Catherine Connolly (Galway West, Independent) | Oireachtas source

I take that back. At the point when it went up, his comment was that it stank to the high heavens.

I am not here to score political points. I am here to outline is that each Government has absolutely failed to learn that we need to change the process for appointing judges so that it is not opaque. I will stay with Ms Justice Denham for the moment. In paying tribute to the media, she said:

I would like to thank the journalists who have reported on the work of the Supreme Court during my tenure as a judge of the court, and as Chief Justice. For the rule of law to flourish in a democracy, an understanding and knowledge of what happens in our court is required.

The last sentence is significant. I would add to it by saying that for democracy to flourish, what we need is a knowledge of how institutions work, in particular governments and the Executive and how they appoint judges. It seems to me that there is no openness and accountability in the Minister's speech today or in the manner in which the former Attorney General was made a justice of the Supreme Court. I have no wish to comment on the merits or otherwise of that appointment. I am commenting on the process. It seems to me extraordinary that one of the paragraphs in the Minister's speech refers to the fact that it was practice to leave a Supreme Court vacancy.

I find that extraordinary given that the Chief Justice wrote in February of urgently making the appointment.

We seem to have many parallel systems of appointment. We must remember that back in 1995 the Act was brought in to bring some measure of reform to the appointments system. The JAAB process, through which the former Attorney General went, was one route. We also then had judges who were interested, and they send their expressions of interest through the Attorney General or the Minister for Justice. The Minister has not clarified whether it is the Minister for Justice who receives those expressions of interest from the sitting judges or the Attorney General. If it is the Attorney General, has anybody asked if there is a conflict of interest when, on the one hand, a sitting Attorney General wants to become a Supreme Court justice while, on the other, he has the applications from the sitting judges who are interested in the position? Has anyone thought about that or how that conflict is handled, if there is one? To me, it has all the appearances of a conflict of interest. The Minister has not dealt with that issue.

The third system of appointment involves sitting judges who have not come forward but whom the Government is allowed to consider. What is the procedure for looking at that? Does it not strike the Minister that this is not an open and accountable system in a republic and a democracy? We cannot call ourselves a republic and a functioning democracy if we do not have an open system.

Following the debacle of the previous Attorney General being appointed to the Supreme Court - again, I am making no comment on the person concerned but commenting only on what happened following that appointment, and Deputy Howlin has referred to this - I understand a review was carried out by Martin Fraser. Following that review, a committee was set up, parallel with the JAAB made up of the Chief Justice, a layperson and other distinguished people. We are not aware of who was appointed, how they were appointed or how the committee functioned. It appears, however, to have functioned well and to have been instrumental in appointing a number of applicants to the higher courts. Where did that system go? Was the Minister told about it?

That committee is the fourth part of the jigsaw. The four parts are the JAAB; the notices which go straight to the Attorney General or the Minister, a matter that nobody has clarified; the sitting judges who the Government can pick; and this advisory committee which was set up following the previous debacle and in relation to which the Taoiseach, Deputy Micheál Martin, said it stank to high heaven. What happened to that set-up? It would be helpful if that was outlined to us today. It would be helpful if the Minister stated the Government could no longer stand over this system. This is the way this has always been done but we can no longer go on like that because we are in trouble in Europe. We are pointing the finger at other countries, and rightly so, but we need to look in the mirror first. We must look at what the Council of Europe, through its organisation, GRECO, has highlighted repeatedly.

The irony of all of this is that we do not have a system in place yet regarding complaints about judges' behaviour. Much of the information we have here is by default because we did not set up a fair and just system for complaints concerning judges, as happened in respect of the former Attorney General, now Supreme Court Justice, Séamus Woulfe, and his attendance at golfgate. We had no procedure in place to deal with that matter, so we went back to a former Chief Justice, set up an informal system and a total mess ensued in that regard. We learned from the openness and accountability of the printed transcript certain facts about how Séamus Woulfe was appointed. That is ironic in itself. I hope it is the start of a stronger light being shone in this area and of reform.

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