Brendan Howlin (Wexford, Labour) | Oireachtas source

In introducing the lapsed Judicial Appointments Commission Bill 2017 into this House on the 27 June 2017, the then Minister for Justice and Equality, Deputy Flanagan, said "it has been a long journey to this point". I do not think the then Minister envisaged how long the subsequent journey was about to be, although there are those who would say he was among the first Ministers ever to filibuster his own Bill. The passage of that Bill was long and never achieved fulfilment.

It is a fact that, on occasions, the appointment of senior judges and, indeed, the mechanism for appointment itself has caused both political and public concern and disquiet. The current Judicial Appointments Advisory Board, JAAB, system is, in essence, as the Minister will know, the outworking of the agreed system for judicial appointments after the major disagreements that occurred between the Fianna Fáil-Labour Party Government in the mid-1990s on the appointment then of Harry Whelehan, Attorney General, to the presidency of the High Court. The Minister will be aware I, as a member of that Government, have some detailed knowledge of those events. In fact, I was one of two Labour Party Ministers, the other being the then Minister for Enterprise and Employment, Ruairí Quinn, and two Fianna Fáil Ministers - the Minister of State, Noel Dempsey, and the then Minister for Transport, Energy and Communications, Brian Cowen - who were appointed to come up with a new appointments system. We drafted and agreed a structure, which we brought to Government, was put into legislative form within a week and was published within two weeks as the Courts and Court Officers Bill 1994. As the Minister can imagine, it was a Bill that was done with a great deal of haste. Some would argue there was a political imperative about that rush. That Bill lapsed a few short weeks later, when that Government collapsed. A revised Courts and Court Officers Bill was introduced a year later, in 1995, which in essence is the structure we have used for the appointment of judges from then.

It has been argued the original 1994 Bill was required for political expediency, as I have said. I can attest that a political difficulty did give the Labour Party the opportunity to put forward a very significant reform agenda for a judicial appointments system, for which, I have to say, there was no great political appetite at the time. On the basis of the adage, "never waste a good opportunity", we thought we could actually bring about significant reform of judicial appointments. That is what we had envisaged in the 1994 Bill that was produced.

Having been a Member of both the 1994 and 1995 governments that proposed both the 1994 and 1995 Bills, I can say the pressure that was available to us in drafting the 1994 Bill to bring about reform with Fianna Fáil after the Harry Whelehan affair had to be rebuilt with the new Government partners, notwithstanding the agreement that was written into the new programme for Government to review the 1994 legislation and the backlog of cases that then, as now, existed in the courts system. I will leave it to others to determine which of the systems - the one set out in the 1994 Bill or the one set out in the 1995 Bill - was the better. The changes between the two were the result of inputs from our new Government partners, one of which was the Minister's own party. At its core, both Bills proposed the establishment of an independent screening board to recommend to Government suitable candidates for judicial office. The Government would exercise its constitutional role of selecting a person from those recommended by that selection board, the JAAB. The recommendations would go to Government and it would then recommend to the President the person or persons to be appointed to the Judiciary. The actual functioning of the judicial appointments system is covered with both expertise and clarity in Deputy Carroll MacNeill's excellent book, The Politics of Judicial Selection in Ireland, which is worth a read in the context of the evolution that has gone on on this subject for the past 20 years.

There are issues that are fundamental to our democracy at play here, namely, the right of a democratically elected Government to exercise its constitutional prerogative, and to do that in an accountable manner; the basic necessity in a functioning democracy to have a strong but clearly independent Judiciary that is capable of making decisions that annoy Government and can run counter to populist or even popular opinion; and to ensure as far as is possible the best people are actually appointed to the vacant positions. The politicisation of the Judiciary, despite many comments about it, has, I believe, thankfully, not been an issue in this State very much.

If we look to other democracies, the same cannot be said. A previous speaker referenced the US Supreme Court, which is entirely politicised now, and much hangs on the political complexion of individual members appointed to that court in the United States. Constitutional rights and fundamental laws that have been determined by the Supreme Court in the past are potentially now to be overturned. These are not small matters by any stretch of the imagination, and the concerns do not end at the borders of the United States. Concern about judicial appointments in some of our EU colleague countries are equally of great concern, and there was a debate yesterday in the European Parliament on the rule of law, focused on the Polish Prime Minister, who was present in the Parliament at the time. There are real concerns about the basic values of an independent judiciary being an underpinning value of the European Union, even within the European family of nations.

These are very important issues to get right and this is a most important issue. The normal argument that “If it’s not broke, don't fix it” cannot be the approach we adopt here. We have been fortunate to date in having excellent men and women serve in judicial office and they have served this country extraordinarily well. However, we need to be mindful that simply because we have been fortunate to date does not mean the system will always produce that sort of excellent result, and I think the sort of changes we are now addressing are completely warranted. We need a clear legal underpinning in an open and transparent manner for one of the most essential and important functions that is ascribed to the State.

This Bill proposes the establishment of a judicial appointments commission - yet again - whose function is to select and recommend persons for appointment to judicial office, both to the domestic courts here in Ireland and to the international courts where Irish judges are appointed. From previous experience, the two fundamental questions that need to be addressed are, first, the membership of the proposed commission and who is actually going to make those recommendations and, second, the level of discretion which will remain with the Government in making the final choice. In my judgment, they are the two criteria we need to look at in the context of this legislation. The Government proposes to have a nine-member commission chaired by the Chief Justice and to include the President of the Court of Appeal or, as the Minister has outlined in her Second Stage contribution, an alternative court president from the court to which the vacancy is to be filled; two members of the Judicial Council, one a barrister and one a solicitor; four lay members, three selected by the Public Appointments Service through open competition and one nominated by the Irish Human Rights and Equality Commission; and the ninth-----

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