Brendan Smith (Cavan-Monaghan, Fianna Fail) | Oireachtas source

This Bill is all about internal Cabinet politics. It is about Fine Gael’s absolute and urgent need to placate the Minister, Deputy Ross, and to keep him sweet for the coming months. It is why we have been landed with this flawed and poorly constructed Judicial Appointments Commission Bill and it is why we are devoting, if not wasting, so much time on it.

The bitter reality is this Bill will not even achieve the objectives that its few champions, including those in Sinn Féin, claim for it. It will have long-term negative consequences for the public. As my colleague Deputy Jim O'Callaghan said, "In the opinion of Fianna Fáil, this legislation will have significant detrimental consequences. First, it will damage the quality of the justice administered by our courts. Second, it will politicise the appointment of judges to an even greater extent than currently. Third, it will establish an unnecessary and costly quango that will over-complicate what should be a simple process of recommending the 20 or 30 people suitable for judicial appointment each year".

That point will resonate with many outside this Chamber and is one that has not received sufficient focus in much of the public commentary and debate. The Fine Gael-led Government, and this is now a Government Bill, no matter how much some Deputies on the far side wish to deny it, plans to put in place a costly and elaborate commission, along with a judicial appointments commission office and a judicial appointments commission director. Gone are the heady days of 2011 when Fine Gael candidates, including the Taoiseach, were not only telling us that they were going to abolish quangos, they even drew up a list of 145 quangos that they were set to thrown on a bonfire. As we know, the bonfire did not burn for too long with what Fine Gael actually threw on it, perhaps because the previous Fianna Fáil Government had already done the job via the bord snip nua report. Whatever the reason, we now have the party that once stood on the platform of reducing the number of agencies and commissions because they are so costly and bureaucratic coming into the Dáil to propose creating an even more complex and costly apparatus to replace something that did the job for a minimal cost.

Approximately 20 people a year are nominated to judicial office. The existing Judicial Appointments Advisory Board did what was required of it, simply and inexpensively. Its board members met informally in an office. The board had a secretary. They examined the applications and they supplied names to Government. What this legislation proposes is to replace an uncomplicated process with a mini-empire staffed by individuals who will spend a lot of public money on trying to identify people suitable for appointment. As my colleague, Deputy Jim O’Callaghan, has stated here in this debate, what the Government is proposing is an astonishing waste of money and it is wholly unnecessary. It is creating an enormous and unnecessary quango to recommend individuals based on curricula vitae submitted for about 20 jobs a year.

Not only has Deputy O’Callaghan identified this problem with what the Government is proposing, he has identified and proposed a comprehensive alternative that is nowhere near as costly as the proposal before us today and which has the benefit of already having passed Second Stage. As Deputy O’Callaghan outlined in his Second Stage speech back in October 2016, the purpose of his Judicial Appointments Commission Bill 2016 was to try to improve the process by which members of the Judiciary are nominated and appointed. All of us here can surely agree that the abiding principle underpinning the nomination and appointment of judges must be that all recommendations and appointments are based on merit alone. Their appointment should be based solely on the fact that the Government believes they will make excellent judges who will be able to administer justice fairly and impartially and not because of any possible party political or ideological allegiance. This is a crucial principle and it is one that we can say that governments of varying political hues have adhered to.

This is not merely a matter of opinion, it is a demonstrable fact thanks to the work of three academics from the School of Law and Government in DCU. In their article, "The (not-so-surprising) non-partisanship of the Irish Supreme Court", they state: "Ireland is therefore a country in which we would expect partisan heritage to be reflected in judicial decisions. We analyse over 5,000 decisions of the Irish Supreme Court and despite rigorous testing we find no evidence of partisanship in decision-making". I could put this more succinctly, as Dr. O’Malley did in a tweet a few days ago, "Shane Ross TD thinks you can predict Supreme Court decisions on the basis of party affiliation. We tried. You can't".

As Fianna Fáil outlined in our Judicial Appointments Commission Bill 2016, there is a clear case to be made for both reforming the current system, which was established in 1995, and expanding upon it. Whereas the existing Judicial Appointments Advisory Board, JAAB, simply gives advice to the Government on judicial appointments and gives the names of seven people to the Government for each judicial vacancy, it does not rank the individuals in terms of who it believes is the best and does not identify the best candidates for appointment. What Deputy O’Callaghan’s Bill did, and what this piece of legislation before us fails to do, is to put in place a clear and workable scheme where the Commission can identify the best candidates for appointment to the Judiciary and then recommend, and rank in order of preference, three persons for appointment to each vacant judicial post. It also allowed the Commission to make recommendations for nomination to the important positions of Chief Justice and presidents of the courts. What Fianna Fáil proposed in our 2016 Bill was constitutionally sound as the power to nominate judges remained solely with the Government. The Government alone would still make the decision, either to accept any one of the three names submitted to it or to pick none of the three, with the proviso that it publish a reasoned decision for not having done so on the Minister’s website. There is no such provision in the Government’s Judicial Appointments Commission Bill 2017. This Bill would allow the judicial appointment controversy that happened just three weeks ago to happen again.

When Fianna Fáil’s 2016 Bill was debated here last October it received widespread praise and approval, including from Sinn Féin, but not for the first time in Sinn Féin, political expediency and point-scoring trump doing the right thing. The Government should have progressed the Fianna Fáil legislation but, as with so many other issues and crises sitting in the Government’s in-tray, it played petty partisan politics. It ignored the comprehensive reform package that was before it and had such widespread support and it did nothing. It did not just do nothing; it played petty old-school politics and scrambled around looking for whatever arcane or obscure pretence it could find to disregard what we had produced by declining to supply a money message. Consider the irony of that stroke for a moment. The Government decided to reject a Private Members’ Bill which would reform the system of appointing judges at a minimal cost, claiming that it involved a potential charge on the Exchequer, just so it could allow its own Bill, which will involve a considerably greater charge on the Exchequer, to advance. That money message stroke gives the game away.

My colleague, Deputy James Lawless, drew attention during last week’s debate to the number of references to judicial independence, respect for the Chief Justice and respect for the State in John M. Kelly’s seminal legal work, The Irish Constitution. Deputy Lawless specifically highlighted John Kelly’s warning that any attempt to interfere with the system of judicial appointments would be unconstitutional and reminded us that the late John Kelly had previously represented the Dublin South constituency, now partially represented by the Minister, Deputy Ross.

The skills and talents we require in our judges are considerable. We need judges who have a very good understanding of the law, but who also have integrity, independence, impartiality, objectivity, courtesy, composure and an ability to communicate, and we need lawyers to apply to become judges. Not every good lawyer will make a good judge, but one cannot be a good judge unless one is a good lawyer. To find those good lawyers and good judges we must have a system that can fairly, transparently and expertly identify the best candidates. That is not what the 2017 Government Bill offers us, but it is what the Judicial Appointments Commission Bill 2016 offered and we are showing remarkably poor judgment in not pursuing it.

That is the legislative measure the Government should have been putting thorough the Oireachtas. When I travel through my constituency of Cavan-Monaghan, what people talk to me about in relation to the Department of Justice and Equality is the need for additional Garda resources for divisions such as ours where Garda numbers have declined considerably during the years. I appeal to the Minister of State, as I did to the line Minister in the Department, to ensure additional resources are provided for areas such as Cavan and Monaghan where we have huge issues. People tell us we should give the Garda the resources it needs to deal with both urban and rural crime. The time being spent on this legislation in the Legislature is ridiculous.

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