unacceptable. The Judiciary, as a body, is the third pillar of our democracy. Since its foundation, it has vindicated the rights and defended the liberties of our people. The Chief Justice sits at the pinnacle of that system. It is an insult to the office of Chief Justice that he or she should have to sit on a committee dealing with the suitability of individuals for appointment to the Bench in any position other than that of the chairman. It is an insult that he or she would have to defer to a third party as chairman.

Under Article 14 of our Constitution, the Chief Justice is one of the three people selected to stand in in the event of the death or incapacity of the President, who is constitutionally the principal person in this State. I find this reprehensible and I agree with Mrs. Justice Catherine McGuinness who said it is a kick in the teeth for the Chief Justice. I am no fawning admirer of the Judiciary. As the Minister, Deputy Ross, said, the appointments system has thrown up a handful of inappropriate appointments. Judges are not infallible; they make mistakes. I have not been shy in taking the judges on, criticising them and debating and arguing with them in public when they have made what I consider to be mistakes. Nevertheless, this is question of respect for the office. When Harry Truman unexpectedly became President of the United States on the death of Franklin Roosevelt, he was asked how he coped, coming from a humble background, with all of the deference, the bowing, the scraping, the saluting, the red carpets and so forth that he received as President. He pointed out very simply that people were not bowing and scraping and deferring to Harry Truman, the individual. They were respecting the office. It is the office that we respect here. I find the provisions in the section of this Bill that provide that the Chief Justice will not be chairman of the commission or of any of the committees, and will have to defer instead to somebody else, is an insult to the office of Chief Justice.

The central question here is the question of a lay majority. What is the magic in a lay majority? Are we afraid of the ordinary citizens of this country? The Association of Judges of Ireland reluctantly commented on this Bill, despite its reluctance to get involved in public controversy, because it thought its potential downside to be so great. It said that no proper rationale has been put forward for the idea of a lay majority. It sounds hip and democratic and it is nakedly populist. There is a lay majority and to hell with experts. I think Michael Gove said to hell with experts during the Brexit campaign. Call me old-fashioned and conservative but I genuinely think there is no better-placed person than a judge to decide who would make a good judge.

The Association of Judges of Ireland said: "It is hard to imagine any other walk of life in which the majority of those involved in an appointments process would be required to come from outside the ranks of those serving in the area to which the appointments are being made." Let us take about the examples of a surgeon, a scientist or an engineer. We are setting up a system where we insist that the people who make up the majority on the board, and who ultimately decide who is fit for the job, are people with no connection whatsoever to that job. The point made by the Association of Judges of Ireland is a very serious one. I did not hear a response to it either from the Minister, Deputy Ross, or from the Minister for Justice and Equality but I hope that it will be properly dealt with before the debate concludes.

We are talking about a lay majority of ordinary citizens. The term "ordinary citizen" is subject to very wide definition. Who is this lay majority going to be? We know that they will be very powerful people because out of a body of 13 individuals, seven will be lay people. Lay people in this instance is taken to mean non-legal people. I think even a member of the clergy could qualify as a lay person under this Bill. Who are these people going to be? The Bill is not very enlightening on this matter. It tells us who they will not be. It goes out of its way to tell us lawyers and even former lawyers are absolutely excluded. Anyone with the temerity to have practiced law would have to be out of that profession for 15 years before qualifying as a lay person under the terms of this Bill. It takes 15 years for the taint to be removed. I have known of people convicted of murder to be out again after ten or 12 years. Having paid their debt to society, they can walk the streets free and clear without a stain on their character. It will take 15 years to remove the taint of having been a lawyer.

Who will these people be then? Under section 15 of the Bill we are told that these people must have all sorts of qualifications, that they must have knowledge of commerce and so on and that they must have experience of membership of boards. There is, in fact, a danger in that, as Deputy Jonathan O'Brien rightly pointed out.

I recall a reference to qualifications - I do not know whether it is legislation or written into the Constitution - for people running for the Seanad. It states they must have expertise in commerce, in agriculture or whatever else. Nobody in this House can tell me other than that is almost more in the breach than in the observance. The simple reality is that the Public Appointments Service can only pick from those who put themselves forward, regardless of the expertise they have or do not have. I do not know what sort of people will put themselves forward. Having spent a lot of time in this House and having met many people, I can only think of very few who would want to put themselves forward for membership of the judicial appointments commission. I know a few, incidentally, but they are the very people I would rather see kept miles away from it.

People who apply for organisations like this tend to have a political agenda, as Deputy O'Callaghan rightly said. It might be pro-life, it might be pro-choice, it might be hardline law and order or it might be soft liberalism. There is no shortage of agendas out there, let us make no mistake about that.

In the future, will people applying for the Judiciary have to tailor their CVs or practice performing at interview in such as way as to satisfy the particular agenda, beliefs or prejudices of those individuals? Everybody will know who they are and where they stand. The system proposed by Deputy O'Callaghan in which the lay membership, be it in the majority or the minority, is picked from a number of reputable organisations, such as the Competition and Consumer Protection Commission or the Irish Human Rights and Equality Commission, would surely be infinitely preferable.

If the seven lay members out of the 13 get together in a block, they will have the majority and the voting power to put forward their nominee or nominees. This will damage the administration of justice in two ways. First, it will make it more rather than less likely that there will be more unsuitable appointments to the Bench. Second, many good and able barristers who would make excellent judges will not be prepared to submit themselves to an appointment system like this one which might require them to tailor their CVs and adapt their performance at interview, etc.

Why is the Attorney General in the filtration process? Are we to take the Government at its word when it says its objective is keep politics out of this as far as possible? The Attorney General is on the filtration committee of the appointments commission. The names of the three people selected go forward to the Cabinet are again faced by the Attorney General. If Deputy Jonathan O'Brien was correct in what he said last night about the legal expertise or lack thereof in the current Cabinet, and I have no doubt that he was, then the Attorney General will have enormous powers. If the intention is to keep all this as far away from politics as possible, why then have the Attorney General on both the final selection committee and the filtration committee? I hope Deputy Jonathan O'Brien will bear that in mind when he is drafting his amendment.

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