Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I welcome the opportunity to contribute to the Judicial Appointments Commission Bill 2017. First, I want to address the level of priority, and the amount of Dáil time last week and this week, being given to the Bill. Others may criticise us for wanting to speak on the Bill but that is our right. The Government has prioritised the Bill in Government time. It comes at the expense of legislation in a host of other areas which have greater priority, for example, a report was published earlier this year on motor insurance. At least six different Bills will be required to give effect to those recommendations. Where are they? We have not seen them. Why would the Government not prioritise an issue such as that before the summer recess so that progress can be made on issues that really matter to people's day to day life? The Government's legislative programme commits it to introducing a Bill to establish a mortgage arrears court. Last year during the negotiations between the Independents and Fine Gael mortgage arrears experts were in and out of Government Buildings, spokespersons were out talking about what the Government was going to do to help people in mortgage arrears. It was going to do the devil and all. We have seen absolutely nothing. Where is the legislation to help families protect their homes and deal with mortgage arrears?

I congratulate the Minister of State, Deputy Stanton, on his reappointment. I know he is personally committed to dealing with gambling control. I have raised it with him before and I know he is considering various options. We have been kicking that issue around for a long time yet no legislation has been brought to the floor of the House. I do not know if the Minister of State is competing with other Ministers for Dáil time or is it a case that the legislation is not ready yet? We know this problem destroys lives and warrants the priority of this House but it is not getting attention.

A final example is the vulture funds. We hear time and again Government spokespersons talking about the need to protect families, and small and medium enterprises, SMEs, from vulture funds yet there has been no legislation whatsoever. The Government's efforts to deal with them were half-baked. It introduced the Consumer Protection (Regulation of Credit Servicing) Act 2015 which requires the intermediary to be regulated but not the owner of the loan. No priority is being given to that. I can only conclude that a great deal of time is being afforded to this legislation because it is a personal vanity project for the Minister for Transport, Tourism and Sport, Deputy Ross. Unfortunately, Fine Gael is playing ball with him. Perhaps that is the price of power. That is the only conclusion I can reach on this issue. We know it has been a personal crusade of the Minister, Deputy Ross, for several decades. I do not think the system is as fundamentally broken as it is often said to be. Reforms are undoubtedly required. I support the legislation introduced last year by our justice spokesperson, Deputy O'Callaghan, which would result in more meaningful reforms in the area of judicial appointments.

While it runs counter to many of the Minister, Deputy Ross's public utterances, the Judiciary has served this country well and in the overwhelming majority of cases the appointments to the Bench by successive Governments have resulted in high calibre judges being appointed and they have by and large performed their duties with distinction. That should be said lest the impression be given that our justice system is so broken that it is utterly dysfunctional as a result of the quality of the judges appointed hitherto.

One issue which has dominated the debate on this legislation is what the Government characterises as the lay or non-lay majority. We would say the question is whether to have a judicial or non-judicial majority and Deputy O'Callaghan's Bill provides that neither judicial nor non-judicial members of the commission would be in the majority. The Government conflates the legal membership of the commission with judges to say that we seek a judge-based majority. That is not what is set out in the Bill and it is an important distinction.

The commission should rank the candidates. We respect the supremacy of the provision in the Constitution that it will remain a matter of course for the Government of the day to recommend the appointment of certain persons to the Bench and the President gives effect to that by making the formal appointment. We believe there should be an onus on the Government to consider recommendations from the commission which have a list of candidates in a certain order, based on the criteria set out in our legislation. If the Government seeks to deviate from that, or to appoint somebody, which is its right, who has not been put forward by the new judicial appointments commission it would have to give a reasoned opinion to back up that position. That is an important reform because it introduces a level of accountability and transparency that is not in the system. We ask the Government to consider that reform if the Bill passes Second Stage and makes its way to the Select Committee on Justice and Equality. We hope the Government will genuinely consider the amendments tabled by Deputy O'Callaghan on behalf of Fianna Fail on that issue.

The people who know best whether somebody is qualified and has the appropriate skills to serve as a judge are judges themselves and others who have the relevant experience. Under our Bill there would be 12 members of the commission, including the Chief Justice, who is President of the Supreme Court, the Presidents of the Court of Appeal, the High Court, Circuit and District Courts. They are what we would regard as judicial members. There would be seven non-judicial members so it is not the case, contrary to what people have been seeking to portray, that we wanted a majority of the commission to be comprised of judges. That point has been lost during this debate. Of the seven non-judicial members there would be representatives of the Bar Council, the Incorporated Law Society, the Citizens Information Board, which has direct contact with citizens, Údarás um Ard-Oideachas, the Competition and Consumer Protection Commission, Irish Human Rights and Equality Commission and the Free Legal Advice Centres, FLAC. Such a composition would strike the correct balance and result in the best possible recommendations being made.

We have also set out the criteria that would need to be met. Anyone considered appropriate for appointment to the Bench needs integrity, independence of mind, moral courage, a high level of intellectual skill, sound temperament, common sense, impartiality, objectivity, fairness, equanimity and composure. We also believe that persons recommended by the commission to Government for appointment should be interviewed by members of the commission and this is a reform we will bring forward on Committee Stage.

The Government should be able to disregard whatever legislative based system is put in place because of the supremacy of the provision in the Constitution that it is ultimately the prerogative of the Government to recommend to the President the appointment of certain persons to the Bench.

Through legislative reform, we need to put in place the best safeguards possible. The package of measures we have brought forward strikes a better balance than the proposals set out in the Government's Bill. They do so by providing for the appropriate expertise on the commission, ensuring that the individuals who are going to be recommended to the Government be ranked, and providing that specific criteria be used by the commission in considering the suitability of individual candidates for appointment to the Bench. Those provisions are laid out in our legislation. Candidates would need to be interviewed and, should the Government decide not to proceed with the recommendation of the commission, it would need to provide a reasoned opinion in respect of that decision.

There is a need to comment on the reactions of and submissions made by those currently serving on the Bench. They should not be dismissed. They are the people who, day in, day out, ensure that our justice system functions and serves the needs of our citizens. When the Association of Judges in Ireland suggests that the proposals put forward by the Government are seriously flawed, we need to take it seriously. I agree that the rationale for a lay majority and a lay chairperson has not been explained. I have not seen any overarching rationale set out by the Government for such a provision.

The judges also expressed a concern, which we share, that no member of the District Court or Circuit Court is to be a member of the commission, even though those courts together deal with the overwhelming majority of cases although, of course, the vast majority of citizens would hope to go through their entire lives and never have interaction with the courts. The Government, however, has seen fit to propose a membership structure for a judicial appointments commission that gives no expression to that and no recognition to the expertise of existing members of the Judiciary who are serving in those courts. That is a major omission from the Government's legislation which needs to be rectified.

The Chief Justice, Ms Justice Susan Denham as well as the presidents of the Court of Appeal, High Court, Circuit Court and the District Court have sent correspondence to the Taoiseach expressing their concern at the legislation proposed by the Government. They are quoted as having stated that the proposals, in their view, would have serious implications for the administration of justice. The Government seems quite prepared to brush all that aside. I have not seen any proper account taken of those remarks in any comments made by the Minister, Deputy Ross or by anyone serving in the current Government.

The points made by Elaine Byrne in the Sunday Business Postlast weekend also need to be brought to the floor of the House. She drew attention to the Council of Europe Group of States Against Corruption, GRECO's fourth evaluation round report on Ireland, "Corruption prevention in respect of members of parliament, judges and prosecutors". This is a compliance report in respect of Ireland published in November 2014. In the last week or so, the council published an update on this report. The update sets out a series of recommendations which would improve the governance environment for members of parliament, judges and prosecutors. The most recent report, which assesses the 11 recommendations made in 2014, finds in essence that three recommendations have been dealt with by the Government. A number of the recommendations relate specifically to the Judiciary.

Although the Government has given absolute priority to legislation governing how judges are appointed, this has been at the expense of critically important issues highlighted in this report. For example, the issue of the judicial council is one which Deputy O'Callaghan has raised in this House a number of times with the Minister. GRECO recommended that, with due expedition, an independent statutory council be established for the Judiciary and that it be provided with adequate resources and funding for its organisation and operations. GRECO concludes that this recommendation has not been implemented. The Government provided the update that the Bill was being worked on and was on the way.

Back in 2014, GRECO recommended that a system for the selection, recruitment, promotion and transfers of judges be introduced. The Government's response is this Bill. It is interesting to note, however, that in GRECO's comment on the Bill, it says that the council encourages the authorities to pursue their reform efforts in close consultation with the Judiciary to the extent feasible and looks forward to being further informed on the results of these efforts. Given that the Judiciary has had to break ranks and speak out publicly through a press release and correspondence with the Taoiseach, I do not see how one could conclude that the Government has brought forward these reforms following close consultation with it. If such consultation has in fact taken place, its outcome has been a Government decision to completely disregard the views of the Judiciary in respect of the composition of the commission in particular.

GRECO also recommended that an appropriate structure be established, within the framework of which questions concerning constitutional safeguards of the Judiciary in connection with employment conditions are to be examined, again in close dialogue with judicial representatives, with a view to maintaining the high levels of judicial integrity and professional quality in the future. I acknowledge that is not an easy matter to deal with. GRECO has, however, stated that there has not been any implementation of this recommendation by the Government.

GRECO further recommended, very importantly, that a code of conduct for judges be formally established, including guidance and confidential counselling in respect of conflicts of interest and other integrity-related matters, gifts, recusal, third party contacts, the handling of confidential information, etc., and that such an instrument be connected to an accountability mechanism. Again, GRECO has concluded that this 2014 recommendation has not been implemented by the Government. It further recommended that dedicated induction and in-service training for judges be institutionalised and adequately resourced while respecting the independence of the Judiciary. Again, GRECO concludes that this recommendation has not been implemented. In the context of this Bill, the recommendations set out by the 2014 GRECO report have not been addressed by the Government. The provisions that are advancing just happen to be the subject matter of some attention by the Minister, Deputy Ross over the course of his political life and indeed in the course of his work as a Minister.

We will never know the truth as to whether any deal was done between the Taoiseach, Deputy Leo Varadkar and the Minister, Deputy Ross on the Sunday evening two weeks ago when it became known that the Government was seeking to press ahead the following morning with the formal appointment of Ms Justice Máire Whelan by the President. It does stretch the bounds of credibility and goes beyond my capacity to believe that all of this happens to be a coincidence. The Government is attaching enormous priority in its legislative programme to the passage of this Bill against that backdrop.

I welcome the fact that the Bill is not going to become law before the summer recess. The summer recess provides a window of opportunity for the Government side to reflect on what has been a very productive and informative debate. We have to reflect on the core objective. Ultimately, the citizens want a justice system that serves them well. They want to ensure that the judges sitting on the Bench have integrity and are genuinely independent and competent, and that they have the appropriate skills, expertise and qualifications to perform their function to the highest standards. It is our considered view within Fianna Fáil that the proposals we have put forward, were they to be adopted by the Government and used as a means to amend the Bill, would represent significant progress in the manner in which judges are appointed.

We will engage in detail throughout the full distance of the legislative process for this Bill, and we hope that those reforms that we are proposing will be taken on board by Government.

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