James Lawless (Kildare North, Fianna Fail) | Oireachtas source

The genesis of this Bill is not new politics or reform but the worst kind of grubby old politics, a deal done with undue haste to satisfy a pet project of an Independent Minister who seeks to hold the Government to hostage. The Government, led by Fine Gael, the party of Collins, O'Higgins, Cosgrave et al, which claims to be the genesis of this State has unashamedly bowed to the Minister in respect of this particular hobby horse of his. One wonders to what new low it is prepared to stoop to allow this Government to shuffle towards the summer recess.

The crusade of the Minister, Deputy Ross, in respect of the Judiciary is reminiscent of the worst excesses of the jingoistic, little Englander, Brexit yellow press - my grandfather called them "The Tory Papers" - which engaged in an anti-judicial assault during the Brexit debate. The front page of The Daily Mail was festooned with pictures of Supreme Justices, named and shamed as enemies of the State. There was shock horror and indignation that one of them even spoke a continental language, among their rabid culture of the Brexit debates. Unfortunately, this type of anti-electoral tyranny appears to be at the heart of this Bill. Having been kept at bay, thankfully, for close on 12 months because wiser minds in Fine Gael prevailed, despite the promises during the formation of Government, the Bill was advanced following the recent scandal. The Bill is now being progressed at shocking speed at the expense of all other business.

As an Opposition first-term Deputy trying to submit Private Members' Bills and work them through the system to reach even First Stage, it is shocking to see the speed with which all other business has been disregarded and cast aside so that the hobby-horse of one Independent Minister can take centre stage and be the subject of 19 hours of debate this week and possibly more discussion next week. That undue haste is matched only by the unseemly speed at which the Taoiseach sped to the Phoenix Park, at least metaphorically, the previous Sunday to prevail upon the President to fast-track the appointment of the former Attorney General in order to cover his and the Government's blushes.

It is also notable that since the Minister for Transport, Tourism and Sport, whose Bill we all know this is, took office, his Department has published only one item of legislation. As my colleague said few moments ago, perhaps he is the Minister for Stepaside Garda station but he is certainly not the Minister with responsibility for transport because we see problems across the transport sector, with creaking park-and-ride facilities, a lack of investment in the motorways and the entire greater Dublin area suffering from a lack of commuter infrastructure. I was not surprised to see very little substance in replies to parliamentary questions yesterday because I am accustomed to it at this stage. The greater Dublin area transport plan was produced and then forgotten as quickly. Perhaps the Minister would be better advised to concentrate on his own Department.

With regard to the one item of legislation he did introduce, on the Order of Business prior to Christmas I was obliged to remind the Government that implementation of the provisions of the Vehicle Clamping Act 2015 was long overdue. That legislation was originally introduced in 2014 but I was obliged to raise the matter with the Taoiseach in December 2016 to ask when its provisions would be brought into force. Thankfully, the process in that regard has commenced but it took some prodding to make it happen. This is in stark contrast to the speed and passion with which this Bill is being pursued.

It is certainly the case that Fianna Fáil sees the need for change in the judicial appointments system and we are open to this suggestion and reforms. One is reminded of old politics in the sense that Deputy O'Callaghan proposed a very detailed, thorough and considered Bill on which he had been working for some time. There was cross-party support for and interest in the Bill in question from Deputies on all sides, and particularly those on the Opposition benches. Many Deputies spent time finessing proposed amendments to the Bill, none of which ever actually got off the ground because, unfortunately, the Government, falling back on the worst type of old politics, found it was a money Bill and would involve a charge on the Exchequer. The latter meant that the Bill could not be progressed. The financial charge on the Exchequer would have been slight, but it was nonetheless used as an excuse by the Government to avoid dealing with the substantive matter until now, with the Minister for Transport, Tourism and Sport, Deputy Ross, successfully bring it back onto the agenda.

Even now, when it has effectively admitted its error in the handling of, and procedures used in, the recent appointment of the Attorney General to the Court of Appeal, will the Government concede that an apology is due to the three High Court judges who were overlooked, disregarded and ignored and who had made their cases clear to the Attorney General - we understand the Tánaiste was aware of the latter - but whose applications proceeded no further? Will the Government even have the good grace to issue an apology to those three judges, who went through the correct procedures and channels and yet their cries fell on deaf ears? An apology would be welcome. They did everything right in terms of applying through the appointments board and informing the Attorney General. While the appointment may have been within the letter of the law, it certainly was not within the spirit of it.

There have been repeated and substantial observations from senior members of the Judiciary, the Bar Council, eminent judges, judicial experts and experienced commentators in recent days, all offering stark warning in the context of the advancement of the Bill. Yet it appears, as per the worst excesses of Brexit, that we have had enough of experts. The likes of the President of the Supreme Court, the Chief Justice, the President of the Court of Appeal, the President of the High Court, the President of the Circuit Court and the President of the District Court are all to be disregarded. We have had enough of experts. Their joint letter to the Taoiseach was an unprecedented step. The Government has refused to engage and publish it. This is a first in legal history. The substantive concerns raised in the letter are unprecedented in the history of the Irish State, but some members of the Government are determined to press ahead, although we have heard welcome concerns raised from the Government benches in recent days. The Minister, Deputy Ross, knows better.

It is reminiscent of when the Government attempted a power grab on Dáil committees not so long ago. At that point, it was forced to consult the people in a referendum. At the time, seven former Attorneys General signed a letter and published it in The Irish Timeswarning against proceeding in that regard. The Government went ahead regardless. It had had enough of experts. We see the same pattern today. Thankfully, on the occasion to which I refer the people put a brake on the Government's advance. The mandate of the people was sought at the ballot box and they said "No, enough is enough". People rightly put a halt to the gallop of those involved in that power grab. In the same way, an attempt was made to abolish the Seanad shortly afterwards but the people also put a halt to that. They respect the separation of powers and the Houses of the Oireachtas even if, perhaps, the Government may not always do so.

On Tuesday evening we heard how the most fundamental layer of local democracy was also whipped away by the previous Government, when town councils were abolished by the then Minister with responsibility for the environment, Phil Hogan. At least the Labour Party, which was a substantial part of that Government, has had the good grace to admit regrets about this move and express its concern. It has had the courage to do so and yet the Fine Gael Party, which remains in power, has had no such Damascene moment and has not yet considered the error of its ways.

Recently the Taoiseach spoke in the House about a book club. He spoke about books he might recommend for people to read over the summer recess. One of these books is Hillbilly Elegyby J.D. Vance, which I read recently. It is a good read. It was one of the Taoiseach's favourites and he regaled us with tales of it. However, I am not sure whether he has read it yet - perhaps he will do so on his summer break - because if he had done so, he surely would have learned from it a tale of a dysfunctional society, fake news, a distorted value system and a dysfunctional anti-establishment, anti-intellectual frenzy that ultimately elevated President Trump to power. The Government now appears to be engaged on the same type of cowboy crusade against the Judiciary.

Continuing with the book club theme, I will consider another volume, The Irish Constitutionby J.M. Kelly, a seminal work known to law students for decades. It is probably the most authoritative work on the Irish Constitution. It is littered with references to judicial independence, the importance of the independence of the Judiciary, respect for the office, respect for the Chief Justice and respect for the State. At one point in the book, Kelly suggests that any attempt to interfere with the system of judicial appointments would be unconstitutional. It is notable that the late John Kelly was a previous occupant of the seat now held by the Minister, Deputy Ross. The late John Kelly was a Fine Gael Deputy for many years. He was a Minister, he served as Attorney General and he was an extremely eminent and distinguished legal academic. Could he ever have foreseen that his beloved party, Fine Gael - the party of law and order - which he served so well, would cast aside his ideas and volumes and all the decades of legal thought behind them?

Turning to the substance of the Bill, the concept of a lay panel, a lay chair and the anti-judicial bias, there is no evidence that these are required or necessary. Dr. Eoin O'Malley published research in April which shows that there is no evidence to back up the contention that political appointments or appointments that are politically influenced have any bearing on the exercise of functions, or the outcomes of same, or on the performance of the judges. In that context, the position here is in stark contrast to the United States, where Senate hearings, appointment hearings and ratification hearings are highly politically-charged affairs and where and Supreme Court vacancies are kept open for years. In some cases, such as the vacancy arising from the death of Justice Scalia, no appointment was made because the partisan tensions in the US Congress are so extreme and great that agreement could not be reached. We have not seen this system in Ireland. This has not been the case. In fact, evidence would suggest that Fianna Fáil Governments certainly reached across the floor in every sense and appointed many judges who may not have been of the same political persuasion. Academic evidence confirms this. Dr. Eoin O'Malley's recent paper highlights the fact that political appointments or appointments that are politically influenced have no bearing on judges' performance of their functions or duties.

We do not have such a politically charged, highly partisan approach to the Judiciary as may occur in some other jurisdictions. Ireland is not the United States; ours is not a partisan culture. I think reference was made earlier today to Ruadhán Mac Cormaic, who carried out a study of the Supreme Court going back over 80 years of jurisprudence, the Judiciary, evidence and decisions. Mr. Mac Cormaic, in his article in yesterday's edition of The Irish Times, state "if you were to be asked to come up with a way not to design a piece of legislation, this would be it". That is Ruadhán Mac Cormaic, an expert on the Supreme Court - but we have had enough of experts. Again, there is no evidence of any kind of excess or persuasion. I would tend to think, "If it is not broken, do not fix it", but perhaps the Government or the Minister, Deputy Ross, knows better.

I ask the House to consider the international experience across the common law world. We are part of the common law judicial system, another reason it is imperative judges follow within the ranks and follow certain procedure. That is how law is made. In the common law system, the system of precedents and stare decisisis exactly how these decisions are arrived at. We can compare Ireland with other jurisdictions across the common law world. New Zealand, for example, is considered to be the country affording the greatest degree of freedom to the State and the Government in terms of judicial appointments. The way in which New Zealand conducts its appointments to its Judiciary represents the greatest freedom in terms of the Government having the most latitude. Yet it is ranked first for judicial independence and judicial integrity. Despite many claims, much debate and suggestion to the contrary, primarily from supporters of the Minister, Deputy Ross's Bill, Ireland is ranked fourth. That is not bad. England and Wales, whose system is probably the closest in the common law world to the system the Minister, Deputy Ross, wants to introduce, is ranked sixth. That is within the top ten but far behind Ireland and behind New Zealand, which has no such system in place. It does not lead to better outcomes.

The language of this obsession with a lay majority and the idea that nothing but a lay member will do is wrong. The concept of judicial versus non-judicial is also unclear and there is a gratuitous disregard for the Chief Justice. It would appear the judges targeted in this legislation are excluded and forced into a minority position and it appears to be a form of perverse logic that they are precluded by virtue only of having professional expertise in the field in which they are asked to make considerations. They are excluded for knowing something about it because we have had enough of experts. It is wrong for any appointment to be made on the basis of political bias but it is equally wrong to suggest that a politically involved individual should be excluded from any elevation or career progression.

In the past few days, we have heard much talk of the King's Inns, to which I will return in a moment, but it is worth considering some of the political alumni from that institution. We can look to Wolfe Tone, Robert Emmet, Daniel O'Connell, Patrick Pearse, C. J. Haughey, Garret FitzGerald, Mary Robinson and Mary McAleese, to name seven or eight. The concept that a political appointee is somehow to be excluded from consideration for judicial office is a nonsense. Many of the most eminent politicians, statesmen and leaders who have served this State graduated from King's Inns or the Law Society at Blackhall Place because the two go hand in hand. That is, the practice of the law and the practice of politics have so much overlap and so much interest in the Constitution and the way in which the State functions that the type of individual who pursues one invariably pursues both and that is normal across the western world.

If one were to analyse why there may be difficulties in appointing judges, perhaps one would find it is less to do with the system and more to do with the reality that the attractiveness of judicial office has been diminished in recent years by the Government in many ways - in practical ways, such as in respect of pension entitlements and salary. There is often very little sympathy in this regard because people do not like to talk about politicians, judges or holders of senior office, but the reality is they are experienced, qualified people. It is a reality that a senior counsel will earn more at the Bar than by taking judicial office. The new pension rules mean that senior counsel will have to wait 20 years to accrue pension entitlements. Considering it takes the guts of 20 to 30 years to build up a practice after study for five, six, seven or eight years and five, six or seven years of devilling, by the time one is advanced in one's career or reaching career peak, one is probably ten or 20 years away from retirement, usually the former. These kinds of pension rules and changes to entitlements are therefore an inhibitor to people joining the Bench and taking on appointments and perhaps this should be considered.

Another point that should be considered, and it is recognised and has been amplified in this debate, is the political culture that has pervaded the Judiciary in recent years and the clashes. The separation of powers has not been observed, despite many claims to the contrary, and the Government again paid great lip service to this in recent weeks. The temerity of any Member of this House or anyone else to question the Judiciary was challenged, yet it is the Government itself that has led an assault on the Judiciary over the past number of years, which has led to a highly charged atmosphere in which judicial appointments are less attractive at this point than they once were. It is a fact that for many judges, it is an extremely stressful environment and there are difficulties in the position. The role of judicial integrity and political perspective, that increasing conflict, makes many less inclined to make that leap. Again, the position of Chief Justice, the highest judicial office, is needlessly assaulted in the Bill. We respect that office. We respect the office of the Ceann Comhairle. We respect the office of the Taoiseach. We bow when we enter the Chamber. That is correct and proper and these are high constitutional offices which deserve respect. The Chief Justice is, for no other reason than being gratuitously inflammatory, being reduced to a bit part player on these judicial committees.

It is also true that the Cabinet, even if this Bill were in place, could still ignore the recommendations proposed. In Deputy O'Callaghan's Bill, that is, the Fianna Fáil Bill that was introduced, if the Cabinet were to ignore a recommendation from the appointments board, it would have to produce a good reason and a statement stating why it had done so. In the Bill before the House there is nothing of the sort. The Bill could pass the Houses and be entered into law and signed by the President and the same thing that happened two weeks ago could happen all over again. There is nothing in the Bill to address the recent controversy and this must be considered by all in the House before we proceed.

There is also a potential conflict of interest with the Attorney General sitting on the board, the same board that makes and then accepts the recommendations. Nemo iudex in causa sua, as one would say at the Bench, but this clear conflict is contained, writ large, in the Bill. There are measures against former judges and many others.

I am conscious of the time but references have been made in the past few days to the King's Inns establishment and practice and study at the Bar. It is worth putting on record that not every applicant who walks into the King's Inns has a silver spoon in his or her mouth. Many, including myself, worked in other walks of life, had other jobs, finished a day's work and cycled over to night studies at the Bar. I was fortunate to be working in Dublin at the time, so the King's Inns was only a short distance away. I studied at weekends and by night. Many come from the country - from Galway, the west, all corners of the island - and that traditional route of night study, evening diploma and weekend course in the King's Inns is very valid. In fact, our former Taoiseach, Jack Lynch, went along the same path and there are members of the Supreme Court who did the same, so the idea that the Bar is this elitist, unattainable, inaccessible institution is simply untrue.

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