Thomas Byrne (Meath East, Fianna Fail) | Oireachtas source

It is undignified for the Chief Justice of Ireland to sit on a committee with someone else chairing it and it is disrespectful of the way our constitutional system of checks and balances works. The Chief Justice oversees the judicial system and has one vote in the Supreme Court, with nominal charge of the system, but the Government will relegate her - it is Chief Justice Denham at the moment - to simply one member of a committee with a lay chairperson.

It is very worrying that the Public Appointments Service will now indirectly appoint judges. Deputy Ó Cuív has spoken very well on this matter. The Government is simply replacing one elite with another. The Minister, Deputy Ross, speaks of a Government elite deciding on judicial appointments, but at least that elite is elected by the public. It is answerable to the public and can be kicked out of office over judicial appointments. Governments have fallen on judicial appointments over the years, so they can be matters of political controversy.

It is not simply about packing a board. The Minister Deputy Shane Ross wants to pack it in another way using the Public Appointments Service. We should be deeply interested in who is a member of the Supreme Court or the Court of Appeal. We should take note of whom Governments appoint or the Public Appointments Service recommends because these institutions of State rightly have so much power. They can make law, break it if it is deemed to be unconstitutional and can interpret it, so it is very important we know the direction of these people. We do not need to know how they will decide in individual cases, but it is in the public interest for some analysis to be done of who is appointed to the Judiciary because they can change the direction of the country. That is the way our system works, so it is very important to get the right people in the system. I am not convinced this Bill will do it.

The number of lay people proposed by this Bill is extraordinary but, as Deputy Ó Cuív said earlier, it will not mean someone from the Aran Islands will be appointed to the judicial appointments commission. The Public Appointments Service will just create a new elite, mostly from Dublin and mostly from one part of Dublin. Deputy Ó Cuív has the figures to prove this is happening with other appointments. A new elite is being formed that is unelected and unaccountable. We are contracting these things out to other people, but they socialise and mix together. These people speak at conferences and in the media and have their influences and networks, but the only influence and network in this House should be in accordance with the Constitution, which states that it is the Government that appoints the Judiciary in a fair and transparent way. I do not believe this legislation does that.

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Simply put, those who know the people who would be good judges and could give those names to the Government are not allowed to be on the appointments commission. The legislation which Fianna Fáil has put forward was prepared by Deputy O'Callaghan. It is a disgrace that the Government has refused to issue a money message for that legislation for no reason other than that it wants to stall the legislation on the instructions of the Minister, Deputy Ross. The Fianna Fáil Bill recognises that within the Judiciary and the legal profession there are those who can analyse people's particular talents and skills and then present that analysis to the Government in the form of ranked candidates, which is very important in order to allow the Government to tell who is the best candidate who deserves appointment in the view of the judicial appointments commission as proposed by Fianna Fáil. Ultimately, the Government would then make a final decision. That is not available under the Bill proposed today.

The most we can ask for at this point is for passage of the Bill to be paused and that the Government think very seriously about the Judiciary, the nature of our constitutional system and the alliances the Government is building in order to get this Bill passed. Those alliances are not just with Sinn Féin, which is very important, but also with the sole Independent who is really fighting for the Bill. The Government backbenchers who were not preferred for ministerial office are telling the real story. That is where the truth comes out. Some backbenchers feel more free to speak their minds than their colleagues who, now that they have been appointed to ministerial office, and I am referring to junior Ministers rather than Deputy Flanagan, will not speak out on this issue. However, I presume that those recently elevated to office were previously of a mind with their colleagues who have spoken out on this issue. I congratulate those who have spoken out because they, when they go back to their constituencies, voters and the ordinary, decent members of Fine Gael, have found that people are aghast that this Bill is a priority in view of the fact that only last week the Government showed that when needs must, it does not comply with the existing rules. This will continue to be the case. The unholy alliances that have been formed and the rushing through of this legislation are a disgrace.

There is much else on which the House could be working. In terms of education, people have been waiting over a year for the Technological Universities Bill 2015, while the Education (Admission to Schools) Bill 2016 is devoid of any substance because the baptism barrier issue has not been addressed and the Bill is hardly worth the paper it is written on. That Bill has also been awaited for a year. There has been a substantial amendment to the Bill in regard to special needs which has added to its value and I am grateful for that. These are just some of the issues in the area of education and skills. There are many other areas with which the Dáil could be dealing if this controversial Bill were not being forced through. The Bill could be considered over a longer period of time and the best of both it and the Bill proposed by Fianna Fáil could be taken. The fundamental issue raised by Fianna Fáil Bill is that the Chief Justice should chair the appointments body, as has been similarly proposed by Fine Gael backbenchers. Surely there is a meeting of minds in this regard and it should be possible to do so. Fianna Fáil would work with that and that is what the production of legislation is about.

I attended the Select Committee on Education and Skills for six or seven hours yesterday while dealing with the Education (Admission to Schools) Bill 2016. I pay tribute to the Minister for Education and Skills, Deputy Bruton in that regard. Because the Government does not have sufficient numbers of Deputies, he has to take the views of the Opposition on board or risk losing a vote on the Bill and thereby put into legislation a feature that either he does not want or his officials may think completely unworkable. However, he has taken a very constructive approach and has even withdrawn some of his amendments with which the Opposition Deputies were not particularly happy and will revert to us on them before Report Stage. That was a brilliant example of new politics in terms of the fundamental job of this House, which is making legislation and creating better laws.

Under the previous Government and former Governments involving Fianna Fáil in which I remember serving as a backbencher, as I am sure the Ceann Comhairle also does, there was often a dismissive attitude if backbenchers put forward views different to those of the all-powerful Minister. That has changed for the better because of the composition of the House. This is the opportunity for the Minister for Justice and Equality, Deputy Flanagan, to shine in embracing new politics and coming up with a workable solution to which all Members could sign up. What could be better than the entire House coming up with an agreed approach on this issue? That is what should happen in regard to judicial appointments rather than one Minister forcing his will on a party that is lining up with another party that should know better than to start discussing the Judiciary. The House should be working towards an agreed approach. I was grateful to see the signals from Deputies Deering and Farrell. Deputy Deering has said that he will not vote for the Bill unless it is changed. I presume their point of view is feeding into the discussions they have with the Minister, any text messages on the issue that are being sent by Members, or the WhatsApp groups there are in Fine Gael. It is a positive sign that those Deputies can speak out. Fianna Fáil will work with the Government if it is willing to amend the Bill, in particular in regard to the position of the Chief Justice and the composition of the appointments commission. There are good things in both this Bill and that proposed by Fianna Fáil. The good thing about the Government Bill is that it proposes reform. Fianna Fáil does not agree with much of its detail and the Bill it proposes is a serious effort to address this issue. However, there is plenty of time to deal with them.

I was uncomfortable when the Judiciary began speaking out on this issue. I am not used to it and would not open my mouth one way or the other about the court case that was mentioned earlier. Whether a person is found guilty or not in a court case is no business of Members; it is entirely for the Judiciary. In the same way, legislation is the business of the House and Members must ensure it is constitutional, although the Supreme Court has the ultimate say on constitutionality and can interfere in that regard. I was a little uncomfortable with the comments of the Judiciary this week in regard to the legislation. That said, the fact that such commentary was so unprecedented shows the seriousness of the issue. This is not about the self-preservation of some kind of grubby system. As I have said , it is replacing one system with another. It is very difficult to get the system right because it involves a branch of government that can decide on laws. That members of the Judiciary have spoken out on the issue should give pause to the Minister. While I do not know him very well, I have dealt with the Minister on various issues over the past ten years and sat with him on the justice committee. I am sure that the comments of the Judiciary gave him pause for thought this week. The Minister's comments on this issue were not as sharp as those of the Taoiseach, who pointed out the importance of the separation of powers and criticised the Judiciary.

I hope I give the Minister pause for thought by saying that the future of the Judiciary and its membership should not be decided by the Minister, Deputy Ross, and supported by Sinn Féin and Fine Gael working together. That is not what should happen. All Members should work together on this issue. Fianna Fáil are willing to do so. We have shown that by producing legislation dealing with this issue. The best possible outcome on this issue should be sought. There is no need to rush it. The Government cannot deliver the legislation for Deputy Ross because it does not have sufficient numbers to do so. He needs to be told that. I presume that the only commitment Fine Gael can give to Deputy Ross is that it will bring forward the legislation. It has no control over a vote on the legislation. I do not know if it will pass. It is possible it will not. It will face a hard battle on Committee Stage as the Government does not have a majority on the Select Committee on Justice and Equality. We will wait and see what happens at that committee. Its make-up is interesting. I have no doubt that my colleagues on it have every intention of working very closely with other committee members, including those from Fine Gael, to achieve the best possible outcome. That is where this must happen. If this Bill gets to Committee Stage, I have no doubt that Deputy Flanagan will be able to sit around a table at that committee with his Fine Gael colleagues, Deputy O'Callaghan and two Deputies representing Independents4Change who have a strong interest in justice matters - out of the glare of this debate and all the politics - and work out a good solution on this issue. I urge the Government to step back a little and tell Deputy Ross that the best it can do is to bring the Bill to Committee Stage.

I would like to see the entire House come together on this issue. If it is to be Deputy Ross versus the remainder of the House, that does not really matter. If the House were to come together on this issue, it would send a signal that the Judiciary is a branch of government that Members respect and want to see the best people appointed to and that Members recognise that the importance of this matter is such that it should not be subject of political debate. I therefore ask the Government to hold back and to think of the alliances it is making on this issue. They are not conducive to the making of good laws, nor are they good for the future of the Judiciary.

Tá mé chun críochnú ansin. Tá sé tábhachtach go bhfuil gach rud pléite againn maidir leis an mBille seo. Measaim go bhfuil deis againn agus deis ag an Rialtas, deis atá á ofráil ag Fianna Fáil, obair le chéile chun na nithe is fearr den dá thaobh a chur le chéile ionas go mbeadh an Dáil agus an tOireachtas ag labhairt le haon ghuth ar an ábhar tábhachtach seo faoi bhráinse agus craobh den Rialtas seo maidir le ceapacháin breithimh. Tá sé an-tábhachtach go n-oibreoimid le chéile agus nach mbeidh dhá pháirtí amháin ag obair le chéile chun toil Aire nó Teachta amháin a chur i bhfeidhm. Níl hé sin an slí cheart le deileáil le seo. Caithfimid dul níos moille agus an rud is fearr a dhéanamh don tír seachas do Bhaill Dháil Éireann amháin.

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