Seán Sherlock (Cork East, Labour) | Oireachtas source

-----in respect of the position that Sinn Féin has adopted on this matter.

It is very rarely that I agree with Deputy Wallace but he is right when he says this is poor legislation designed to keep the Minister, Deputy Ross, on board. If we really examine the nature of the legislation, in his assault on official Ireland, the Minister, Deputy Ross, rails against insiders and cronyism and he has always had two targets in mind, with one being the Civil Service and the second being the Judiciary.

That is what is baffling about this cunning plan of his. Ironically, in order to "reform the Judiciary", the judges will ultimately be appointed on the advice of senior civil servants and their placemen. It is precisely what the Bill now proposes. There has been much comment on how the Bill will reduce political and judicial input but there is no attention at all on who will provide the substitute input. In our rush to depoliticise the judicial appointments process, we are being asked to put a very significant part of it into the hands of the Public Appointments Service.

What is the Public Appointments Service? It is a body consisting of five senior career civil or public servants, including two departmental assistant secretaries, the former chair of the Northern Ireland Civil Service commissioners and three personnel consultants. I do not see why the senior Civil Service should have any role in appointing the judges, even at the remove of appointing those who will recommend the appointments. Let us be realistic about this. The State in its various guises is by far the biggest consumer of judicial services and whereas politicians come and go, our senior civil servants – the permanent administration – are daily at the receiving end of adverse judgements and rebukes in our courts. Decisions are overturned, schemes are upset and spending plans are thrown into disarray by court decisions.

The major differences on the bench are not those between judges appointed by different Governments. We all know that there is no pattern at all of Fine Gael judges defending their own team and having a go at Fianna Fáil Governments or vice versa. Neither is the major difference on the bench one between those of a liberal or a conservative disposition. The major differences are between those judges who are disposed to toe the line and those who do not.  It is between those who, from the perspective of the Executive branch of Government, know their place and those who do not.

The judges have two basic tasks. One is to do justice in disputes between individuals and the other, perhaps more important, is to curtail the power of the State and its agencies and to confine public bodies to the rule of law; in short, it is to bell the cat. The senior mandarins who shape the future of our Civil Service should not have the same sort of say in shaping the future of our Judiciary. The amendment that speaks to common sense and good legal practice is the Fianna Fáil amendment. It strikes a good balance between lay persons and pre-existing members of the Judiciary. It is a little grubby that we are trying to make law here on judicial appointments and it has become the subject of a political deal between the Government and Sinn Féin. The Government and Sinn Féin should publish the content and elucidate on and enlighten us as to what went on between the two parties when they arrived at this deal.

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