Catherine Connolly (Galway West, Independent) | Oireachtas source

I welcome the opportunity to contribute to this debate. An essential ingredient of a properly-functioning democracy is an open and accountable system that allows for the appointment, promotion and transfer of judges based on merit. That such a system is still lacking in Ireland begs the question as to who was responsible for this. It is clear that the problem lies not with the Judiciary, which has been much lambasted in the Chamber. In fact, the Judiciary has repeatedly asked for the system to be changed. It has repeatedly pointed out that:

As a matter of principle, political allegiance should have no bearing on appointments to judicial office. Early acceptance of the principle is essential to the transformation of the appointments process ... It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system.

The system of judicial appointments in Ireland is by now demonstrably deficient, fails to meet international standards of best practice and must be reformed. In addition, the Irish Council for Civil Liberties, ICCL, has highlighted the need to establish clear and transparent merit-based selection criteria in consultation with relevant stakeholders including civil society. The Free Legal Advice Centre, FLAC, has highlighted the lack of transparency which over the years has given rise to fears that some of those appointed to judicial office may owe their appointment to their connections. We know that is true in at least a third of the appointments. International and European organisations, including the UN and the Council of Europe's anti-corruption group, have also raised concerns. It is worth noting that it has been pointed out that, once on the Bench, judges in Ireland enjoy much respect for being highly-qualified professionals with a high degree of integrity in their work and performance. However, the system is, rightly, perceived as being politicised.

If all of these groups - I have not given an exhaustive list – have continually asked for change, why has it not occurred? Indeed, how have we come to a situation in the Dáil where we now condemn the Judiciary? We are rushing through a deficient Bill, ostensibly as the result of another debacle in respect of the appointment or promotion of another Attorney General to higher office. This is being done because the narrative suits to deflect attention from the repeated failures on the part of successive Governments to take action. That lack of action was not accidental but, rather, reflects the strong stance of this and previous Governments of their wish, desire and stance to retain political patronage in the appointment of some judges, right up to the appointment of the Attorney General recently to a higher court. It is a system that was ensconced in secrecy and totally bypassed the existing legislation.

Each Government, including the current one, has failed to introduce what is a lot more urgent, namely, a judicial council or other appropriate mechanism to deal with judges who act inappropriately or misbehave. The absence of any mechanism other than impeachment means that there is currently no means by which matters of judicial misconduct which fall short of stated misbehaviour may be dealt with, except in respect of the District Court.

Given this background, and the continued reluctance of each Government to legislate, I can, to a certain extent, understand why the Minister, Deputy Ross, came forward with his proposals to introduce a more accountable system. However, the introduction of the Bill in this rushed manner is entirely unacceptable and would appear to be the result of a deficient compromise so that the Minister had something when he walked out the door of the Cabinet room and the Government got something in appointing the Attorney General. It is a poor substitute for what is really necessary.

I have serious concerns about the Bill. Circuit Court and District Court judges are not represented.

11 o’clock

There is no clear rationale why the Chief Justice should not be chair. I have no problem with lay people being on the commission. It is a very good addition. Nor do I have a problem with a majority of lay people, but I have a problem understanding the reason the Chief Justice should not be chair. Diversity is not defined. Best practice has been bandied about. For example, the Minister has chosen to cite England, Wales and Scotland. Northern Ireland has a different system. The Chief Justice is in charge, and over 70% of all Commonwealth countries have the heads of the court as chairs.

I welcome that diversity has been enshrined in the Bill. However, that is simply with regard to appointment of judges. Section 7.7 on diversity and gender has been removed as being important regarding nominations to the commission. There has been no cost analysis of the current system as opposed to the new system. It would seem a new quango has been brought in with no business case being made or no examining of the cost of the existing system and a comparison being made. The Minister has not examined the existing system which is deficient. It has produced annual reports. It has continuously, for example, made a recommendation in regard to a medical examination for somebody who has been appointed, but that has never happened. The Minister has continued with the system in this Bill whereby the Attorney General is on the commission in spite of the fact that the Irish Council for Civil Liberties and Free Legal Advice Centres, FLAC, among others, have asked that this not go ahead.

In addition, diversity has been much championed here by Members on behalf of this Bill. There is no way we will get diversity in the Judiciary unless we look at those going into the legal schools and into the universities. In England, a judicial diversity panel was set up seven years ago to advise the government, specific recommendations were made and they acted on those. Nothing like that has happened here. The Government still retains the power, as is right, under the Constitution. However, it is an illusion that we will remove Government patronage. There is no necessity here to outline precisely why the Government might not go with the nomination that is coming forward and the Attorney General is on the commission.

While I welcome in principle that merit is being enshrined into the law as the way forward for promoting and appointing judges, this is, mar a dúirt mé, sop in áit na scuaibe. Tá gá le díospóireacht oscailte chruinn sa Dáil agus gan dul ar aghaidh sa bhealach seo - ag cur an Bille tríd an Dáil ró-sciobtha mar gheall ar gheallúint atá déanta ag an Rialtas don Aire. Go raibh míle maith agat a Chathaoirligh.

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