Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I congratulate the Minister, Deputy Charles Flanagan, on his appointment and wish him luck. It is obviously a challenging portfolio in which there have been crises in the six years I have been involved in politics. I genuinely wish him good luck as he has his work cut out for him.

I have to confess that when all of this kicked off a few weeks ago, I knew as much as most people about the appointment of judges, which was next to nothing. I knew that the Cabinet made decisions and that there had been political influence in the appointment of judges for many years. I had a vague sense that the process needed to be reformed, but I have to admit that it is not an area I really knew. In the past few weeks, therefore, I have been listening to Dáil debates and commentary in the media and, in preparation for the debate on the Bill before the House, I looked in more detail at the Minister, Deputy Ross' Bill - the Government's proposed Bill - and also at Fianna Fáil's proposal, which is being led by my colleague, Deputy Jim O'Callaghan, whom I commend for what appears to be a serious piece of legislative work.

There is agreement among the majority of the House, possibly all of it, that the judicial appointments process needs to be reformed. Unfortunately, my reading of the Bill and the expert analysis of it is that it will not achieve the reforms needed. That, ultimately, is the problem. I do not believe the Bill should be supported by the Government or the Oireachtas. It would be very peculiar if it was voted through by a combination of the Government and Sinn Féin.

Under the current process, when a vacancy comes up, the Judicial Appointments Advisory Board advertises the post. It receives job applications from lawyers, as only they are allowed to apply to be judges. The board then determines who is suitable for the role. This is important. It does not provide guidance on who it believes is best for the role and does not rank the names on the list it sends to the Cabinet. Its job, essentially, is filtering out who is a suitable lawyer for appointment to the District Court, the Circuit Court, the High Court or the Court of Appeal. It provides the list for the Cabinet which then deliberates. Interestingly, I read commentary by Dick Spring who said that when he was a member of the Cabinet and asked to go through a long list of lawyers for appointment to the Bench, he had no idea who the best candidates were or who might not be good candidates, even though they might be eligible for the job. The Judicial Appointments Advisory Board essentially sends a letter to the Cabinet which chooses from the list.

I believe anyone looking at that process would say it needs to change. It is not merit-based in terms of rank. It is based on suitability and then some political decisions and is not very transparent. We all know that it needs to change. The Judicial Appointments Advisory Board was described by one of those involved in its creation as a "temporary fix". In 2014 the Association of Judges of Ireland acknowledged that the process was unsatisfactory and needed to change.

The list of suitable candidates provided by the Judicial Appointments Advisory Board for the Cabinet includes only those candidates who are suitable and no ranking is provided for the Cabinet, which obviously leaves the process open to political patronage, something we all want to get rid of. The public, Members of the Oireachtas, the legal profession and the Judiciary all want to see not just suitable lawyers appointed to be judges but also the best, most suitable lawyers, in so far as they would make the best judges. That means that we need to put in place an identifying body that could identify and evaluate the merits of candidates based on their suitability for the post. Critically, such a body needs to be independent and completely free from political considerations at the Cabinet. That is something on which we would all agree. It is reasonable that we have an independent, expert advisory board that could present a list of suitable and ranked candidates, in terms of who the advisory board thinks are the very best candidates, one that would be completely free of the political considerations of the Cabinet. It seems reasonable to want this in the appointment of judges.

Of course, the Bill before the House will not achieve this. It does not set out the need to interview candidates, which is extraordinary. I am not aware of any process for appointments to this level of job of this importance under which candidates would not be interviewed. It is astonishing that this would be the case. The proposed candidates will not be ranked and thus the process will not provide guidance on the comparative suitability of the candidates whose names will be put to the Cabinet. Were I a member of the Cabinet and presented with a list of the names of three, five or 20 lawyers and to receive no guidance from an advisory body, I would be at sea in trying to say this lawyer or that lawyer, for the following reasons, appeared to be the strongest candidate. I imagine that certainly some members of the Cabinet, were they to be honest, would say the same and that they would value some detailed guidance from an expert advisory group.

The Bill also posits the idea that lay people are better placed to make a judgement on the qualities of a prospective judge than judges or lawyers. It is a core element of the mindset of the Bill that people who have never been lawyers or judges are somehow better placed to decide who would make good judges than those in the legal profession or the Judiciary. That seems to be a very peculiar mindset to underpin the legislation.

Critically, of course, the Attorney General who sits at the Cabinet table is a member of the advisory board. I not making any comment on a specific person who is or has been in the role of Attorney General or will be in the future. However, it is as clear as day that if the Attorney General sits on the advisory board and is the only person sitting at the Cabinet table when the list is discussed, we have a direct link between the advisory board and the Cabinet which will make the decision. By definition, that means that it is no longer independent.

The Bill before the House is widely recognised as being a proposal brought forward by the Independent Alliance, in particular the Minister, Deputy Shane Ross. I was very taken by something he said in his statement in the House:

The objective of the Bill primarily is to reduce, if it is not able to eliminate, political interference in the selection of judges. This is the primary aim, and to do it as soon as possible.

The Minister has a Bill and is stating that its primary aim is to eliminate political interference in the appointment of judges, yet we have a direct link between the advisory board and the Cabinet. In addition, we will have no advice on the best candidates on the list sent to the Cabinet, which leaves the process wide open. For example, one could say, "We have five lawyers in front of us. We do not know what their merits are as we are not lawyers and do not spend our time in court, so we do not know which of them would make the best judge of the District Court or the Circuit Court. However, we know this person because he or she is in Fine Gael, Fianna Fáil or Sinn Féin and that he or she is a good person, so let us go with what we know. We know that this person is decent, a good lawyer and a person of integrity and think he or she would make a great judge." It is political patronage. If that is the stated intention, self-evidently, the Bill will not achieve it. The list of names put forward will provide no assessment of comparative suitability.

This is how the process will work under the Bill the Government is putting forward. The applicants' suitability will be examined. There will be no interviews. There will be a lay majority assessing candidates for roles of which they would have very little experience and understanding of the requirements to be met.

Critically, under the legislation there will be no representation from the District Court, the President of which is excluded from being a member of the advisory board. There will be no representation from the Circuit Court, the President of which is also excluded from being a member of the advisory board. As the Minister knows - I knew even before I started to look into this issue - the majority of judges are appointed to the District Court and the Circuit Court. On the advisory body there will be lay people who will make decisions about judicial appointments to the Circuit Court and the District Court with no representation from the Circuit Court or the District Court, persons who clearly would be well placed to provide an input on the type of man or woman who would make a great judge of the District Court or the Circuit Court. There will be no ranking of candidates and the Attorney General who sits at the Cabinet table will be a member of the advisory board. It seems to be a very peculiar way to achieve the end of removing political interference and ensure we have the best judges. It just does not make sense to me. I am not a lawyer and do not spend a lot of time in court and honestly do not know what the best characteristics of judges are. I would not be able to pick the best candidate from a list of four or 20 lawyers whom I did not know, but I do know enough to know that the process I have outlined is, self-evidently, not the best way for Ireland to select the best judges. Therefore, why are we discussing it? Why is this being brought forward by the Government?

The Bill further indicates that the Judiciary is, in some way, compromised, that having a majority of professionals on the board will in some way lead to political decisions. There is no indication that this happens. Furthermore, the introduction of lay people in no way insulates appointments of judges from political viewpoints. It is absolutely reasonable for us to assume that lay people with political viewpoints, be they pro-life, pro-choice, pro or anti-European, would look to get onto the board to try to influence the views of the judges we will have in the future.

The elements of the Bill we have outlined and which Deputy Jim O'Callaghan has gone through in great length simply will not achieve its stated aims, but it does appear that the Fianna Fáil Bill would achieve them. What does the Bill do? We will have a lay majority, but there is no indication why that is necessary. Deputy Jim O'Callaghan has asked for an answer to be given on this issue on a number of occasions, but, to the best my knowledge, he still has not received a satisfactory answer.

It has been stated - I am sure the Minister is sick of hearing the example given time and again - but for a lay person and a non-lawyer like me, if the Minister for Health was to say we would start appointing doctors and hospital consultants using a majority of non-medical people - that we would get somebody from the local GAA club, the local credit union, the local tidy towns committee, the principal of the local school, an eminent lawyer and an eminent human rights activist - to appoint cardiologists, neurologists and brain surgeons, it would not last 24 hours because we would all get that the head of the credit union was not well placed to appoint cardiologists and we would all understand the local school principal was not well placed to advise on the best junior doctor to become a neurologist. However, because we are dealing with the world of the Judiciary it is complicated. Most members of the public, including me, do not really understand this stuff, but that is essentially what we are suggesting. We are suggesting the head of the credit union, the local school principal, a human rights activist and a local fisherman could appoint a neurologist, that we have a majority of lay people on the board and that we also have three doctors on it. I do not think too many people would feel comfortable in getting sick if that is how we were to start appointing consultants or nurses, or teachers, but that is what we will do in the case of one of the most critical roles in the public service, namely, the Judiciary.

Regardless of whether the Bill is passed, the Constitution still gives ultimate power to the Government to appoint judges. In this case, the logical solution is to ensure it has access to the best possible advice, which means ranking candidates. I heard the Minister's earlier rebuttal, that if the advisory body was to place candidates first, second and third, what would be the point of the Cabinet even meeting to discuss the matter as the first placed candidate would be chosen. I would like to receive expert advice. If I had to make decisions on appointing lawyers to become judges, I would like more than a list. I would like to receive the expert advice of senior judges and others.

The Bill before the House makes a mistake that is made far too often, which is that we identify the minimum standard required to be met. The JAAB did this, but it should not have done and the Bill does it. It fails to recognise the failing of this approach, in that it does not identify those who truly excel, the best possible candidates, and, obviously, does not eliminate political interference in the appointment of judges. On the other hand, Fianna Fáil's Bill would achieve these aims. It would allow us to avail of sufficient expertise from the legal profession and the Judiciary. There would be representation from the District Court and the Circuit Court and the Bill would mandate the holding of interviews. It would also provide for rankings and the giving of expert advice to the Cabinet. There would be nobody sitting on the advisory board who was also sitting at the Cabinet table. There would be a mandatory explanation required from the Cabinet if it decided to go with a candidate from outside the list. Obviously, it would still be the Cabinet's right to do so. Fianna Fáil's Bill states this could be done, but an explanation would have to be given for it.

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