Marc MacSharry (Sligo-Leitrim, Fianna Fail) | Oireachtas source

With no disrespect to the Minister of State, it is unfortunate that the line Minister responsible for justice issues has not taken the time to be here for the entirety of the debate. We are not talking about a simple amendment Bill with no major consequences and it behoves the Minister to take the time to be here to listen to all of the points being made.

Before getting into any of its detail, I note that the Bill is indicative of the tail wagging the dog in government. I would love if the Minister for Transport, Tourism and Sport, Deputy Shane Ross, was here because I do not like to speak about him when he is not in the House. However, I had the opportunity to launch many a Scud missile at him in the Seanad for many years. For 30 years in the Seanad he was the supreme leader and teacher when it came to hurling on the ditch. Having made the transition to the Cabinet, it seems that the other 14 members have caved in and happily allowed hurling on the ditch to be the fulcrum on which legislative change and improvements are to be brought forward.

When one considers the issues and problems facing the country, the haste with which this legislation is being brought forward following the appointment of the former Attorney General is not missed in any objective analysis. One cannot do a Stepaside Garda station on the Judiciary. One must consider the particular issue in the context of the closure of Garda stations in the rural areas across the country and the increase in rural crime. In the Acting Chairman's constituency one often sees difficulties where Garda stations are closing and the incidence of rural crime has increased. As a rural and regionally based Deputy, it galls me to see Stepaside Garda station reopening at the demand of the supreme hurler when there are probably quite a number of Garda stations, prisons and everything else within a short distance of where the Minister lives.

I had the opportunity around Christmas some years ago and before Deputy Shane Ross was a Minister to be driving in traffic. I came across him in the middle of the road at a set of traffic lights wearing a Santa hat and holding a banner calling for the reopening of Stepaside Garda station. It is great to see such initiative and colour as the foundations on which serious legislative change is considered by the Government as a whole. Given that Fine Gael in government in 1995 set up the current arrangement, it was unexpected that Santa Claus would be the man to pull it asunder and dig up the pitch. As I said last week in another debate, it is certainly understandable that at times politicians will play the man and the ball, but why we would seek to dig up the pitch is beyond me. That is what the Minister is doing with the support of Fine Gael and other members of the Cabinet. In the circumstances, it is no surprise the Minister for Justice and Equality is seeking to duck out of the debate at this time.

I hope the Minister, Deputy Shane Ross, will not be playing the tune to which the rest of the Cabinet will dance in other matters. We heard examples from Deputy John Lahart of the consistency of the Minister's relentless and unfounded attack on the Judiciary which goes way back to an attempt to prevent the provision of a pension for a judge in the 1980s. Like breaching the Official Secrets Act on the first day of his appointment as a Minister, he could do with some training and expertise. One wonders whether he would have made the grade had there been a lay body to appoint Ministers. Certainly, he has always been a colourful contributor in putting forward good suggestions. However, it was often the case that the ones which grabbed the biggest headlines were not founded on best practice internationally or what was recommended here.

I turn to the issue of political lineage. Everyone, including the Judiciary, is in favour of reform of the appointments process for judges. We have our own proposals, into the detail of which many of my colleagues have gone and which would greatly improve matters. We gave them an airing in October 2016 and I am at a loss to know where they have been since. Certainly, the Government looked to stall or bury them. I am just guessing, but I imagine it did not envisage the antics of the Minister in bringing forward a Bill such as this to lacerate Fine Gael's own good proposals of 1995, albeit they needed reform. Everybody is looking for reform, including the Judiciary. I have often heard theories from the Minister and others about political lineage. This is a very small country of 5 million people. If we were to randomly pick 20 people on Grafton Street, we could trace a political lineage to each one, even if he or she was a floating voter from one election to another. Being from a small country, there is every likelihood he or she had a first cousin who was a councillor, a brother who canvassed for someone, or a mother or a father who was affiliated to a particular person purely on personal grounds who happened to go on to be a Minister. These grounds alone do not exclude people.

I used to live in the midlands, although I will not say where because I do not want to identify any of the people involved. I am reminded of a gentleman who regularly found himself on the wrong side of the law on foot of a substance and alcohol addiction. He never really had the means to secure legal aid, but some of the charitably minded local solicitors would see to his needs as he was brought before whichever court. One particular solicitor who used to look after him and do his best on his behalf became a judge after a number of years. While he did not sit anywhere near the midlands, he was back there as a visiting judge on one occasion. As he was mounting the steps of the courthouse, the particular gentleman was once again in trouble and approached him saying, "You have to help me today, I am in bad shape. I really need your assistance." The judge told him that he was very sorry but he could not speak to him because he was now the judge. "Better again" was the man's response.

11 o’clock

Those stories are good and entertaining but in practice it does not happen. There is not a single example, whether the judge was appointed by Fine Gael, the Labour Party, Fianna Fáil or anybody else in government - perhaps the Minister, Deputy Ross, once he gets stuck into his new process of appointments - where a decision by a particular court can be associated with a level of political expediency. It is wrong. We all want to push towards a reform agenda to make it a little better but to do it in this way is absolutely wrong. It is to follow a very populist agenda for what is to my mind, with regard to the examples I have given, a somewhat manufactured reason and manufactured view that if somebody happens to be linked to political support of some kind or other, he or she will sway the judgment in favour of a particular perspective. I do not believe that is the case.

I am conscious of making the point about the separation of powers. I am concerned with broader reform. At times in the interpretation of the law there are parameters within which there is no wrong or right decision by a court. They are still legal decisions. At times, courts can focus a little too much on the practice. It is something we can be critical of in the House in terms of the practice rather than the legislation. Interpretation of the law, in particular in civil law, family law and issues such as that, tends to follow the practice and what went on in previous cases, which may not always be the correct outcome. There is drift when that happens because there is a reliance not on the literal interpretation of the law but on the practice and outcome of other cases. As a lay person, perhaps I am completely wrong on this point and perhaps I prove we should not have a lay person picking judges. It might be something that could be looked at on another day in terms of considering law reform in general. The idea of having lay people involved in picking judges is an honourable one. There could be lay representation but to have a lay chair and a lay majority on this group would be crazy in the extreme. It makes it wide open to manipulation by particular interest groups that could take a long-term view and try to infiltrate the membership of these organisations. The example may have been given of pro-choice or pro-life groups using it to see if a particular applicant will take a harder view on custodial sentences versus non-custodial sentence and things like that. I am certain it is not the correct way to go. Over the course of the debate, colleagues from all sides have given a wide variety of examples. An example is surgeons being chosen by lay people who do not have medical expertise or lay people choosing people for senior accountancy positions in the Central Bank or for positions in the Office of the Director of Public Prosecutions. There are a variety of things that can be done to give the people a better sense of ownership of the process but a lay majority is not the way to go.

In terms of the establishment of a quango, I am not sure this is the correct way. Part 5, section 32 provides that "[t]here shall be attached to the Commission an office to be known as the Judicial Appointments Commission Office...which shall assist the Commission in the performance of its functions" and that "[t]he Office shall be funded by moneys provided by the Minister with the consent of the Minister for Public Expenditure and Reform." How much is that? Later during Leaders' Questions, I hope to raise an issue of children suffering from arthritis getting appointments in hospitals. This month, they are getting letters saying the hospital hopes to facilitate an appointment in March 2018. The reason is the hospitals do not have the resources. When we go to the Minister on such an issue under the Health Act 2004, the Minister kicks it back to the HSE, which then kicks it back to us by saying there are competing priorities. Yet we are rushing in here on the back of the hurler on the ditch to set up another quango. How much money will be required for this from the Minister for Public Expenditure and Reform? The Bill provides that "[t]he terms and conditions of service of a member of staff of the Office shall be determined by the Commission with the consent of the Minister". What are the terms and conditions? How much money will it cost? It further provides that "[a] member of staff of the Office shall be a civil servant in the Civil Service of the State." Is that people transferring internally? Will people be appointed from elsewhere? Section 33 provides that "[t]he Commission shall, following a selection process held by the Public Appointments Service, appoint a person to be the director (in this Act referred to as the “Director”) of the Office." How will that be done? What qualifications will that person need? It states the person will have the job for five years from the date of his or her appointment and that a director whose term of office expires shall be eligible for reappointment. It provides that "[a] person who is reappointed by the Commission in accordance with subsection (3) shall not hold office for periods the aggregate of which exceeds 10 years." That is fair enough. What costs will be involved in this? Have we looked at that? It is galling when we see the difficulties we have in health and many other issues when we are rushing to set up something else.

I thank the Minister of State for being here. The criticism is not of him but of his colleague, the Minister, Deputy Ross, who certainly should have been here.

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