Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael) | Oireachtas source

I thank the Leas-Cheann Comhairle and the Minister of State for the opportunity to speak on this Bill which I welcome. I agree with Deputy O'Callaghan that it is the best of the iterations that have come out over the past number of years. I thank the Minister of State for the response to the Oireachtas Joint Committee on Justice recommendations and the work on the Bill.

In response to Deputy Gould, the Judiciary has among the strongest support from the people in terms of institutional independence. It is internationally recognised in the top ten along with other countries such as Norway, Finland, New Zealand and Australia. New Zealand in particular is interesting because it appoints all its judges entirely by political means with no external reference. It is the attorney general who leads on that point. Therefore, it are not necessarily connected that political appointments mean a judiciary that is not respected or independent. It is much more complex than that.

Deputy Catherine Murphy said that the reform of the judicial appointments system in 1996 fell short of real reform. It was a real reform because before then the Government could appoint absolutely anybody it wanted as long as that person was ten- or 12-years qualified. It made a considerable reduction on political discretion for the Government. Instead of the universe of people being everybody who was qualified, it was now the seven names recommended by the Judicial Appointments Advisory Board. What happened was not the application of the legislation by the Government but most bizarrely by the Judicial Appointments Advisory Board which was set up and given extraordinary powers to reduce the universe of Government discretion from everyone who was qualified to the people who applied and the seven names it recommended having assessed them. From approximately 1995 to 2002, it recommended approximately seven names as the legislation described. It had the power to recommend fewer than that if that was what it wanted to do. That happened until 2002 or 2003.

At that time, the membership of the board decided to take a different approach which was to recommend all of those people who were not unsuitable. It got senior counsel advice to say whether the board was acting constitutionally. I do not know why it needed senior counsel advice when one looks at the composition of the board which included the Attorney General, the Chief Justice and the President of the High Court. It reinterpreted its own function under the legislation. I do not know why. I have never managed to figure out why it did it. However, the effect of what it did, which was not at the request of Government or the Oireachtas Joint Committee on Justice, Defence and Equality and was never reviewed in any meaningful way, was to recommend all of those people who were not unsuitable. If one had 150 applications for a District Court position, approximately 100 of those would be deemed suitable under the Act. Instead of recommending seven out of the 100 suitable, it recommended all 100, which gave all of the political discretion back to the Government. It was not at the Government's request or behest, but because of the decision-making of the Judicial Appointments Advisory Board. It is genuinely inexplicable.

That continued until 2014 or so when it was described publicly. It then brought its practice back to in and around seven. The question of political discretion is bandied about as though the Government wants it all the time and is trying to acquire as much as possible. The Government actually restricted its own discretion in 1995-96, got it all back from the Judicial Appointments Advisory Board, pointed out the problem and the discretion was reduced again. It is just not true to say it is some sort of cosy cartel of the Government trying to grab all this discretion for itself at all times. It is just not the way it worked. It was the procedures of the Judicial Appointments Advisory Board.

The other things it did not do well unfortunately was that it never interviewed. Despite having the statutory power, it never interviewed anybody. It could have but it did not for various reasons, mostly because it felt it did not have the expertise or capacity to do it. What that meant was that the Government had no real detail about who was being recommended to it or why.

We talk about whether it should be ranked. The political discretion point I make is important because it is an important constitutional point. However, it does not really matter if the Judicial Appointments Advisory Board or the commission will not engage in serious analysis of the candidates in a professional way, in the way that the Public Appointments Service does and Top-Level Appointments Committee, TLAC, do, and give quality information to Government about why it has picked this person and the person's relative merits and strengths and make an analysis.

It is perfectly possible to have candidates of equal merit who are candidates for very different reasons such as a very good commercial or criminal lawyer. There are many different types of candidates and it is important for the Government to make political choices between those people but they are not political choices with a capital P. They are not party political choices but subtler political choices such as that made by the Government in 2011 to remedy the gender deficit on the courts. That was a political choice to have two out of every three appointments being female. Those are the sorts of broad political choices that are needed.

I discussed this with Deputy McLoughlin, as he was in 2014 or 2015, on the Oireachtas Joint Committee on Justice, Defence and Equality and pointed out that if he or Deputy Kenny were Minister for Justice, they might wish to make broader political choices between three competent qualified people who have been assessed under a statutory process where there is quality information going. It is a sort of simple political charge that it is not being ranked and therefore the Attorney General is involved.

It is a little more complex than that.

This Bill is the best iteration, as Deputy Jim O'Callaghan has said. It is important that all appointments go through this, and it is important that the Minister be aware of all the people who have applied. In that way it gives the Minister a safeguard to be able to assess whether diversity really is coming through the Judicial Appointments Advisory Board. The board publishes its annual reports every year and gives a breakdown of who applied - the gender breakdown, the professional breakdown and so forth - but not of who came out the other side, which is a barrier to being able to assess whether real diversity is coming through the JAAB. It was impossible for the Government. Although it had the statutory power to appoint somebody other than a person who was recommended by the Judicial Appointments Advisory Board it only ever did it once, in the case of a person who subsequently became Chief Justice. The fact that it had the discretion to do it was statutorily relevant, but in practice it was irrelevant because it never did it. Again, there is this bandying about of political this and political that, but if one looks at the vast majority of the applications by the Government of the Act, it never used the scale of political discretion that was available to it all the way through. In fact, the real difficulty, which I am sure will be remedied in the case of the new judicial appointments commission, was the institutional drift that the body went through.

The Bill is very welcome and I will enjoy taking it through Committee Stage to continue the debate about the role of the Attorney General, rankings and so forth. However, there is a strongly independent Judiciary in Ireland and a very good system that is comparatively benched. This is an important institutional reform and improvement, but that is all it is.

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