Mary Butler (Waterford, Fianna Fail) | Oireachtas source

While Fianna Fáil fully believes in the need to reform the judicial appointment process, the Government's Bill is deeply flawed. Fianna Fáil has proposed legislation on establishing a judicial appointments commission that would be independent of Government and make recommendations to same based on an assessment of the merits of applicants for judicial office. We must ensure that the best and most suitable and qualified people end up on the Bench. This is an important process and it cannot be rushed. I welcome that the Oireachtas Committee on Justice and Equality will not facilitate the Government in ramming the Bill through in haste. Like most other Bills, it will take its due course.

We entrust senior judges on the Bench to make life and death and responsible decisions and to rule effectively and impartially using the evidence that is available to them. They need to know the Constitution. They should be impartial, patient, shrewd and fair minded. We need the best and most suitably qualified people on the Bench. Will this Bill deliver the best person for the job? No.

I sat in the Chamber yesterday and listened as the Minister for Transport, Tourism and Sport, Deputy Ross, spoke at length about this Bill, in respect of which he has held the Government to ransom. He said that "political interference ... should be reduced to a minimum" and that he wanted to see an end to the system of "political colour" influencing appointments. I wondered whether this could possibly have been the same Minister who, having spoken about the Judiciary for numerous years and taken the high moral ground on all issues relating to judicial appointments, sat at the Cabinet table and allowed the appointment and elevation of the Attorney General to the Court of Appeal while she was also sitting at the Cabinet table. I wish to state categorically that I am referring to the process and not the individual. It is unheard of that the applicant would be present for Ministers' discussion of a new role and paid position. Was it even discussed? Was the Cabinet presented with a fait accompli? We will never know, as Cabinet confidentiality reached new heights after that particular debacle. I cannot understand how this was allowed to happen.

The Minister, Deputy Ross, lost all credibility in respect of his Judicial Appointments Commission Bill. This was the highest level of cronyism, which he wants to be removed from politics. It is funny when a person's own area or constituency is affected. I await with bated breath the announcement on the five other Garda stations now that Stepaside will be reopened. Will it be one for every Independent Alliance Deputy in the audience? Time will tell.

This situation casts a slur on the last Cabinet meeting of the former Taoiseach, Deputy Enda Kenny. For a man whom I have respected, his role ended disappointingly and on a low note.

Our judicial appointments process needs to be reformed to ensure people are appointed to judicial office based solely on merit. For this reason, Fianna Fáil proposed its legislation on establishing a judicial appointments commission whose recommendations would be based on an independent assessment of the merits of applicants for judicial office. The Government's proposed commission will not allow for such an independent process. Among its faults, the Government's Bill will require the Chief Justice to sit on a commission that she will not chair. This is indicative of the disrespect the Government has for the Judiciary. A proposal that the Taoiseach would sit on a committee but not be its chairman would rightly be dismissed out of hand by the Government.

The Bill excludes the presidents of the Circuit and District courts from full membership of the commission. It also recommends that the majority of the commission should be lay members, namely, persons who are neither judges nor lawyers. This grouping of judges and lawyers in the same category by the Government ignores the fact that judges are not members of the legal profession. That they were previously members is not a basis for assuming that judges and lawyers, if in a majority, would have a negative influence on the commission. It would be considered remarkable if surgeons in hospitals were selected by a panel, the majority of whose members had never carried out surgery or even worked in a hospital.

The Bill proposes that the three persons recommended by the commission will not be ranked in order of merit. The failure to do so defeats the entire purpose of having a commission that seeks to recommend the best candidate. The Fianna Fáil Bill establishes a judicial appointments commission to recommend to the Government the names of individuals who it believes would be the most suitable, based on merit, to be judges. For each position, it would recommend three people. The Government scheme has the same provision. Under our Bill, however, the three would be ranked as Nos. 1, 2 and 3 in order of merit. In no way does this offend the constitutional prerogative that rests with the Cabinet. Under neither scheme must the Cabinet opt for anyone on the list. However, there is benefit in a body with expertise telling the Cabinet who it believes are the three best people in a certain order.

It is important that there be a complete separation from the political process. Another difference between the Minister's scheme and the Fianna Fáil Bill is that we want to have the recommending body completely separate from the political process in order that there would not be people who were part of the political process on the recommending body. For this reason, we believe the Government's scheme to be inappropriate, given that the Attorney General will be on the recommending body. Names will come to the judicial appointments commission, the Attorney General will be a part of that commission when the names are being considered, and those three names will then be nominated to the Cabinet where the Attorney General also sits. That does not achieve the objective of separating the political process from the initial recommending process. The political process will ultimately decide who is appointed, so the recommending process should be protected. There will be replication and infiltration between the two bodies if the Attorney General is on both.

Another main substantive difference between the two proposals is that nothing really changes under the Government's Bill. The new recommending body will nominate three people whose names will go to the Cabinet. The Cabinet will then operate in the same way it does now. It must consider the three names. If it does not like them, it can say that the person whom it selects was not recommended by the commission. Under our Bill, there would be a greater hurdle for the Government to overcome. The Government would get the names of Nos. 1, 2 and 3. If it did not select or recommend any of those for appointment, it would need to give a reasoned decision for that. This is an important point, given that three judges applied for the position the Attorney General received when she was elevated to the Court of Appeal. We did not receive answers to that question last week. Were the three people who applied for the job even considered or discussed at Cabinet? Once again, however, Cabinet confidentiality knew no bounds.

One matter on which Fianna Fáil agrees, and on which we have changed our position since Second Stage of our Bill, is the Minister's proposal that District Court judges should be eligible for appointment to the High Court. That is fair. If one is a lawyer of 20 years' standing, one can be made a District Court judge, but if one becomes a District Court judge after 20 years, one then becomes ineligible for appointment to the High Court. It would be unfair for that situation to apply.

I will turn to the exclusion of former judges. The Government's Bill includes a categorisation of laypersons, the effect of which is to merge people who hold judicial office and people who were or are practising lawyers. It is inappropriate to merge them and it simply plays to the agenda of the Minister, Deputy Ross. Why is it that, under the Government's scheme, former judges are precluded from being on this recommending body? If one is trying to identify someone who would have a good idea of what it takes to be a judge, one would think that a former judge would be suitable to fulfil the role. Under the Minister's scheme, though, that is not permitted.

While preparing what I was going to say today, I rang my constituency office in Waterford and asked the girls there whether anyone had contacted me this week about the Judicial Appointments Commission Bill 2017. The answer was-----

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