Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

Significant recommendations were made during pre-legislative scrutiny and many of them are important. I acknowledge that. The Minister did not accept some of the recommendations, however. First and foremost of these is the recommendation for the names of three nominees to be ranked in order of preference. Should the Cabinet decide not to go with the recommended ranking, it would have been required to provide a written reason for doing so. This is really crucial and it is one of the main points I will cover.

The ranking of candidates has been very specifically asked for by senior judges, legal academics, the Judicial Appointments Advisory Board, GRECO, the Irish Council for Civil Liberties, the Irish Human Rights and Equality Commission, the Law Society and the Bar Council. How could we, in good conscience, ignore this when many legal experts and anti-corruption bodies have been seeking this measure for some time? Allowing the commission to provide the Government with a small number of ranked candidates would only provide greater transparency and limit the degree of real or even perceived political influence exercised in making judicial appointments. What is the purpose of the Bill if it is not for that?

If the Government is serious about reforming the judicial appointments system, this must be done. We cannot have a repeat of the Judicial Appointments Advisory Board, JAAB, Bill where reforms fell short because there was a reluctance to relinquish political control. We need a proper merit-based appointments system for judicial appointments. The Minister cannot, in good faith, say the Bill will achieve that goal without candidates being ranked.

A ranked list would not be unconstitutional and it is disingenuous to suggest all those legal bodies in the country have somehow got this wrong. The Executive would, of course, retain discretion in the appointment of judges and it can be explicitly indicated that the ranking is not binding but merely advisory. If the Cabinet chooses to pick a judge who is not ranked first, it would be entirely possible for it to do so. All the benefits of the independent merit-based assessment would be undermined if three unranked names were to be sent to the Cabinet, as the coalition partners could divvy the names between them. All the accountability and transparency we are building into the appointments process will fall at the last hurdle if, in essence, we retain the exercising of political choice over judicial appointments. We are trying to get away from that. The GRECO evaluation team explicitly criticised the proposal to have an unranked list of nominees sent to the Cabinet and called on the Government to really tackle the matter of Executive influence over the judicial appointments system.

The argument given during pre-legislative scrutiny against the ranking of nominees really does not stand up. It was argued that excessive constraints on the discretion of the Executive may be unconstitutional but the Executive would not be bound by ranking, which would be purely advisory. It was argued that some nominees may be of equal merit and that can be catered for by having a joint position. It is perfectly possible to do that. It was also argued that ranking would result in possible reputational damage but the entire appointments process protects candidates from such damage. The selection process is exempt from the freedom of information framework, for example, and the Cabinet is bound by Cabinet confidentiality.

There is no doubt that amendments will be put on Committee Stage seeking the Minister to accept the change so we can get ranked candidates. I ask sincerely that the Minister would seriously consider the matter. It is a mistake and its consequences can be foreseen. This undermines the very objective we are trying to achieve.

Like previous speakers, I also have concerns about the role of the Attorney General in the process and ask if it is appropriate. The Attorney General would not have a vote in the selection process but it is undeniable the Attorney General would play a central role. We all know we look to certain people for influence and advice, etc., and there is no doubt the Attorney General would be in such a position. When the names are sent to the Cabinet, the Attorney General would again have a significant influence on the final pick. Nobody doubts the qualifications of an Attorney General but it is a political appointment nonetheless and having a representative of the Government at the judicial appointments commission would undermine its supposed independence. Others have made the point as well and I would like it considered seriously.

It is not standard in other jurisdictions that a position like the Attorney General would have this role. The Attorney General is also responsible for purchasing many legal services in the State and there are significant risks of conflict of interest that need not arise if a change is made to the Bill here. If the Government decides the nominees should remain unranked because it wants to make a decision as independently as possible, the Attorney General should not be involved in the judicial appointments process.

There is also an added complication whereby many Attorney Generals take on a senior role in the Judiciary when they leave office. With that being a well-established precedent, it is entirely inappropriate for the Attorney General to sit on the judicial appointments commission. I am looking for that be re-examined.

There were some blanket comments made that we have all been well served by the Judiciary. At times we have not been. Some of the changes will be helpful, for example in terms of training. Sentencing can be very inconsistent. We might look at the kinds of resources that have been put into designing and upskilling judges in other jurisdictions. The UK would be a case in point. It is not just about legislation. It is about the resourcing, in order that we do work that builds confidence. I say this because on occasion people will ask about it. This is particularly true in cases where there has been a sexual assault. It is hard enough to get people to go to court. Sometimes there will not be a custodial sentence for a crime that is on the high end of the offences. I think that undermines the Judiciary. The resources will be just as important in building up that capacity.

The number of judges is another issue. Again, the legislation does not necessarily deal with it. While you can have very good legislation, if do you not have the resources to deal with matters appropriately, you will have difficulties. In the District Court, for example, the priority will obviously be given where there is a criminal case. As a result, civil cases and planning cases can take years to go through the District Court. Sometimes they get scaled up to the Circuit Court. Sometimes you find an injunction at High Court level because the District Court takes too long. There is a huge waste of time at local authority level, for example, when people go down to the courts to wait for a case so that they can get a date, but it keeps being postponed. There is a real issue with the capacity to deal with the number of cases at every level. I ask the Department and the Minister to take that on board.

The point and provision that has been made for diversity is important. That goes across gender, socioeconomic status, people’s racial background and maybe their experience in other jurisdictions. It is important that we see it in practice. It will be important to see how that happens in practice, given the closed environment that is in place in some aspects of the system. It will be necessary to get to a point where we get the kind of diversity that is needed to have an understanding of people’s lives. We do not want the kind of potential groupthink whereby the Judiciary is drawn from the same socio-economic cohort and background, for example.

Those are my main points. There is a lot to be welcomed, as I said when I started speaking on this Bill yesterday, not least that the Bill has come before us in the first instance. However, changes are required. The changes in relation to resourcing issues will require much attention if we are see our criminal justice system functioning as well as it can.

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