Éamon Ó Cuív (Galway West, Fianna Fail) | Oireachtas source

It is important to look at what actually happens in the appointment of judges. As somebody who was in Cabinet for a considerable period of time, I am aware of the reality. The reality is not what is spun in the media, namely, that politicians put their pals into these positions. In the vast majority of cases many members of the Cabinet, particularly those who were not in the legal profession before politics, do not know the names that come before them. Under the present system, they get a long list of names and are told those are suitable. That, obviously, is flawed from an information point of view as were one appointing a board, for example, one would try to get some reason as to why those who were being proposed to one for appointment were suitable for the job. Therefore, the system is flawed because it does not give the Cabinet enough information.

We must preserve the absolute right of Cabinet to make a decision having followed a good process, not because it is in the Constitution but because it is right to be in the Constitution. In other words, on the one hand those who make decisions with a lack of information are not acting responsibly and the Cabinet has to act responsibly while on the other, the ultimate appointment of judges has to rest with those elected by the people.

As my colleague, Deputy Browne, stated earlier, a coterie of powerful people in this city would like all appointments to be made by a clique that we would never see and who we would never know and they want everything done by that clique. I checked one day by putting down a parliamentary question to every Department. I asked for the geographic location of all the members of all the boards of all the agencies under each Department and what became apparent was that a disproportionate number of those board members came from Dublin, not from the rest of the country.

I suspect that if I had seen those people's addresses on Google Maps, I would have found a very large number of dots between the south bank of the Liffey and Bray, in the most salubrious areas. No doubt, I would have found no member of any State board from some of the poorer parts of the Minister of State's constituency. Increasingly, in all the processes we are putting in place, we are promoting circumstances in which, in reality, a small group of people who know one another, mix in the same circles and come from the same class are obtaining more and more power unseen. I object to that. What democracy is about is saying the small person has the exact same vote on election day as the most important person, be it the President or a millionaire. That is right because it is what democracy is about. The only committee in this country elected by and answerable to all the people is the committee called Dáil Éireann, of which there is a sub-committee called the Government, which we elect democratically and openly and which the people can fire if they feel it has acted in an improper way. Therefore, we must guard with jealousy the constitutional right of that committee to be the final arbiter.

There is a certain deficiency that I accept. I know from having been in Cabinet that one got a list of names, big or small, and was told the individuals thereon had been checked and were all suitable. One looked at the list of names and did not know any of them. One did not have any recommendation or any cur síos as to why they were suitable or why some were more suitable than others. I do not know the stance of others of the National University of Ireland, NUI, candidates on the Seanad ballot paper. If one does not know them at all, one gets a bit of a blurb about them. If one knows someone and believes he or she is a good character, one will probably give him or her a high enough stroke because one knows what one is getting. Therefore, I accept there is a deficit of information given to the Cabinet on why one person is more suitable than another. The Government's Bill does not address this, however. It states three names will be given but there will not be any information on why the candidates believe they are suitable and why some might be more suitable than others. It shortens the list by comparison with the previous arrangement but it does not eliminate the difference.

May I address another challenge we have to face? As present, if a very good person who is appointed as a judge happens to have a relative in politics, it is very easy in our present system, because we have a small country, to point the finger and say, "Aha, wouldn't you know?". Again, our proposal, unlike that of the Government, deals with that issue. Where that charge is made under our proposal, one can say that, based on information given by someone who examines candidacy independently, it stands up that the candidate fits the criteria. People should not be put into jobs or fail to get a job because they happen, by birth, marriage or any other relationship one can think of, to be connected to a politician. We need a system that defends not only the person who might be appointed but also those who make the appointment. Under the Government's proposal, this does not happen.

Let me refer to the usual end-of-term madness that seems to arise in this House. At the end of a term, either by political direction or because the Civil Service suddenly acquires a massive amount of energy - I have seen both - legislation has to be rushed through as if the future of the country depended on it. I am sure the Minister of State got the Friday afternoon memo, and I am sure the Leas-Cheann Comhairle and Deputy Kelleher got a few in their time. The memo arrived on a Friday evening with a very nasty decision to be made very urgently because time had run out. When the memos arrived, I used always to get someone to ring the relevant section and find out when it got the file. If I learned it had it for six months, I would say I was going to hold it for six months. In the normal course of events, however, I normally signed off on a file on the same evening if I got it in good time. This Bill is the equivalent of the Friday evening memo. It is of no urgency and will not tackle the real problems that the real people are trying to deal with, including losing houses, social segregation in Dublin city, traffic congestion, the inability to buy a house for love or money, and homelessness. If the Government were rushing legislation today to try to deal with those issues, I could understand it, but it has been trying to rush a Bill that not one person in my constituency has raised in my clinic. Not one person has been pressing me about it because most people accept that no matter what human system, safeguards or processes one puts in place, there will in a large group of people be a few who are suboptimal. There is no human way of guarding against that, but most people accept two points, the first being that the vast majority of judges are good and that there are good appeals mechanisms within the system if a judge gives a decision that is flawed, and the second being that no matter what might be said about judges, they act independently. No Member of this House would ever talk to a judge about a judicial matter or try to interfere or influence him or her in any way.

I sincerely believe the Government should withdraw this Bill and enter proper dialogue on the best way of dealing with this issue. It does need to be dealt with but it is not of overwhelming urgency. It would be far better to do this right than to rush through a flawed Bill only to realise, having passed it, that it contains a major mistake. One of the most wrongful provisions in the Bill is such because of the position in which it is putting the Chief Justice. We must protect the status of positions like that, not because of the person but because of the office.

11 o’clock

Being Chief justice should mean that one is the leader in justice, in right and in standards. To say that the person the Cabinet will have picked because it believes he or she is the best, who under a proper system would have been recommended as being the best, should not chair the commission is demeaning of one of the highest constitutional offices in the land. I do not understand the reason somebody is proposing that. As has been pointed out here today, judges have to have legal training, but they are not practising lawyers; they are practising judges. The Chief Justice is not a practising lawyer but is a practising Chief Justice.

See this speech in context