Thomas Pringle (Donegal, Independent) | Oireachtas source

It has been baffling and quite embarrassing the way issues relating to this Bill have been played out both inside and outside this House. I stress that if there is such a sense of urgency to reform the judicial appointments system, why has it only taken place after the Taoiseach and the Government appointed the former Attorney General to the Court of Appeal? Much has been made of the fact that this Bill will take the politics out of the appointment of judges, but the reason it is coming forward is purely political. It is coming forward with such a sense of urgency to appease the junior partners in the coalition Government.

Fianna Fáil had a similar Bill in committee which the Government killed off, so to speak, by the use of the money message because it was not in its interests, again for purely political reasons. It was also because the Bill could have stolen the Minister, Deputy Shane Ross's, thunder and his reason for being. If the Government was mature and proper, it would have joined with Fianna Fáil and allowed the Minister, Deputy Ross, and Deputy O'Callaghan to move the Bill through Committee Stage and we could have reached this point far quicker without the sense of urgency and without any opposition in the Dáil.

The Dáil has been unfairly blamed for the slow progress of Bills being passed. However, Fine Gael is obstructing the progress of Bills while at the same time fast-tracking the particular Bill we are debating today. That shows it is not new politics that is at fault here but the inability of the Government to maintain the integrity of the legislative process because it does not have the courage to engage in democratic debate.

My colleague, Deputy Catherine Connolly, in her contribution to the debate on the Bill, rightly said that all of this is an illusion. It is an illusion that the Government is serious about reform, an illusion that politics will finally be taken out of the equation in judicial appointments and an illusion that this reform will adequately filter down to address the grave inequalities and elitism plaguing the rest of the judicial system.

Even if this Bill gets through the House, and it might not as it is possible the justice committee will use its procedures to stall it and not have it passed before the summer recess, the Government still retains the power to appoint as a judge whoever it wishes. In fact, the Government could essentially bypass the new judicial appointments commission if it does not like the three recommended names put forward by the commission because that power is protected within the Constitution. It would require a referendum before that is ever changed and since we already have a Citizens’ Assembly tasked with debating the need for certain referendums, we have missed that boat.

How can we take politics out of the process when the Attorney General, which is a political appointment, will sit on the new commission and where no rationale is given for the recommendation of candidates in the text of the Bill? The Bill is becoming more and more reflective of the farcical political process at play between the coalition and Fianna Fáil.

The Bill provides for the commission to be made up of a lay chairperson and a majority of lay members. I note the commentary focusing on lay people in the appointments process and what is essentially a fear some seem to have of lay people in general. It is as if we are terrified of anyone outside the inner circle of the elite having a say in what is in essence an institution that upholds the Constitution of the people’s Republic. The people are the final arbitrators regarding the Constitution, so surely the people should be able to have a say in who interprets and implements that Constitution.

Earlier in the week, I listened with amusement to retired judges discuss on a radio programme how we could not have lay people being in a majority on the new commission and putting forward names for selection. The serving judges know all the applicants and they believe they are best placed to make a recommendation, but I do not believe the Judicial Appointments Advisory Board has ever made a recommendation. We hear that it has put forward seven, eight, ten and, in some cases, as many as 20 names. That shows that those involved in the existing system are incapable of offending any of its elite members in that they do not want to choose one name over another to put forward as a person who is best placed for the job. The process of putting forward three names still allows the political process to choose the person on whom they want to bestow patronage.

The retired judges said that in no other system would it be expected that people who were not intimately involved in the actual job would put forward names. I cannot think of any other job application process in this country or in the world where three, seven or ten people's names are put forward as being good enough to do the job. Any application and interview process results in the person who is best qualified for the job being appointed. That is not a sleight on anybody else who applied for the job. It just means that at that particular time they were not the best qualified persons. Every ordinary mortal in the country has to go through that process to get a job, but we are told it is not right to expect judges or those in the legal profession to go through that process. That is wrong.

This commission should put forward one name and say that of all the candidates it has this person is the one we believe is the most suitable for the position at this time. It should put it up to the political process and allow the political process appoint the person recommended by the commission.

If ordinary citizens are trusted as jurors to make very important decisions on the guilt or innocence of people before the courts, which perhaps might destroy their lives, and nobody questions the jury system, why are we questioning the role of ordinary citizens now? The Medical Council has a lay majority as do other regulatory bodies for different sectors. I agree with the sentiment that no regulatory bodies should be self-regulating or self-appointing.

The Judicial Council Bill, which was only published in recent weeks, should be dealt with and a judicial council put in place before this Bill progresses as it will provide a mechanism for the investigation of complaints against judges and enable the preparation of draft guidelines concerning judicial conduct and ethics. That should be part of the process of deciding whether a candidate is suitable for a particular job and if that code of conduct and ethics is in place, the proposed candidates can be compared in that regard.

Surely this culture needs to be established before we bring in a new process to appoint judges. The commission must also be accountable and take heed of the ethical guidelines as set out by the judicial council. It is clear there is no co-ordinated or concerted effort to bring about reform in the Judiciary, despite this issue dominating the political career of the Minister, Deputy Shane Ross.

Ultimately, we need to focus on the diversity of the sector, not just between lay people and professionals but within the pool of professionals themselves. We need to foster diversity within the law profession by encouraging people of all classes, gender and ethnicity to take up law. That will mean reforming the way people can enter law school and significantly reducing the cost of getting a qualification, which is prohibitive. The nepotistic and patronage culture inherent in both the Law Society and the Bar Council are further prohibitive in terms of those already practising, particularly for women in the sector.

Unfortunately, the Bill as it stands will not address this issue, particularly as section 7 of the heads of Bill has been removed from the text of this Bill. That section would have ensured that the Public Appointments Service and the commission must

Fostering diversity starts at the very beginning - in our society. I have tried on two occasions to have passed an economic, social and cultural rights Bill in the Dáil, which would enshrine the rights to housing, health and education in the Constitution. That would have been a basis by which we could foster equality among all our citizens and ensure that class, gender and ethnicity are no longer barriers to employment or even to accessing our justice system, such as the provision of free legal aid. It is important that we change our society to ensure we bring about more diversity in the legal profession and, subsequently, in the judicial profession.

It cannot go unsaid that the cost of access to the justice system is still an outstanding issue about which the Government could care less. There does not seem to be a sense of urgency to address this, yet if the Government was serious about reform, it would have started with more genuine measures, for example, increasing access to free legal aid for people who cannot afford to access the justice system, rather than playing a political game to appease its coalition partners.

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