Catherine Connolly (Galway West, Independent) | Oireachtas source

I have great respect for Deputy Mattie McGrath but I do not agree with him that this is toothless, fruitless and useless. In fact, I welcome the Bill and the amount of work the Department and the Minister have put into it. I often criticise written speeches but I will not on this occasion. It was succinct and to the point. Of course, it does not deal with the issue of the Attorney General or the thorny question of the concerns raised in that regard, but it deals with the matters it deals with. It talks about fundamental reform and I acknowledge that. This is fundamental reform and I acknowledge that openly.

However, what is missing from the speech is the context. It is as if this Bill has arrived from nowhere. The background to this is that it has been a long time brewing. Let us put it like that. I have read all of the submissions and I once again acknowledge the work of the committee. In fairness, it highlighted the different opinions among its members. It did not come down on one side or another but certainly highlighted different issues, including the issue of rankings, concerns over the Attorney General being placed on the committee and so on.

Why do we need this? It is not a reflection on the judges. I will put up my hand and say that, in a different life, I was there. I am highly critical of any institution, including the Judiciary, when necessary but the older I get and the more time I spend with institutions, the more I realise they are the last bastion of the people who managed to get there. Unfortunately, not everyone has access. I wish we were discussing equality before the law in terms of access and the number of judges we need rather than this but this is the first step in looking at that.

We have at least four academics, including three in Ireland and one from outside, acknowledging we need a fair, transparent and rigorous process. They say this Bill goes a long way towards that. The Irish Council for Civil Liberties, which we often quote here, tells us that an independent, fair, transparent and effective judicial appointments system is crucial for protecting the independence of the Judiciary and the right to a fair trial. The Irish Human Rights and Equality Commission tells us, "An independent and diverse judiciary are fundamental components of a functioning democracy." It also points out that, "Judicial independence is a cornerstone of the rule of law and access to justice." Access to justice is another thing we do not talk about in here. It goes on to say, "Independence of the judiciary is an essential element for an individual’s perception of the judiciary and confidence in the judicial system." Perception is very important here. The commission states:

Perceptions about the independence of a judiciary can affect an individual’s decision to: “bring cases to court, to refrain from legal action or, if available, to use other methods of dispute resolution”. Interference with judicial independence and attempts at influencing judges can severely undermine the protection and recognition of human rights.

It also states, "Furthermore, from a rule of law perspective, a judiciary should be representative of the diversity nature of society." I could go on but these fundamental principles have been pointed out for quite some time.

We are here today with a Bill that certainly is reforming. There are many positive things in it. I do not agree that the former Minister, Shane Ross's Bill was the right way to go about this. It was most unfortunate that it served to deflect from the real necessity for a debate on justice, access to justice, diversity of the Judiciary and many other issues. If this is the start of that debate, I welcome it. The positive aspects include the fact that, for the first time, judges will be appointed based on merit. That is set out in legislation. There will be published criteria, selection statements and diversity statements. An interview will be essential.

The number of candidates from which the Government must select a judge has been reduced to three. That is welcome. All of the organisations I have mentioned, as well as international organisations like the Group of States against Corruption, GRECO, have said that a big number of names going forward to any government is unacceptable. The reduced number of three is acceptable. I have an open mind with regard to ranking. I know a lot of issues have been raised in that regard. I feel that concern has been met to some extent by reducing the number to three, which still leaves the Government the discretion it must have under the Constitution. A good balance has been struck there.

I welcome the underlining of the importance of education and training. It is fundamental. I welcome that there is to be a diversity strategy published with the particulars set out. I may come back to that point. I welcome that all applicants will go through the same system regardless of their position. The existing system, under which there is a difference, is unacceptable. The proposal in the previous legislation put forward on this issue, that there would be a trinity, including the Attorney General, to appoint the top judges, was simply unacceptable, so I welcome that, under this Bill, all applicants will be treated in the same way and will have to go through the same process. I welcome that eligibility has been extended to include the President of the High Court and legal academics. Although I know the Bar Council has some concerns with regard to experience, I do not share that concern. I believe it is a welcome change that legal academics are to be allowed in.

I welcome the accountability and that a report will be produced annually and presented to the Dáil. I welcome the built-in review in the legislation, which will go some way towards bringing about accountability, although I have concerns about a matter that is not set out - perhaps I have misread it - which is the review not being publicised. Perhaps the Minister of State can clarify that point. The review that is to be conducted by the commission in due course is to go back to the Minister but I do not see any provision for it to be sent to the Dáil. If we are seriously interested in increasing diversity among judges at every level, it is essential we see what the commission is saying, what we are learning and what further changes from the Dáil are necessary.

I welcome all of those changes but I will now move on to some of my concerns. I see no reason for including the Attorney General in the judicial appointments commission. The judicial appointments commission is to replace the Judicial Appointments Advisory Board, JAAB. It is a change of letters but it may theoretically be a lot more than that, depending on how the replacement is implemented.

If it is implemented properly and the review is carried out properly, it will ensure fundamental reform. Practically every single submission expressed serious concerns about the presence of the Attorney General, with the exception of the Bar Council. Its concern was simply that there was no provision for a replacement when the Attorney General steps out where he or she is going for promotion and would have no part in the process. That is the most basic requirement, that he or she would step out. If the judges on the commission are going for promotion, they must step out and there is provision for their replacement. The Attorney General is on the commission, but if he or she steps out, there is no replacement. That is one practical problem the Bar Council pointed out.

However, there is a far more fundamental problem that is totally at odds with the fundamental reform in this Bill that I am praising and which the Government is praising. There is no fundamental reform if we have the Attorney General on the commission, albeit in a non-voting capacity, because he or she will be there every step of the way, as has been pointed out, and will be there at the end when the Government decides. As pointed out by the submissions, the Attorney General will inevitably be involved in the final selection once names are sent to the Minister. Therefore, having the Attorney General sit on the appointments commission, albeit without a vote, seems to give an overly dominant - I would say influential - role. The Irish Council for Civil Liberties has pointed this out, the legal academics who made submissions have pointed this out, and the Irish Human Rights and Equality Commission, IHREC, has pointed it out. Specifically, IHREC says the rationale for the presence of the Attorney General on the judicial appointments commission is unclear.

Significantly, there is a gap in the speech where there is no reference to it at all except one line saying it will be a non-voting role. It does not deal with the issue raised after the process of consultation has been completed and when the vast majority of submissions have raised the most serious concerns in regard to having the Attorney General on the judicial appointments commission. I would love if the Minister dealt with that, with why we are avoiding dealing with it and giving us a rationale. It does not make sense. I think the rationale that was given by a colleague – it has gone out of my head but I might come back to it, and I think it was Deputy Lawless but I had better check - certainly did not ring with me as a rationale for having the Attorney General on the commission. The Attorney General is the Government’s legal adviser and arguably this provides a means of Executive involvement in the judicial appointments commission’s proceedings. This is not me talking - it is from the submissions - but I fully endorse this. This is particularly so given the Attorney General also sits at the Cabinet, again in a non-voting role. The risk is that having the Attorney General on the judicial appointments commission presents the obvious risk of double counting the view from the Executive.

Independence from the Executive and the Legislature was precisely the issue, and this has been pointed out and gone into in detail, and I share all of those concerns. The Law Society of Ireland said it is not appropriate to have the Attorney General on the judicial appointments commission. It outlines six different persuasive reasons the Attorney General should not be on it. There is also a suggestion the Attorney General should be ineligible for appointment as a judge of the Supreme Court or the Court of Appeal for at least a period of 12 months after leaving office. That is another concern that has not been dealt with. As I mentioned already, the Bar Council said there is no provision for a replacement for the Attorney General when he or she steps out of a commission meeting. Obviously there cannot be because there is only one Attorney General. That in itself is a problem.

The Bar Council raised an interesting point in regard to the cost analysis and the danger of a new quango. I fully agree there has to be a judicial appointments commission and that it has to be staffed, but the Bar Council raises serious issues in regard to the creation of a new State body and whether it is proportional to the function for which it is created. In any given year there might not be any judges appointed and we are providing an office, funding and a director. The basis for the potential extra expenditure has not been identified in the Bill. Perhaps it has somewhere and I am not aware of it.

There are concerns about confidentiality, which is another concern of mine, where an offence has been put into the Bill. Only one submission raised this and it was the academic who is, I think, based in Oxford. He raised the question of the necessity for creating an offence for canvassing or for disclosure of confidential information. I understand in the previous legislation there was simply a prohibition on disclosure. Now we have gone further and created an offence. It could may well be that there is a need for that but I see no evidence. Has somebody broken that in the past? Have they contravened the prohibition? Why do we need that? How is that dealt with in relation to the Attorney General? He or she sits on the judicial appointments commission and then goes back to Cabinet and talks to the Ministers and so on. Where does confidentiality come into that? Will that person who is Attorney General be treated differently in regard to confidentiality? I would like that to be clarified. If we are going this far, and I think it is a major step in fundamental reform, why shoot ourselves in the foot by keeping an Attorney General on a commission when there is no rationale for it?

I mentioned already that ranking was a serious concern of many of the submissions. It is not a concern for me now that the numbers have been reduced down to three. The other matter was in regard to judges being elected by their peers. It is not clear to me if that is the case or whether they will be nominated. It would seem to be an international practice that they would be by their peers.

In regard to diversity and gender equality, it took 101 years to get the first two females appointed to the Bar. We are dealing here with 100-year periods. The year 2021 marked the centenary of the call to the Bar of the first two women, Frances Kyle BL, and Averil Deverell BL, in November 2021. They were the first two to be called to the northern bar. That was the 100th year. It took another year to break the barrier for solicitors, and they were appointed in 1923. Mary Dorothea Heron was the first woman to be appointed. I think great strides have been made. Some 40% of barristers are now female, although there is a complete imbalance in regard to senior counsels, of whom only 17% are female. However, the promotion of judges is from the pool of senior counsels. I acknowledge Deputy Carroll MacNeill’s work in this area, the book she has written and the research she has done. It has taken quite a long time to get this far where 40% are female. The diversity strategy and the gender strategy need to mean something in reality. The first review that is carried out will be essential to learning and to seeing whether we mean what we are saying when we pass this legislation. Will it be implemented?

The other thing, when I looked at this, is that very often there can be strong legislation and strong strategies, as they have in England, and it does not make a difference. We are actually ahead of England in terms of gender equality, as I understand it. Having it is one thing; implementing it is another.

In regard to diversity in terms of socioeconomic and ethnic backgrounds and so on, we have no data. It is another fact that jumps off the pages. We know anecdotally the judges do not reflect society, that they come from a particular background and a particular education system, which is absolutely no reflection on them. In my opinion they do a good job, relatively speaking, compared with other institutions, as I said earlier. We need data urgently. One of the first jobs for the commission is to have data and to commission and carry out research. Its strategy should be based on that. It should have targets and objectives that should be reviewed. It should be brought into the Dáil or the relevant Oireachtas committee in order that we can look at it.

Why do we need this Bill, besides any of the political debates that have gone on about it? Given the recent developments in Poland and Hungary, and again this has been identified in the submissions, it has become all the more clear that we cannot rely on convention or tradition alone and assume the goodwill on the part of any future government.

We need an independent process inasmuch as we can do that under the Constitution. I think this strikes the balance in that regard.

I will finish by saying that I would love a discussion in here when we have this done and the system is set up to monitor it, the targets that are set and on access to justice. The President of the High Court, Mary Irvine, has pointed out repeatedly that there is an absence of judges and the five recent appointments in the past year were already counted, so we need more judges.

In response to the argument that judges are a cabal, let me point out that back on 30 January 2014, eight years ago, the Judicial Appointments Review Committee set out 16 recommendations in a report. They are fundamental. It was stated that: "The present system of judicial appointments is unsatisfactory." That is the senior judges speaking. They also stated: "As a matter of principle, political allegiance should have no bearing on appointments to judicial office." They went on to say that there should be no distinction between the appointments of judges on a higher level and a lower level. They asked for ranking in recommendation 16. There were the senior members of the Judiciary crying out for change. I agree with a lot of what Deputy Carroll MacNeill says, but not on this. The Judiciary itself highlighted that reform was necessary and that it should not depend on political patronage.

The final issue that is not addressed is what happens if the judicial appointments commission fails to nominate somebody, if it does not pick anybody or it is not in a position to recommend anyone. I do welcome the fact that the Government has to pick from the three candidates, but what happens if three candidates are not chosen?

See this speech in context