Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

The Social Democrats will not be opposing the Bill. We recognise and welcome it as a very small step towards reform of the legal system. However, it is only a small step and it is hard to know what all of the hoo-ha inside and outside the House is about. I would have thought that the days of self-regulation were over, as they should be. The idea of setting up a body with a lay majority and a lay chairperson to make recommendations in respect of those who may be suitable to serve as judges seems absolutely sensible and I see no difficulty with it. Insofar as it goes, it is to be welcomed. However, one must look at the circumstances which led to its being brought forward. Although it has been talked about for a significant period, it has been rushed through in recent weeks in an attempt to mollify the Minister, Deputy Shane Ross, and ensure he would maintain his silence on the mess surrounding the appointment of Ms Justice Máire Whelan and just in case he was not sufficiently satisfied in getting the Garda station in Stepaside reopened. It was importan, therefore, to have something further to offer him. To deliver before the summer recess what was seen as one of his pet projects was no way to produce legislation or do business. Then again, he can be difficult when he acts up. The impetus for the rush in bringing forward the legislation was to ensure he would be kept on board, although I am not sure where he would have to go to as both himself and the Minister of State at the Department of Justice and Equality, Deputy Finian McGrath, seem so comfortable in the Cabinet and are enjoying life so much that they are hardly going to walk off and cause a general election.

Be that as it may, there is no doubt that the fast production of this legislation was designed to distract attention from the mess made in the appointment of Ms Justice Máire Whelan to the Court of Appeal. This time last week, that issue was being discussed in the House and Opposition Members felt there was a need for answers and explanations to be provided. The Government line, of course, was that Members should not look back but rather concentrate on what it was proposing to do this week. In many ways, the Bill was a distraction from the issues at the heart of last week's discussions. As yet, there have been no answers to many of the serious questions that arose in the handling of the appointment of Ms Justice Máire Whelan.

The legislation has been hailed as a major reform, but it is nothing of the sort. It has been said it will bring more diversity to the Judiciary and the legal system. One could say that is the case in theory. However, if one looks at the pool from which judges can be drawn, there is no doubt that it is elitist. It is not until the legal system in general is reformed and that legal practitioners who are more reflective of the population as a whole can be put in place that there will be the potential to appoint judges who will bring greater balance and better reflect the diversity of the population.

There is no doubt but that the legal profession is extremely elitist. It is a closed shop. That is the nature of it in many ways, and that needs to be addressed. It has been identified as a closed shop for many years, but successive Governments have refused to grasp the nettle and provide the kind of reform that was required. This is despite the fact the troika identified the Judiciary and the medical profession as areas which required radical reform. That has not really happened. The former Minister for Justice and Equality, Alan Shatter, talked often about reforming the system, but when it came to it he introduced precious few reforms.

The King's Inns has a complete monopoly on the training of barristers. That is unacceptable. There is no reason that should not be opened up. Why are our universities not providing training for barristers? Why is it that an ability to eat large numbers of four course dinners is somehow regarded as establishing one's qualifications for serving at the Bar? Why is the system designed in such a way that an individual, whether he or she wants to qualify as a solicitor or barrister, has to have substantial funding behind him or her in order to survive as an apprentice or be indentured and be able to survive from his or her own resources without having a normal income? There are many archaic practices around the selection and training and qualifications of the legal profession and they need to be blown wide open. It needs to be opened up to people in general, including school leavers who want to have a career in the legal profession. It should be open to everyone who has the skills and can meet the qualifications in terms of points in his or her leaving certificate. It should all be based on a transparent, accountable system, which it unfortunately is not at the moment. If one is training the people who are supposed to be defending the law in this kind of clouded manner, where there is very little transparency, it does not augur well for the quality of the people who will be practising the legal profession. That is why it needs to be reformed, just as the Garda needs to be reformed. Anyone who is involved in defending or enforcing the law should be trained to the highest possible level and in the most transparent and accountable way, but that does not apply to the legal profession in general.

In terms of qualifications for serving on the Bench, I do not know why we do not have a system whereby people who are interested in becoming judges have to study a course to qualify for service on the Bench and why there is no academic examination of their abilities and their knowledge of the law. It seems like a straightforward thing. Most people have to have qualifications to qualify for a particular career, and I do not see why judges should not have to have them. Equally, I do not see why continual professional development is not a key part of the ongoing training of judges. Too often we come across situations where judges do not seem to be familiar with the law. This is true especially in terms of recent legislation that has been passed. I investigated why it is that judges do not use the many provisions that are available to them under the Children's Act to deal with anti-social activity involving minors and so on. There are many provisions available to them that are not used at all. Several of the measures available had never been used or were only used on a handful of occasions. There are issues of judges keeping up to date with their skills and knowledge. It should be addressed, and we should look at this like any other important profession that requires ongoing professional development, and indeed that requires a level of oversight. I am not suggesting that anyone in this House could perform that oversight, but there is a need for a greater level of oversight within the Judiciary itself. There is no doubt that there are a number of judges who leave something to be desired, in particular at the level of the District Court. They seem to be untouchable. We read about comments they make that are completely off the wall, things that are outrageously outdated, sexist or out of touch. There is a tendency to laugh at these things, but it is actually quite serious. Some of our judges are running District Courts like their own private fiefdom, as if they are not answerable to anybody. The reality is that they are not. There is a need for greater oversight within the Judiciary itself in order to ensure acceptable levels of performance of their jobs.

It is only when we start to demystify and democratise the legal profession that we will get people serving in it, at solicitor, barrister or judge level, who are more in touch with the real world and the kinds of issues people are running up against on a regular basis. The difficulties for victims are an example. Our judges in the main are drawn from a very elitist milieu and are very protected. They are generally private schoolboys and schoolgirls, and very often we have situations where they are dealing with issues that they have never come across in their own private lives and it may be beyond their ken or experience. Very often the responses from judges indicate that they really do not know the kind of world that is being presented to them in the cases they are dealing with. That is common in the context of gangland crime and community crime, such as serious anti-social activity. In these instances there does not seem to be an appreciation of the kind of torture that communities are being put through. There is very little appreciation of that because in the main judges are far removed from ordinary people's lives. That is a problem. There is no doubt about that. Judges need to be more in touch with the real world and with what life is like for many communities. There is a substantial cultural gulf there that is not healthy for a Judiciary, and is a product of the kind of elitist, protected professional sector that we should have blown apart long ago.

The Bill is a welcome step in so far as it goes. It only goes a very short way along the road, and so much more needs to be done if we are to have diversity within the profession. I have no difficulty with the idea of the commission being made up of 13 members, the majority of who are lay members, with a chairman who is also a lay member. It should have happened a long time ago. It is interesting that the lay majority has now been welcomed in some quarters, in particular by the Law Society. That was a welcome move on its part. We also have to be aware that the proposed system is not especially unusual relative to the rest of the EU, where the majority of systems propose judges by way of a council for the judiciary, or another independent body. While they may not have a lay majority, a lay chairman who is independent of the Judiciary is in place in England and in Wales where the chairman of the judicial appointments commission is a surgeon by profession.

There is no reason that someone needs a legal qualification in order to have good judgment of the kind of qualities and character that are required to be a good judge. Furthermore, the Venice Commission of the Council of Europe recommended the election of a chairperson from among the non-judicial members of the appointments body to bring about a balance between the necessary independence of the chairperson and the need to avoid possible corporatist tendencies within the council. That is a legitimate concern. While the Bill aims to encourage recommendations that are based on merit, merit is not defined by the Bill, rather it tasks the procedures committee with establishing the criteria based on a set of parameters set by the Bill. One has to wonder if this is the best approach or if a more prescriptive methodology should be adopted, perhaps in line with the five criteria for what constitutes merit used by the Judicial Appointments Commission of England and Wales when assessing candidates. The Social Democrats will not oppose the Bill as far it goes but it is a very small start and much more needs to be done to democratise and open up the legal profession.

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