Tommy Broughan (Dublin Bay North, Independent) | Oireachtas source

I am delighted to have a brief opportunity to speak on the Judicial Appointments Commission Bill. I welcome the general thrust of the Bill before us today, which provides for the establishment of a judicial appointments commission, but like many of the constituents I represent, I believe the process of the recent appointment of the former Attorney General, Ms Máire Whelan, to the Court of Appeal was grossly defective and unfair to other qualified and interested judges and lawyers. Once again, in this, as in so many other controversies, the Fine Gael Independents, led by the Minister, Deputy Ross, failed to uphold the public interest.

As I mentioned in a contribution on reform of the legal system in the previous Dáil, the legal system we inherited almost intact from the British in 1922 represented the most vested of vested interests whose key role was, and often is, to maintain the power and property structures of the wealthy elites who controlled our society and economy and whose dominance continues down to our own era. For example, the medieval division of the legal profession into solicitors and barristers and the control of legal education by the guilds representing these phony professional divisions have never been challenged by Fianna Fáil and Fine Gael-led Governments. The manner in which so many prominent politicians and party members with a legal background have ended up on the Bench in the decades since 1922 is also astonishing.

At the outset, I want to welcome section 64 of the Bill on the prohibition on canvassing, which in subsection (2) lays down that "An applicant shall not attempt, and shall not procure or counsel another to attempt, in either case whether directly or indirectly, to ... canvass, from any person involved in the process, support for the application of the applicant". The penalty for such canvassing or improperly influencing or interfering with the process of selection shall be on summary conviction a class A fine, but given allegations of canvassing over the years, perhaps that penalty should be much stiffer and could be looked at again.

When I was a member of the Committee of Public Accounts in this Oireachtas on two occasions, I often raised the outrageous cost of justice, the lack of accessibility to justice for huge cohorts of our population and the narrow, wealthy social strata from which lawyers and judges have traditionally come. I am afraid that the Judicial Appointments Commission Bill will do little to address the wider continuing serious problems with our judicial system, even if the selection of judges becomes slightly more transparent and democratic.

I acknowledge the impartial and excellent discharge of justice by so many judges over the years and, in particular, the skill and integrity with which judges and leading lawyers have led investigations of great scandals in our society, especially in the past 25 years.

Section 12 in Part 4 of the Bill provides for the breakdown of the 13 members of the judicial appointments commission. There have been mixed reactions to the number of lay members and the fact that the commission would have a lay chair. The equivalent commissions in England, Wales and Scotland are chaired by lay persons, but there is also an issue around the independence of the Attorney General given that that person would be a member of the Cabinet.

The Minister, Deputy Ross, has trumpeted the lay majority and lay chairperson, but in Part 3, sections 9 to 11, inclusive, have the Minister, Deputy Ross, and the Fine Gael Independents not buckled under pressure from Fine Gael and its cadre of supporters in the Law Library? Part 3 outlines the creation of the commission's appointment committees, which are a key element of the Bill, for the Supreme Court, the Court of Appeal, the High Court, the Circuit Court and the District Court. Each of these committees will have 11 members and while it will have a lay majority, the Chief Justice and the presidents of each of the divisions will clearly have a major role in selecting lawyers and judges for vacancies in each division. The Minister, Deputy Flanagan, reiterated in his contribution last night that the Chief Justice should be directly involved in the selection and recommendation of persons for appointment and that she and all the presidents will form part of the key decision making process in selecting and recommending persons to the relevant court. The Minister also reiterated that these relevant committees will actually perform the functions of the commission in the selection for each of those courts. In effect, the structure of those committees tends to water down what seemed to be the original premise of the Bill.

Section 7 in Part 2 provides for recommendations to be based on merit, but no definition of "merit" appears in the Bill. Another omission is a definition of "diversity" in the Bill. Section 7(2)(b) states "the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole". Why not insert in the Bill that the commission must collect and collate statistical information on applicants? The information could then be used to inform strategies on encouraging under-represented sections of society to consider a career path to the Judiciary. Recently, women became the majority gender among solicitors, which is a very welcome development, but that must be reflected in the Judiciary.

It is a pity we did not have the judicial council Bill to deal with first because we could have teased out some of the issues that affect us and about which our constituents at times feel so angry in terms of the discharge of justice in this country. The outpouring of public anger at the recent collapse of the Anglo Irish Bank trial was often summarised in the refrain many of us heard that there continues to be two systems of justice in this country.

With all those reservations, I recognise that the Judicial Appointments Commission Bill represents a tiny step forward in a more democratic and transparent judicial appointments system and for that reason, I will reluctantly support it.

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