Billy Kelleher (Cork North Central, Fianna Fail) | Oireachtas source

I welcome the opportunity to speak on this Bill. It is disappointing that we are not speaking in a more unified voice on this legislation, which in a way is important, because we are talking about appointments to the Judiciary and given that an earlier Bill, published by Deputy O'Callaghan, addressed many of the issues that were of concern regarding the appointment of judges.

Two issues are being mixed up in this debate. One is the issue of the appointment of judges and the other is how judges act after appointment. Very few Members of this House have claimed that our judges have acted inappropriately once appointed, that they would be still politically motivated or that they would be partisan or would make decisions for political reasons. During my time in this House and during my lifetime as a citizen, I have found that the members of the Judiciary, by and large, have behaved impeccably in the context of their interpretation of the Constitution and the discharging of their duties in the various courts on a daily basis from the District Court right up to the Supreme Court. Many of the major decisions that have been made in the Supreme Court have caused headaches for time to time for Governments that may have appointed those particular people. I certainly believe that the impartiality and the independence of the Judiciary is fully intact, even though the system of appointment is flawed. That is an important point to put on the record.

In any analysis done and any comparisons made between various common law jurisdictions and those without common law across the world, Ireland ranks very favourably in terms of the independence and impartiality of the Judiciary. It is one of the key components in ensuring that any democratic country functions and citizens' individual rights are protected and upheld, that laws are scrutinised by the higher courts and that a Constitution is protected and upheld as well. That is important for the rights of citizens right through to commercial rights, copyright, research and development and in respect of international investment and mobility. When consideration is given to locating in Ireland, the independence of the Judiciary is considered. Therefore, the impartiality of our Judiciary cannot be questioned. I have heard very few Deputies in this House, of all political colours and none, question the impartiality of its members.

Therefore, the point at issue goes back to the original matter of the appointment process. There is no doubt it is flawed because, as has been pointed out, there is a better chance possibly of being appointed to the Bench if one is of a political persuasion. Equally, if one is of the wrong political persuasion at a particular time, one may not get appointed to the Bench. A person who had previously been involved in politics could find himself or herself not being able to be appointed, even though he or she may have eminent qualifications because of a political association, or, otherwise, he or she is being appointed because of a political association. Equally, I do not think in a country of our size where many people have been and are involved in politics, that it should either be an impediment or an impetus to one being appointed. That said, there is a need to put in place a process that is more transparent and brings forward names of people of merit and substance to Cabinet for appointment to the Judiciary.

There are many aspects to assessing an applicant's ability to be a judge and we should not have box-ticking paper exercise. There needs to be a robust interviewing process. There also needs to be an assessment of the broad range of skills required for a person to sit on a Bench of any court, namely, fairness, humanity, knowledge of the law, of the Constitution and of society and the challenges facing it. All these elements must be brought into play when assessing the suitability and merit of a person who has made an application to become a member of the Bench.

In that context, this Bill, as proposed, is flawed in a number of ways. Perhaps I can be accused of being partisan because Deputy O'Callaghan and I are both members of the same party, but I believe the Bill he proposed provides for a fairer assessment of how to assess the merits of a person making an application to become a member of the Judiciary.

Ultimately, the Government - unless we change the Constitution - will always have the overriding responsibility in appointing a member of the Judiciary. That is clear and evident in our Constitution and it has served us well, as Deputy Ó Cuív pointed out, in the context that this Parliament is elected by the people and Government is elected by this Parliament. Therefore, there is accountability and answerability and those members will have to stand by the decisions they make at some stage either to this Parliament or, ultimately, to the people during a general election. There are checks and balances on the broader decision-making process at Cabinet.

A major problem for Cabinet under the current process - it will even be worse under this Bill being proposed by the Minister, Deputy Ross, and sponsored by the Fine Gael Minister for Justice and Equality - is that reasons are not given as to the suitability of those who are proposed to Government for consideration, other than a list of the names being handed to Cabinet for it to make an adjudication thereon. The process will not give the reasons those people are suitable or a varying scale of their suitability and quality. Many times judges have been appointed to the Bench where nobody in the Cabinet would have been familiar with the individual. We must have a robust system if the members of Cabinet are to appoint judges through this system and where their hands are tied in making any other decision in that context because of this proposed legislation. We must have a robust system of scrutiny to assess the merits of the various applications, distil them down and present the various names to Cabinet and the reasons those people are suitable. That is very important. Otherwise, the Government will be appointing members without any knowledge as to why those people have been recommended other than the fact that they have been recommended. That is not good enough if we are passing legislation that sends out a message that there is a robust system in place to assess the suitability of the recommendation to Government to appoint members of the Judiciary.

The Minister, Deputy Ross, has been on a personal crusade on this issue for a long time. In advance of being elected to Dáil Éireann, he was previously a Member of the Seanad and he also wrote articles that appeared on the back of the Sunday Independenton a regular basis. He would have shouted from the high heavens about cronyism, sweetheart deals, pork barrel politics, grubby political parties and all that flows from that. Since he was elected to the Dáil, but more importantly since he was appointed to Government, he has not exactly exonerated himself from engaging in pork barrel politics. Rather, he has been very much to the fore of it in getting his nose stuck well into the trough by giving out constituency goodies, namely, the reopening of Stepaside Garda station. He was so anxious, enthused and excited to inform his constituents that it was to be reopened that on the day Máire Whelan was appointed to the Court of Appeal, he sat stum and silent at Cabinet and refused to open his mouth when at the very least, the decision that was being made was questionable. I am not questioning the individual who was appointed but the system and the process was very questionable. What is more questionable is the fact that the Minister, Deputy Ross, was in such a hurry to stand outside Stepaside Garda station with a banner espousing his pork barrel politics, that he had not time to disapprove of the appointment and point out that the process should have gone through the Judicial Advisory Appointments Board and that people should have applied in the normal course of events. He believes that judicial appointments and cronyism had been at the centre of all the ills of the State for many years, yet when he had a chance to stop something like this happening, he had not the time, energy, inclination or the wit. Whatever he had, I know one thing for sure, which is he was in a fierce hurry to go to Stepaside to hold up a banner to announce that Stepaside Garda station was being reopened because he insisted on it at Cabinet.

I listened to the debate. I was in the House for some of the contributions, which were interesting. Deputy O'Brien made very valid points. He spoke in support of the Bill, but conditionally. Deputies O'Callaghan, O'Dea and many others made very positive contributions. Deputy Tóibín opened his contribution by scathingly attacking the Fianna Fáil Party for its appointments to the Judiciary over the past 50 years. He more or less said that all of the ills of society are due to Fianna Fáil and its appointment of judges to the Bench. I went back to my office and checked the various appointments that Fianna Fáil made over the past 50 years. Many of them were of no note whatsoever and left no lasting impression on the Bench, but the individuals involved did their job diligently. Some were the finest legal minds and, subsequently, very wise judges who made very profound decisions. By and large, they did their duty and were appointed by Fianna Fáil Governments, under the Constitution, in accordance with the law at the time. When they were appointed, they upheld the Constitution and worked within the law.

I then checked the appointments made by the Sinn Féin Party to see what judicial appointment it had made over the past 50 years. Of course, it ran a parallel system of justice at the time. I could not find the name of any person it appointed to its benches. I know it had systems of justice in place. Last week, I was accused by Deputy Adams of having a brass neck because I am a member of the Fianna Fáil Party. My face and my brass neck are available for public inspection at all times. The brass neck and face of Sinn Féin were not always available to the public when it dispensed justice. That is an important point. I cannot stand in the Chamber on a continuous basis and be lectured by a party that had very questionable appointments to its judicial process. The only person I found who was appointed to the judicial process by Sinn Féin was Freddie Scappaticci, one of the finest dispensers of justice we have seen this country. Young boys were taken down laneways and alleyways and had their kneecaps shot and their elbows beaten in with bars. That was the justice that was dispensed.

I can stand here and say that those judges appointed by Fianna Fáil Governments were appointed in accordance with the Constitution and the law of the time. Their primary motivation when they took up their positions was to uphold the Constitution and stand by the law. I cannot accept lectures from Deputies Adams or Tóibín about what Fianna Fáil did or should have done with regard to appointments to the Judiciary. By and large, our appointments were for the right reasons. People may sometimes have had political associations. However, let us be clear. They may sometimes have had political associations with other political parties but they were still appointed by Fianna Fáil-led Governments.

The brass neck and face of Sinn Féin was not always available to the public when it dispensed justice. That is an important point because I cannot stand in the Chamber and be consistently lectured by a party that had very questionable appointment to its judicial process. The only person I found was appointed to the judicial process by Sinn Fein was Freddie Scappaticci , one of the finest dispensers of justice we have seen in this country. Young boys were taken down lane ways and alleyways, and had their kneecaps shot and their elbows evening with Boris. That was the justice that was dispensed. I can stand in the House and say that any judge appointed by the Fianna Fail Governments were appointed in accordance with the constitution and law of the day. Their primary motivation when they took the bench was to uphold the Constitution and stand by the law. I cannot accept lecturers from Deputy Adams or to been about what Fianna Fail did or should have done with regard to appointments to the Judiciary. By and large, our appointments were for the right reasons. Sometimes there may have been political associations, but sometimes people had associations with other political parties and were still appointed by Fianna Fail led Governments.

In terms of the context of the actual process of justice in this country in recent years, it is the District Court which interacts with the citizens of the country on a daily basis. As has been pointed out, there has been many a robust defence put up by a citizen in our district courts and passionate debate from passionate solicitors defending citizens. Judges adjudicating on such cases are not from an elitist imaginary group. Rather, they are people who were fairly good at doing the leaving certificate, who got the required points, who went to college and who subsequently earned degree sand became solicitors or barristers. It is more than likely they were solicitors because barristers like to climb to the higher courts a little more quickly. They are not people of elite standing; rather, they are citizens of the State who happen to be smart people. I would like to think that we would have smart people on the Bench. I would like to think that the people sitting on the Bench and dispensing justice on a daily basis in our courts throughout the country hail from all walks of life. If there was ever a move towards elitism in terms of where one comes from, that is not necessarily a failing of the judicial appointments process. Rather, it is a failing of our education system. Addressing the issue of investment in primary and secondary schools in socially deprived areas and ensuring there are access programmes for people who are unable to get to college is the real solution if there is elitism, as has been suggested by some, in the District Court. It is not a failing of the appointments process, but of our education system and broader social solidarity.

Part 5 of the Bill deals with the judicial appointments commission office and states, "There shall be attached to the Commission an office to be known as the Judicial Appointments Commission Office (in this Act referred to as the “Office”) which shall assist the Commission in the performance of its functions." With all due respect, we have many quangos in this country. I cannot understand this. The Government of the day, on behalf of the people of this country, appoints between 16 and 20 judges. In order for those decisions to made, it is proposed that we will establish an office. Part 5 goes on to state, "The Office shall be funded by moneys provided by the Minister with the consent of the Minister for Public Expenditure and Reform."

I assume the Minister for Transport, Tourism and Sport, Deputy Ross, will have to be consulted, particularly as he predominately acts as the Minister with responsibility for opening Garda stations and - in cases where the Minister for Justice and Equality is told what to do - justice. I honestly believe that, in their heart of hearts, Fine Gael Members are hoping against hope that the Bill will be defeated or, at best, substantially amended. I am quite definite about that.

Some of the measures in the Bill are quite extraordinary. Chief Justice Susan Denham, whom I have never met in my life and about whom I do not know anything, is eminently qualified and sits in the highest court in the land, as outlined by the Constitution. She will not be allowed to chair the appointments commission. I have no difficulty with laypersons being on the commission but at the very least the Chief Justice should chair it.

Questions were asked as to whether we trust juries to dispense justice. Of course, we trust juries throughout the country to dispense justice. We would be very concerned, however, if a proposal to appoint the chairmen of juries as judges and appoint judges as members of juries were put forward. We would raise eyebrows about such a proposal. I suggest that the office of the President of the Supreme Court be afforded respect, not in a deferential way but in the context of its importance as a constitutional position and that the holder of the office be appointed to chair the appointments commission. At the very least, that should be done.

When the Minister of State goes back to the Department, she might take note of what has been said not just here but by many others who have concerns. It would be nice if we could get broad political support for a Bill that will address the accepted flaws in the process by means of which we appoint judges in order to ensure that the best people are always appointed and that those who may have political affiliations or who may have had such affiliations in the past will not, regardless of the nature of those affiliations, be penalised if they are best qualified for particular positions.

I urge the Government to withdraw this Bill so that this process can be revisited. Given the pace at which justice and politics moves in this country the judicial system or the political system would not grind to a halt in a couple of months. I do not commend this Bill: I condemn it.

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