Niamh Smyth (Cavan-Monaghan, Fianna Fail) | Oireachtas source

I congratulate the Minister, Deputy Charles Flanagan, on his new role and wish him the very best of luck in the weeks and months ahead.

I welcome the opportunity to speak to the Judicial Appointments Commission Bill 2017. While Fianna Fáil fully believes in the need for reform of the judicial appointments system, we also believe the Bill published by the Government is deeply flawed. Fianna Fáil has proposed legislation to establish a judicial appointments commission, fully independent of the Government, that would make recommendations to the Government based on an independent assessment of the merits of applicants for judicial office. I compliment my colleague, Deputy Jim O'Callaghan, who has put immense work into it. He is an expert in the area. As Deputy Stephen S. Donnelly stated, we need expertise in making any appointment but particularly in this profession which is critical for the country. With the proposals for a lay majority and the downgrading of the Chief Justice’s position, the Government has let the Minister, Deputy Shane Ross, drive forward a spurious agenda which risks undermining the independence of the Judiciary.

The Judicial Appointments Commission Bill 2017 will change the way judges are appointed in Ireland.

A new body, the judicial appointments commission, will replace the Judicial Appointments Advisory Board. Serving judges applying to another judicial position will have to apply through the judicial appointments commission. It is imperative our judicial appointments process is reformed to ensure people are appointed to judicial office based solely on merit. For that reason, Fianna Fáil proposed legislation establishing a judicial appointments commission, fully independent of the Government, which would make recommendations to the Government based on an independent assessment of the merits of applicants for judicial office.

The commission proposed by the Government will not allow for such an independent process of assessment. That is the most critical and poignant part of this legislation. Among its faults, the Bill will require the Chief Justice to sit on a commission that she will not chair. This is indicative of the disrespect that the Government has for the Judiciary. This Bill will exclude the Presidents of the Circuit and District Courts from full membership of the commission. It is also recommended that the majority of the commission should be lay members, namely, persons who are neither judges nor lawyers. This grouping of judges and lawyers in the same category by the Government ignores the fact that judges are not members of the legal profession. The fact that they were previously members is not a basis to assume that judges and lawyers, if in a majority, will have a negative influence on this commission.

The Bill proposes that the three persons recommended by the commission will not be ranked in order of merit. The failure to do so defeats the entire purpose of having a commission that seeks to recommend the best candidate. It is regrettable the proposals put forward by the Government are not for the purpose of achieving genuine reform but, instead, are for the purpose of appeasing one member of the Government whose proposals in this area are ill-considered and deeply flawed.

Fianna Fáil remains committed to achieving reform in this area, as outlined in its Judicial Appointments Commission Bill, published in October 2016. The weakness in the current system means that when a large list of names is presented to the Cabinet, most of them do not know how to go about choosing one person from a list of 24 for a District Court position. There is no reason politicians should be aware of who is the most suitable or best candidate. It is true people who have political connections are at an advantage if their names are on the list which goes to the Cabinet. Many people who are appointed because of political connections turn out to be excellent judges. We should not have a system whereby because a person is involved in politics, he or she should be excluded from subsequent nomination to judicial office. We need a recommending body which can identify who it believes will be the best person for the position of judge. We should have a recommending body that ranks individuals in terms of their suitability for the job.

Under the Constitution, which is appropriate, the Government has the final say. Regardless of what system is in place or how it operates, the Government can disregard the list of candidates provided by the Judicial Appointments Advisory Board and appoint a candidate of its choosing. This is the system which currently operates under the Constitution. However, we believe it needs to be changed and broadened to ensure it is fairer and that the best people have an opportunity to be considered and appointed.

The Fianna Fáil Bill establishes a judicial appointments commission to recommend to the Government the names of individuals who it believes would be the most suitable, based on merit, to be judges. For each position, it will recommend three people. The Government scheme has the same provision. Under our Bill, however, the three will be ranked in order of one, two and three. In no way does that offend the constitutional prerogative that rests with the Cabinet. Under neither scheme must the Cabinet opt for anyone on the list. However, there is a benefit in the Cabinet being told by a body with expertise that it believes these are the three best people in a certain order.

I come from a different professional background in education. In any interview panels on which I sat or was party to, there was always expertise on them. That format has to be followed if we are serious about getting the best people in such critical positions in the Judiciary. One would not put people with no teaching experience or nothing to contribute on a panel interviewing for a teacher, a vice principal or principal post. Needless to say, the same should apply to appointing judges.

There is a further important part of the Fianna Fáil Bill which differs from the Government’s. We set out specific criteria if people are to be appointed as judges. It is important the public be apprised of what qualities one needs to be appointed. This provision is not found in the Government’s scheme. It is important we set out in our legislation matters that may seem obvious. One needs integrity, independence of mind, moral courage, a high level of intellectual skill, sound temperament, common sense, impartiality, objectivity, fairness and composure. The greatest judge in the world will not have all these. However, it is useful for the public to know what is required.

A further way in which Fianna Fáil’s Bill is relevant concerns the membership of the commission. The body of people most qualified to make recommendations are judges themselves and others who have experience. Under our Bill, there would be 12 members on the commission. These include the Chief Justice who is President of the Supreme Court and the Presidents of the Court of Appeal, the High Court, the Circuit Court and the District Court. They would be judicial members. Interestingly, the Government has adopted hook, line and sinker the language of the Minister for Transport, Tourism and Sport, Deputy Shane Ross, which is all about lay people and non-lay people. It is offensive to judges that non-lay people, under the Government’s scheme, are described as judges and lawyers. Judges are not practising lawyers. They were lawyers formerly. The membership of the commission proposed and advocated by Fianna Fáil is of persons who have the best interests of the people at heart when it comes to identifying individuals who would make good judges. It is farcical to suggest that judges, such as presidents of the courts, will want to select for recommendation people who are their friends. They will want to ensure the people chosen are effective and useful.

The Association of Judges of Ireland issued a statement to express its concerns at several measures contained in the Judicial Appointments Commission Bill. The Judiciary is not opposed to the introduction of changes in the system of appointments to the Bench. However, it believes, as does Fianna Fáil, the proposals going before the Oireachtas are seriously flawed. These concerns need to be listened to. Reform of how judges are appointed will have significant consequences for this country that will impact long after the current Government is gone. Unfortunately, this Bill is misguided and poorly constructed. Fianna Fáil remains committed to achieving reform in this area, as outlined in our Judicial Appointments Commission Bill. Again, I compliment our justice spokesperson, Deputy Jim O’Callaghan, who has put immense work into it. We should be listening to his expertise as he comes from a legal background and knows what he is talking about.

See this speech in context