James Browne (Wexford, Fianna Fail) | Oireachtas source

I welcome the opportunity to speak on the Bill. There are three branches of Government - the Legislature, the Executive and the Judiciary. The regulations, structures and functions of these principal organs of Government are fundamental to the protection of our democracy and the rights of the people who live within that democracy. The Constitution was carefully crafted to regulate the relationship between these institutions by setting out the balance of power between them. It does this by means of the separation of powers. The doctrine of the separation of powers operates by putting in place a degree of independence between the parties whereby a system of checks and balances can operate. The three institutions are to work as a counterweight to each other. Any erosion of the separation of powers or those checks and balances must be fiercely resisted. Erosion of the separation of powers can occur by the encroachment of one arm of the State on the other. It can also occur when one arm of the State attempts to undermine another arm of the State.

To return to the Government's proposed Judicial Appointments Commission Bill 2017, I have carefully read it and it is clearly a flawed Bill. It fails the test of the separation of powers, both legally and philosophically, and in doing so it undermines all three institutions of our State and, consequently, the protections in place for our citizens and non-citizens. The consequences for the public may be profound and long term. Why do I say this? First, there is the politics. It was obviously cobbled together in haste to keep the Minister, Deputy Ross, on side with the Government. The legislation is clearly ill considered and poorly constructed. It reminds me of a farm animal put together by a committee. It is a hodgepodge of compromise between Fine Gael and the Minister, Deputy Ross, with more than a nod to Sinn Féin to ensure its support.

We know the Minister, Deputy Ross, has long displayed a resentment towards the Judiciary and has been only too willing to cast aspersions on the highest judges in the land. He has regularly sought to undermine their credibility and reputations. One only has to read the record of his statements in both houses of the Oireachtas to know that. I want to examine a number of those statements. On the Seanad Order of Business on 15 February 2006, the following exchange was recorded involving the then Senator Ross:

Senator Ross:Senator Jim Walsh raised the matter of the Judiciary on which Senators Norris and O’Toole and I tabled a motion some time ago. I refer to political appointments to the Judiciary and seek a debate on ending political appointments thereto.

Senator Lydon:Certainly not.

Senator Ross:For so long, one party has put its own people in power and then another party has appointed its people to the Supreme Court.

Senator Wilson:That is not correct.

Senator Feeney:Five High Court judges were appointed and they had nothing to do with our party.

Senator Ross: Occasionally a dummy is appointed to fool people. I wish to finish without interruption. In the Bar Library people predict the outcome of Supreme Court decisions on the basis of party affiliation.

This was both a slur on those appointments and a slur on the Supreme Court judges. During the debate on confidence in the Taoiseach on 16 June 2010, the then Senator Ross stated:

If one talks to people in the Law Library, they will say, “That one is yours or that is theirs”. They identify judges in private conservation and when they talk about Supreme Court judgments, they can say which way they will go according to the political colour of the judges.

That is not only wholly incorrect but, again, is a slur on judges in the Supreme Court. In the Seanad on 28 February 2007, at a time when the then Senator Ross wanted this House or committees to scrutinise judges, he stated:

I seek a debate on No. 21, motions Nos. 8 and 9, so that we can discuss in a calm way the possibility of making appointments to semi-State bodies and the Judiciary subject to the scrutiny of the House. Unfortunately, the Independent Members have never had an opportunity to make such appointments.

That last sentence is the important one. There, we are getting to the nub of the motivation for this Bill. For the Minister, Deputy Ross, this is an issue about power, in particular the Minister's lack of power, as he sees it. There is clearly resentment and a bitterness towards the Judiciary. It is one of the oldest issues in the book.

The Minister, Deputy Ross, now seeks to have the Government bring forward legislation that will seek to put in people he claims are independent or ordinary people to appoint the judges. He consistently refers to them as being ordinary people. The Minister, Deputy Ross, obviously circulates in more rarefied positions than I do. Where I come from in Wexford, ordinary people are mechanics, electricians and people who work in supermarkets. The Minister, Deputy Ross, seems to consider ordinary people to be those in the establishment, such as people who work in funds, accountants and stockbrokers. These are not ordinary people; these are people who have their own vested interests.

As a result of the demands of the Minister, Deputy Ross, we find ourselves discussing the Bill for three days. We are approaching the end of the session and there are crises in mental health and waiting lists for medical appointments while thousands of people are homeless, yet none of these issues is given priority by the Minister or the Government. Why is there no mental health legislation before the House? Why has desperately needed legislation such as the child care Bill, which seeks to give a voice to children in the courts, not been prioritised? Why has the affordable child care Bill, which will help people with the crippling costs of child care, not been prioritised? Why has the gambling control Bill not been prioritised? This will regulate the Wild West that is our gambling laws and help to protect our children from gambling addiction. The Government could bring forward an endless number of desperately needed Bills to strengthen citizens' rights, yet not of these has been prioritised and, instead, the hobby horse of the Minister, Deputy Ross, was made a priority. His Bill seeks to weaken citizens' rights by undermining the independence of the Judiciary through the politicisation of appointments.

It is clear the Bill will achieve three things. It will damage the quality of justice administered by our courts, politicise the appointment of judges even more than is currently the case and establish an unnecessary and costly super-quango. The administration of justice is a fundamental role played by the courts under our Constitution and it is a cornerstone of the separation of powers. Article 34.6 clearly provides that justice should be administered in courts established by law by judges appointed under the Constitution in public. Hundreds of thousands of cases are dealt with by the courts each year from the District Court all the way up to the Supreme Court. Every case has an impact on our society, even the most minor ones. The most common cases are taken in the District and Circuit Courts. Some of them might seem minor to the outsider, but their outcome is fundamental to the individuals who are involved in them. District Court cases are often fought with the same veracity, hope and determination as a Supreme Court case. The cases are heard by judges who have been appointed under the Constitution. They must have a knowledge of the Constitution, statute law, EU law and common law. In short, they must be experts on the law.

However, they need much more than that. They need a good temperament and they need to weigh up individual cases. The best paid lawyers in the State would make terrible judges. A judge needs to have confidence but not be a zealot. He or she needs to be fair minded and to have the self-awareness to know his or her weaknesses and to acknowledge and address them. A judge must have strength, but must also be willing to yield when necessary, and he or she must have a deep understanding. It requires people who understand the workings of the court to have the expertise to know what makes good judges and the difference between what makes a good judge and a good lawyer. They are not always the same. Deputy O'Callaghan touched on a crucial point when he referred to the consistent determination and attempts by the Government to confuse lawyers with judges. They are not one and the same. When someone is appointed a judge, he or she leaves behind his or her profession as a lawyer. Judges are professionals, but it is not a profession. They are an independent arm of the State and they have the same position under our Constitution as the Taoiseach, but with a different role. It is important that they are kept separate and that they are not undermined by another arm of the State.

One of the stated aims is that the legislation will remove politics from appointments, yet we know from analysis that it will do the opposite. Those and, in particular, the Minister for Transport, Tourism and Sport, who say it will end this either do not understand the Bill or they are fully aware of what it will do. The Bill provides for a majority of lay persons to decide who should be recommended as judges. These people will have no expertise or knowledge in what is required to make a good judge but they have expertise and knowledge about the running of the establishment. There is no doubt they will be nominated from some of the powerful vested interests in the State. The process will be even more politicised. What will their agendas be? What will they seek in the appointment of judges? As Deputy O'Callaghan mentioned, will pro-life or pro-choice viewpoints be considered, for example? Will people who are looking to undermine the State seek appointment or people who would like other viewpoints in judgments? Will people who feel aggrieved over past decisions and judgments seek to become members of the commission in order that they can control who is appointed to the Judiciary? One of the oldest tricks in the book in politics is where a Minister cannot decide the outcome, he or she decides the people who will be on the body that will decide the outcome. It puts a reasonable distance between the politician and the body. It makes it look independent while doing quite the opposite. This undermines transparency and accountability.

Even with the legislation, the super-quango it will create, the hundreds of thousands of euro it will cost, and the people who will be transferred from the Civil Service to staff it, the Government can still ignore any decisions this advisory body will make. It can do so in the same way it ignored the 1995 legislation two weeks ago. It remains the prerogative of the Executive to appoint who it wants as a member of the Judiciary. The Bill does not even provide for nominations to be ranked in order. It will remain the case that three names will be put forward and the Government will be free to do what it wants, irrespective of this legislation. It will, therefore, do nothing to depoliticise the appointment of judges. It will strengthen the politicisation of appointments but put them at a remove from the Government and in the hands of unknown persons.

One of the reasons the State survived independence, unlike many countries that secured independence but struggled for a long time to establish a strong and stable democracy, was judicial independence. When the new Constitution was introduced, judges who may not necessarily have agreed with it or who came from a different era abided by it and the decisions of the House and continued to act independently. While every judicial appointment has been made by the Executive over the decades, throughout the debate on the Bill, no example has been provided of a judgment where there was interference by a judge or a political party. The Minister for Transport, Tourism and Sport has uttered a great deal of invective in the past about that and I referred to some of his quotes earlier, but he has been unable to give a single example. One of the notable aspects of the debate over the past few weeks has been that people who may not be considered to be friends of Fianna Fáil have said that judges, once appointed, have always acted independently, whether they were appointed under a Fianna Fáil-led or Fine Gael-led Government. Using another old trick in the book, the Minister is trying to deflect by trying to solve a problem that does not exist. He is trying to create a problem to be seen to have solved it while he ignores issues in his own Department, such as the lack of enforcement of penalty points on driver licences.

It has been consistently put forward that the new body will comprise a majority of lay persons but no explanation has been given as to why people who are expert in the running of the courts or in what is required to be a judge should be in the minority. People who may never have set foot in a court will be in the majority. On paper, somebody might look a good potential judge by having been involved in many significant cases, but he or she may have been a junior counsel who sat beside a senior counsel and may never have led a case. He or she may have a successful career, earning lots of money in the courts, but that does not mean he or she will make a good judge.

They may have top marks or top degrees from universities, but that does not make them good judges. As I said earlier, they might not have the right temperament or right sense of fairness.

This Bill also attempts to undermine and demean the Chief Justice of the Supreme Court. She is expected to sit on a committee but not chair it. Instead, she is to sit on the side and effectively be told what to do. As was highlighted earlier, can one imagine the Taoiseach being expected to sit on a committee but not chair it? It would not happen because it would undermine the Taoiseach. Here we have one arm of the State trying to undermine the head of another arm. It is wholly unacceptable to see that being attempted.

The Taoiseach gave examples of regulatory bodies on which the majority of members are independent. Of course, they should be independent. It is demanded that they be. However, these boards are assessing the actions of a professional within a certain profession. It does not involve the separation of powers or one arm of the State trying to interfere with another arm. Trying to bring Supreme Court judges down to that level where they are seen as a body to be regulated is not acceptable. It shows a misunderstanding of judges’ role in the Constitution.

The Minister for Transport, Tourism and Sport, Deputy Ross, compared the process to juries which are composed of ordinary people. They are ordinary people but they are there to bring their common sense, common knowledge and common understanding to the facts of a case. It is the judges who continue to run the court and apply the law. It is a different situation.

This is a flawed Bill which will be overseen by a super-quango. We know that on average 15 to 20 judges are appointed every year. However, one could go six months with no judge appointed. What will the civil servants in this super-quango be doing in that time? No one knows. They will probably be sitting around, maybe empire building. We do know, however, that we have three-year olds waiting three years to see a psychologist. We have people who cannot access maternity benefits, as well as delays in medical card and fair deal applications, because we do not have civil servants to administer them. There are three civil servants in the Department of Agriculture, Food and the Marine dealing with one of the most existential crises the State has ever faced, Brexit. However, we can afford to put loads of civil servants into some new commission, give them a lot of money and, perhaps, nothing to do for long periods.

This is a flawed Bill because it undermines the independence of the Judiciary and politicises even more so the appointment of judges, but in a way that reduces transparency and accountability. It is motivated by the whim of one Member who has had a particular agenda for a long time and who has sought consistently to undermine judges. At the very least, this Bill needs more time to be considered and should not be rushed as it is. As I said earlier, it is beyond me why this Bill has been given such priority when so much other legislation badly needs to go through this House. In those circumstances, I ask the House to reject this Bill.

Fianna Fáil has had a Bill on this matter which has passed Second Stage. It is much better legislation in bringing about fairer change for the Judiciary. The Judiciary itself has said it wants change, but not this hodgepodge change being brought through in haste based on a personal agenda which will only undermine one arm of the State.

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