Fiona O'Loughlin (Kildare South, Fianna Fail) | Oireachtas source

Increasingly in this country we have a society that is out of sync and the judicial system is hugely important. The bedrock of our democracy is the rule of law, which means that we must have an independent Judiciary. We should live our lives based on the Constitution, but the Constitution is what the judges say it is; therefore, the Judiciary is the safeguard of the people, our liberty and property. I have often heard it said that for society to succeed, we need brave prosecutors and fearless judges. Therefore, how judges are appointed is hugely important in our democracy.

While Fianna Fáil fully believes in the need for reform of the judicial appointments system, we believe the new Bill published by the Government is deeply flawed. Fianna Fáil, in particular Deputy Jim O'Callaghan, our spokesperson on justice, has proposed legislation to establish a judicial appointments commission which would be fully independent of the Government and make recommendations to it based on an independent assessment of the merits of applicants for judicial office. With its proposals for a lay majority and the downgrading of the Chief Justice's position, the Government has let the Minister, Deputy Shane Ross, drive forward a spurious agenda which risks undermining the independence of the Judiciary.

I wish to make some general points about why we need reform and to set out some of the good reasons for it. The reason the judicial appointments process needs to be reformed is to ensure people are appointed to judicial office based solely on merit, not on political patronage. For that reason, Fianna Fáil proposed legislation seeks to establish a judicial appointments commission that would be fully independent of the Government. The commission proposed by the Government will not allow for such an independent process of assessment. Among its faults is that it will require the Chief Justice to sit on a commission that she will not chair. That is indicative of the disrespect the Government has for the Judiciary. A proposal that the Taoiseach sit on a committee but not be its chairman would be dismissed out of hand by the Government. One could ask what is different in this case.

The Bill also excludes the Presidents of the Circuit Court and the District Court from full membership of the commission. It is also recommended that the majority of the commission be lay members, namely, persons who are neither judges nor lawyers. The 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 on which to assume that judges and lawyers, if in a majority, will have a negative influence on the commission. It would be considered remarkable if surgeons in hospitals were selected by a panel, the majority of members of which had never carried out surgery, nor even worked in a hospital.

The Bill proposes that the three persons recommended by the commission not be ranked in order of merit. The failure to do so defeats the entire purpose of having a commission that will seek to recommend the best candidate. It is regrettable that the proposals put forward by the Government are not for the purpose of achieving genuine political reform but are instead designed to appease one member of the Government whose proposals in this area are ill considered and deeply flawed. That is evident in his announcement that Stepaside Garda station was to be one of the six Garda stations to be reopened at a time when there was no mention of the other five. Fianna Fáil remains committed to achieving reform in this area, as outlined in our Judicial Appointments Commission Bill.

I will now turn to weaknesses in the current system. A weakness is that when a large list of names is presented to the Cabinet, in fairness, most Ministers do not know how to go about choosing one person from a list of 24 to fill a District Court position, for example. There is no reason politicians should be aware of who is the most suitable or best candidate. State papers from 30 years ago published in the new year included a record of Alan Dukes stating, when Minister for Justice, that he did not know who was the best candidate or who should be selected to be a judge. He said he felt it was a matter primarily for the Attorney General. In fairness to members of the Cabinet, most of them do not know who are the most suitable candidates and it is unfair to put that pressure on the Government when it must be completely separate from the judicial process. If RTE was appointing a new director general, it would follow the process of setting out the selection criteria and a selection body would then identify an individual to be be recommended. The Cabinet could disagree with the recommendation made, but, in general, it would accept it.

It is true that people who have political connections are at an advantage if their names are on the list which goes to the Cabinet. It is often said canvassing should be prohibited and I repeat that call. However, it is a fair point that many who are appointed because of political connections turn out to be excellent judges. We should not have a system under which, because a person is involved in politics, he or she should be excluded from subsequent nomination to judicial office. What we do not know is whether good people who applied to be judges were overlooked and never got the opportunity to be promoted to the position of judge because they did not know anybody in the Cabinet or any Deputy. For all of these reasons, the system needs to be changed. We in Fianna Fáil are recommending a body that could identify who it believed would be the best person to become a judge. We should have a recommending body that would rank individuals based on their suitability for the job.

Under the Constitution, as is appropriate, the Government has the final say. Regardless of what system is in place or how it operates, the Government can disregard the list of candidates provided by the Judicial Appointments Advisory Board and appoint a candidate of its choosing. That is the system that operates under the Constitution. However, it needs to be changed and broadened to ensure it is fairer and that the best people will have an opportunity to be considered and appointed.

The Fianna Fáil Bill proposes that the names of those considered to be the most suitable candidates to be judges, based on merit, be put forward. For each position, the commission would recommend three people. The Government's scheme includes the same provision, but under our Bill the three candidates would be ranked. In no way would that offend the constitutional prerogative that rests with the Cabinet. Under neither scheme would the Cabinet have to opt for anyone on the list. However, there would be a benefit in the Cabinet being told by a body with expertise that it believed the following were the three best people in a certain order.

The membership of the commission is of the utmost importance. We must consider who would be best qualified to recommend candidates. The people who know are generally judges and others with experience. Interestingly, the Fine Gael-led Government has adopted - hook, line and sinker - the language of the Minister for Transport, Tourism and Sport, Deputy Shane Ross, which is all about lay people and non-lay people. It is offensive to judges that under the Government's scheme non-lay people are described as being judges and lawyers. Judges are not practising lawyers. They were previously lawyers. It is wrong and misleading of the Minister, Deputy Shane Ross, to give the impression that judges and lawyers should be regarded as belonging to the same group. We should get away from that impression.

Under Fianna Fáil's scheme under which there would be a commission of 12 members, there would be five judicial and seven non-judicial members.

The seven non-judicial members will be representatives of the Bar Council, the Law Society of Ireland, the Citizens Information Board, which has direct contact with citizens and knows their needs, An tÚdarás um Ard-Oideachas, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission and the free legal advice centres, which provide exceptional advice to citizens of limited means. As I am running out of time, I will rest my case.

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