John Lahart (Dublin South West, Fianna Fail) | Oireachtas source

I welcome some friends from Ballyroan Men's Shed in Rathfarnham who are in the Public Gallery. I want to let them know that because I have welcomed them that their presence is etched on the Dáil record for years to come, and I hope they enjoy their visit to the national Parliament.

I want to join my colleagues in making some preliminary general points before moving on to detail. I welcome the opportunity to discuss the Bill. We know, as my colleague Deputy O'Callaghan said at the instigation of this debate last week, that the job of being a judge requires significant expertise and knowledge of various different aspects of the law, including common law, statute law and the general legal system. It is the function of judges to apply that law. In Ireland we can agree that our Judiciary, by and large, has stood the test of time, and we can stand by our judicial system. It is true too that there have been very occasional horrific miscarriages of justice that have had to be remedied by the political system, and the political system has shown the flexibility to do that over time as well.

Pervious speakers have at this stage well rehearsed what we on this side of the House see as the flaws contained in the Bill, and also the speed with which the Government has attempted to get it through the Dáil. The priorities of the Minister for Transport, Tourism and Sport, are curious. Deputy Michael McGrath mentioned the Rugby World Cup 2023 Bill 2017 and other priorities in legislation that have been overlooked by the Government in its attempts to pass this Bill before the recess. The Rugby World Cup 2023 Bill 2017, which is a true priority of some urgency for this Government, for the country and for the Parliament, was relegated to second place behind this Judicial Appointments Bill in the last few weeks. It says much about the priorities of Deputy Ross as Minister with responsibility for sport and tourism and for the development of sport and tourism in the country that he chose to be so tardy with the World Cup legislation, which is a prerequisite for Ireland's bid to host the Rugby World Cup in 2023, and that he prioritised this non-urgent Judicial Appointments Bill in its place.

We also know about Deputy Ross's form on the issue of the Judiciary, and indeed Deputy Michael McGrath adverted to it in his speech earlier. In a recent article in the Sunday Business Post journalist Elaine Byrne put it well when she said that the Minister for Transport, Tourism and Sport has always been obsessed about judges being politically appointed. She goes on to suggest that this is nothing new, and that, "Oireachtas records from the 1980s show that he went as far as sponsoring a Seanad motion seeking to introduce legislation to prevent a judge from even getting a pension". In my view, coming from the type of constituency that I represent, a diverse population, people from diverse backgrounds and communities and people from diverse economic and social backgrounds, I believe the Minister's and the Government's proposals have actually missed a golden opportunity. Far from the perception of judges belonging to a golden circle or indeed coming from an elite group in society, it is worth noting what we can from the details available. I agree with Deputy Ross that we ought to know more about our judges, including their professional, education and client backgrounds and whether conflicts of interest exist. In terms of the details that are available to us, a cursory glance at the details available publicly regarding the educational backgrounds of our Supreme and High Court Judiciary is interesting to note. The details of all of the judges are not available, but their school backgrounds are interesting, because it might run contrary to what the public generally thinks. Our existing Supreme and High Court judges come from a variety of educational backgrounds including Alexandra College, St Mary’s Christian Brothers School, Belfast, Presentation Brothers College, Cork, Drimnagh Castle CBS, Dublin, Terenure College, Blackrock College, and O’Connells CBS, Dublin. We know from Deputy Ross's website that he was educated at St. Stephen's School, Dundrum, Rugby School, Trinity College Dublin and the University of Geneva. That contrasts with some of the educational backgrounds of some of the judges. I look forward to the day when a judge in our Supreme Court or High Court or lower courts comes from my alma mater, Coláiste Éanna in Ballyroan, or St. MacDara’s Community College, or any community college, whether it is in Killinarden, Ballrothery, Old Bawn or Firhouse.

The Minister's Judicial Appointments Bill has no proposals that provide encouragement for those aspirants who come from disadvantaged backgrounds and who, regardless of how bright they are, could never hope to afford the cost of studying at the Bar or devilling for a year or two. The Bill misses the opportunity to promote the idea that, whatever your background or wherever you come from, or regardless of the school you attended, you could aspire to become a High Court or Supreme Court judge and while rigorously applying the law, also enrich the profession by bringing a rich tapestry of backgrounds to the Bench. The Bill does nothing to promote this idea or foster the idea of making the Bar and the legal profession, and thereby the Bench, more accessible to all strands and genders in society.

Recently Group of States Against Corruption, GRECO, reprimanded Ireland for not introducing in-service training for judges. The lack of a facility to give in-service training across a whole range of issues, including socio-economic background issues, to judges as they serve on the Bench is another missed opportunity in this Bill, as is the continued absence of an independent statutory council.

GRECO also rapped Ireland on the knuckles, which was again commented on by the same journalist in the Sunday Business Post, for failing to establish a code of conduct for judges. Deputy John McGuinness referred to this in his contribution last week. Politicians, down to the level of county councillors, are subject to the standards in public office legislation, which governs the receipt of gifts, third party contacts and so on. This is a live issue.

Turning to the Bill itself I note, as others have done, that the Bill proposes the retention of the Attorney General as both a member of the judicial appointments commission and as a member of the Cabinet that makes the final decision about the appointment of a judge. Colleagues have rightly pointed out that this is clearly a conflict of interest and runs counter to Deputy Ross’s stated objective of de-politicising the appointments process. The biggest flaw in the proposals is that, regardless of the names proposed by the newly proposed appointments commission, the Government may disregard the recommendations and decide simply to make their own appointments, as they can do currently. Fianna Fáil’s alternative would ensure that the successful nominees, as decided by the judicial appointments commission in our model, would be ranked in order of those best suited in the opinions of the judicial appointments commission. If the Government failed to apply the ranking system in the appointment of the judges it would be required to explain publically its decision.

There are consequences to this Bill passing. The process moves away from an interview-based process to an initial paper-based process, in the sense that candidates submit their curricula vitae to a committee that is going to be dominated by non-judicial appointees, many of who will have no familiarity with the law. It is curious that there is a provision in the Bill for the appointment of consultants or advisors in the event that the commission is unable to make a decision. What the Minister is proposing is taking current expertise and replacing it with non-judicial or lay expertise. If the members of the new commission lack the expertise to make an appointment they can appoint consultants to assist them in making the appointment.

In this regard section 14(7) states:

The Commission may as it considers necessary to assist it in the performance of its functions or the functions of any of its committees—

(a) enter into contracts or arrangements with any person, and

(b) with the consent of the Minister, appoint consultants or advisers.

Section 14(8) states:

Any contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (7) may, for the purpose of a relevant committee performing the function referred to in section 11(2), enable the person, consultant or adviser to—

(a) advise and assist the relevant committee in its consideration of applicants at a preliminary stage in the course of the selection procedures, and

(b) provide an evaluation or an assessment of an applicant’s suitability for appointment

We are replacing the simple appointment of judges who have the relevant skill and expertise with that of consultants, to fill the gap the lay members will not be in a position to fill.

I could make other points but I am sharing with Deputy Brendan Smith and I defer to him.

See this speech in context