Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I am delighted to hear that Deputy Daly has made herself available for judicial appointment. I hope the Minister will amend the legislation to make an exception for her. She would make an excellent judge.

This is the core of the legislation we are discussing. Sometimes in this House we discuss issues which are peripheral and probably are not the crux of the legislation. We have had days of debate about the make-up of the commission, whether there should be a lay majority or lay chair. They are important issues. I argued on them and there is a division in the House on them. The most important part of the legislation is what actually happens when individuals have been recommended by this commission or board for judicial appointment. The flaw in the whole process, and this was something that people saw from the outset – the judges put in a submission in respect of this some years ago – is that under the JAAB, legislation the board has to nominate approximately seven people for each position. There is a large number of people who can be nominated by JAAB, and that goes to Cabinet where there is huge discretion to choose the successful applicant. The judges argued in their submission that the number should be narrowed so that the body that has expertise would identify three individuals who could be recommended to Government. I do not know whether the judges argued that it should be ranked, and if they did, we agree with that.

There was also a recommendation made by the judges, with which I disagree, that when names were being given to the Cabinet an outstanding candidate could be identified. I thought that was an unwise proposal because this being Ireland there is no doubt that people would be able to identify who was nominated as an outstanding candidate. There would be two categories of judge, the "outstanding candidate" judges and the others. It makes no sense to go through this process unless at the end of it the advisory board or the commission we are establishing has the ability to rank individuals and to limit the number recommended to Government.

I am pleased the Government is prepared to accept that and recognises there has to be a ranking system, otherwise the whole process would be fairly pointless. The Constitution is very clear that judges in this country are nominated by Government and appointed by the President. Nowhere in the Constitution is there any reference to JAAB, or any expert commission. The fact that there is no reference in the Constitution to such statutory bodies does not mean we should not try to provide Government with expertise in respect of who are suitable and the most eligible people for appointment to judicial office.

If the Government does not like the three ranked individuals at the end of the process it can decide under the Constitution it is not going for any of them but it is going to appoint another individual. There has to be some explanation for that. On Committee Stage, and in legislation Fianna Fáil introduced, we suggested that there be a requirement for an explanation if the Government decides to go off the list. It has happened on only two occasions since 1995 and in the appointment of the JAAB. It is perfectly acceptable for the Government to do that.

Deputy Clare Daly raised an interesting point. She said that we set out eligibility for judges, that we say a person must have 12 years' experience and must be a solicitor or a practising barrister. She asked why then can we not go one step further and say that a person must be recommended by the Judicial Appointments Advisory Board. My view remains, however, that this would constitute an infringement of the Government's decision making whereby it can decide who it wants to appoint as a judge. Obviously, factors such as eligibility by way of age or by way of legal qualification are not for the purpose of fettering a Government's discretion when it comes to selecting an individual. They are just standard eligibility requirements that a person cannot become a judge unless he or she is a lawyer of certain years standing.

If we were to include another provision that a person has to be recommended by the Judicial Appointments Commission, it would constitute the fettering of the Government's decision making process. I see them as being viewed differently, although it is an interesting point.

Another aspect of these amendments concerns the senior appointments. It surprises me when I hear the Government wants to put forward this proposal in respect of the senior appointments. I have been saying for a long time here that these are advisory bodies and they require expertise. The reason I say that having a lay majority is not appropriate is that expertise is required - this is not a regulatory body. The Government disagrees and says lay people should dominate and run it, but when it comes to senior appointments, it says that it does not want the lay people to dominant and that it only wants only one of them. It wants the Attorney General and one other judicial figure. Where is the Minister, Deputy Ross, when it comes to this cartel, as he would criticise it? I made a decision on this on Committee Stage. It is a borderline call. I am going to stick with the decision I made on Committee Stage.

It must be infuriating for the President of the Court of Appeal, about whom I read in one of the today's newspaper. He said he requires judges for the Court of Appeal to operate. We have been discussing for months in this House the theory of how we should appoint judges and whether we should appoint them on the basis of their recommendations by a commission may up of lay people or non-lay people. It must be infuriating for him but it is more infuriating for the general public in that if a person is appearing before the Court of Appeal, he or she cannot get his or her case heard until 2020. Rather than messing around here trying to appease another colleague of the Minister's about the process that will be put in place for the purpose of the theoretical appointment of judges, would he do his job and appoint some judges to the Court of Appeal? Three judges of the Court of Appeal are gone and I believe it is down to six. It cannot function properly. The reason there are delays in the system is that the Government refuses to nominate people for appointment.

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