Eamon Scanlon (Sligo-Leitrim, Fianna Fail) | Oireachtas source

The explanatory memorandum states that it is envisaged that the annual cost of the operation of the legislation will be in the order of €1 million in each full year of operation.

The reason why our judicial appointments process needs to be reformed is to ensure that people are appointed to judicial office based solely on merit. For that reason, Fianna Fáil proposed legislation establishing a judicial appointments commission that is fully independent of Government and that would make recommendations to Government based on an independent assessment of the merits of applicants for judicial office. Unfortunately, the commission proposed by the Government will not allow for such an independent process of assessment. Among its faults is that the Bill will require the Chief Justice to sit on a commission that he or she will not chair. For instance, if a Taoiseach were to sit on a committee but not be its chairman, this would be dismissed out of hand by Government. The Bill also excludes the Presidents of the Circuit Court and the District Court from full membership of the commission.

The Bill also proposes 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. It would be considered remarkable if surgeons in hospitals were selected by a panel the majority of whose members had never carried out surgery or even worked in a hospital. The Bill also 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 that 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 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 our own Judicial Appointments Commission Bill published in October 2016. At present, when a vacancy arises in a court, the Judicial Appointments Advisory Board places an advertisement in a newspaper or online inviting applications for appointment as a judge to the District Court, Circuit Court, High Court, Court of Appeal or the Supreme Court. The board will then receive a series of applications from lawyers because only lawyers can apply to be judges. The job of the board is to process those applications. In many instances, particularly in respect of the District Court, hundreds of applications will have to be processed. The job of the Judicial Appointments Advisory Board is to determine who is suitable for the position. It is not the function of the board to try to identify the best candidate. It is a filtering process in the determination of suitable candidates.

The Judicial Appointments Advisory Board is required under legislation to provide the Government with the names of seven individuals which it believes are suitable for appointment to a particular vacancy. Sometimes more than seven names are provided. If there are multiple vacancies, there will be many names put forward by the board to the Government. When the Government receives the list of names, it then makes its decision as to who should be selected. Under the Constitution, and also under the Government’s proposed scheme and the Fianna Fáil Bill, the Government can choose whoever it wants. It does not have to select a name from those provided. We believe it is appropriate that the recommending body should carry greater authority and that it should filter down its nominees such that the Government is aware of who it believes are the best persons for the position.

The second issue is why the system needs to be changed or, in other words, what is the weakness in the system. The weakness in the system is that when a large list of names is presented to Cabinet most of the members of Cabinet, in fairness to 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 that politicians should be aware of who is the most suitable or best candidate. The State papers from 30 years ago published over the new year included a record of Alan Dukes, when Minister for Justice, stating that he did not know who was the best candidate or who should be selected to be a judge. He said that he felt it was a matter primarily for the Attorney General. In fairness to members of Cabinet, most of them do not know who are the most suitable candidates. It is unfair to put that pressure on the Government.

It is true that people who have political connections are at an advantage if their names are on the list which goes to Cabinet. It is often said that canvassing should be prohibited. Many people who are appointed because of political connections turn out to be excellent judges, and we should not have a system where a person is excluded from subsequent nomination to judicial office because he or she was involved in politics. What we do not know is if there are good people that applied to be judges who, as they did know anybody in Cabinet or any Deputy, were overlooked and never got the opportunity of being promoted to the position of judge. For all of these reasons, the system needs to be changed.

We need a recommending body that 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, the Government has the final say. This is appropriate. Regardless of what system is in place or how it operates, the Government can disregard the list of candidates provided and appoint a candidate of its choosing. That is the scheme that currently operates under the Constitution. However, it needs to be changed and broadened to ensure that it is fairer and that the best people - they may be people who we do not know and who do not have connections - 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 which it believes would be the most suitable based on merit to be judges. For each position, it will recommend three people. The Government's scheme has the same provision. Under our Bill, however, the three will be ranked 1, 2 and 3. In no way does this 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 an expert body who it believes are the best people in a certain order.

See this speech in context