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

I spent much of my time in the previous Dáil debating judicial appointments commission Bills. I am sure the Leas-Cheann Comhairle contributed to those debates as well. I am sure Deputy Martin Kenny, who I see across the Chamber from me, did likewise.

I bring to this debate a certain amount of knowledge of those Bills, which ultimately got caught up in the politics of the last Dáil, unfortunately. In October 2016, my Fianna Fáil colleagues and I introduced a judicial appointments commission Bill. It got the support of the Government on Second Stage. It then went to Committee Stage, but it did not get through Committee Stage because the Government decided not to provide a money message for it. However, the Government said it was committed to introducing its own judicial appointments commission Bill, and that was subsequently introduced in May 2017. The history of that Bill's progress through the Houses of the Oireachtas could be written in about four volumes. It got through the Dáil fairly rapidly and then it went off to the other House, Seanad Éireann. In fairness to the then Minister, Deputy Flanagan, I think he spent 30 or 40 days there debating amendments to the Bill, which ultimately was not enacted. In fairness to the Houses of the Oireachtas, I think that we were right in the last Dáil and Seanad not to enact that legislation because it was not good legislation. Unfortunately, it got wrapped up in the politics of the last Dáil.

We need to be clear that we should try to get consensus on this. It is difficult to try to set out a statutory mechanism pursuant to which people would be recommended to be members of the Judiciary. As we have all stated before, on balance we have been well served in this country with the Judiciary we have had since independence. The most important feature of the Judiciary is that its members have been independent. They have been able to say to governments, “You are not allowed to do that”. They have been able to say to the Oireachtas, “We are striking down legislation because it is unconstitutional and infringes the rights of others”. They have been able to do so without any fear of the consequences. The reason they are able to do it without fear of the consequences is because it is extremely difficult to remove a judge in this country, as it should be. The last thing we want is the type of tyrannical regime we see in other countries, whereby judges whom the government does not like can be removed very easily.

We have never really had a satisfactory mechanism or scheme for the recommendation of people to be judges. I want to point out that it is a difficult task to do. First, it is difficult because you are selecting from a very small group of people. The only people who are eligible to become members of the Judiciary in this country are qualified, practising lawyers: qualified, practising solicitors and qualified, practising barristers. That will be changed under this legislation. I welcome the fact that it will now be extended to include certain legal academics who also have experience of practice. However, necessarily, you are dealing with a small number of people.

I am conscious of what Deputy Catherine Murphy has said about increasing diversity. That will happen once the professions reflect increasing diversity. We have seen it happen already with gender balance. Approximately 20 or 30 years ago, very few women were on the High Court. Mella Carroll, as the Leas-Cheann Comhairle will remember, was the first woman appointed to the High Court. The main reason for that was that very few women were eligible for appointment to the High Court. That has considerably changed over the past ten years. This Government and the Minister are to be commended on the appointments that this Government has made. There has been virtual gender balance in the appointments to all the courts.

It is a difficult task to do. You are trying to identify what type of person you think would make a good judge. My experience is that people who are good lawyers do not necessarily make good judges and, similarly, people who are bad lawyers can sometimes make good judges. I emphasise that it is not possible to be a good judge unless you have a good understanding of the law. You could be a bad lawyer or, I suppose, an unsuccessful lawyer, but make a very good judge. However, in order to be a judge, the fundamental requirement is that you have a good understanding of the law.

We might look at other countries. It is obviously a political issue in the United States of America as to who is appointed for instance to the US Supreme Court. Fortunately, we have overcome that issue in this country. In this country, we resolve our complex social issues through political debate and, ultimately, through referendums. That is how we have dealt with contentious social issues in the past ten to 15 years. In the United States, they do not do it like that. They do it on the basis of how the US Supreme Court interprets their constitution. Necessarily in the United States, therefore, it will be a political decision as to who is appointed to the US Supreme Court. We have seen that in recent years with the appointments to those courts.

One of the contentious issues about this Bill has been what is contained within section 9, which relates to membership. The Bill I introduced in October 2016 proposed 12 members.

In the Bill that the Government proposed in 2017, there were 13 members. In this Bill, there is a proposal for nine members. Having looked at all three Bills again, this one is better than mine and the one the Government previously published in 2017. It is far better-off to have a situation in which one does not have the President of the High Court on a statutory body that advises on appointments to the District Court. It makes much more sense just to limit the body to the president of the court where one seeks to make a recommendation in respect of a judge.

I know the fact the Attorney General is included in the statutory body under section 9 is contentious. My recollection of the Bill that Fianna Fáil introduced before is that he or she was not included. The reason for that was one would have the Attorney General at Cabinet. What would be the purpose of having him or her there at the early stage? However, I have to say that ultimately when it comes to ensuring that good and qualified people are nominated to be judges, the Attorney General plays an absolutely crucial role. I commend the current Attorney General on the nominations he has advised on so far.

On balance, it is not something about which we need to have a huge row. He is on this statutory board but he does not have a vote. One of the most powerful parts of the legislation is section 51 which expressly states that the Government cannot consider for nomination anyone who is not recommended. That certainly goes further than any other legislation. On balance, I welcome it. Let us take our time and get it right. I commend the Minister of State, Deputy Browne, the Minister, Deputy McEntee, and the Attorney General for the excellent work.

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