Wednesday, 24 October 2012
Ceisteanna - Questions - Priority Questions
To ask the Minister for Justice and Equality his plans to restore public confidence in the judicial appointments process in view of media revelations that as many as one third of judges here have personal or political connections to political parties before being appointed to the bench. [46417/12]
I reject entirely the inference in the Deputy's question. Under the Constitution, judges are appointed by the President on the advice of the Government. Such appointments are dealt with by the Judicial Appointments Advisory Board which was established pursuant to the Courts and Court Officers Act 1995. Under section 16 of the Act, where a judicial office stands vacant or before a vacancy in a judicial office arises, the advisory board submits to me, as Minister for Justice and Equality, the names of the persons recommended for appointment. I then bring the names to the Government which decides the nomination. This system has operated under successive Governments since 1995 and our independent Judiciary has served the country extremely well.
With a view to ensuring the most up-to-date practice, particularly by reference to other jurisdictions, I have asked my officials to conduct an examination of the current procedure. The review is ongoing and I will consider the matter further on completion. Any proposal to revise the current system of judicial appointments or amend the existing legislation would be a matter for consideration by the Government.
The Deputy’s question is based on a presumption that no lawyer who engages in democratic politics should ever be appointed to the Judiciary, that any such engagement should render an individual ineligible for judicial appointment, and that such engagement in some way permanently contaminates his or her capacity to act with judicial independence in cases that come before the courts. It is a tradition in constitutional democracies all over the world that practising lawyers make a substantial contribution to politics and the development of legislative reform and I am sure the Deputy’s party, in its parliamentary work, is assisted by members of the legal profession with a variety of expertise.
By contrast with constitutional democracies, lawyers who favour democratic politics and propose legislative reform are usually excluded from judicial appointments in totalitarian dictatorships. It is clear from the conduct of the Judiciary since the foundation of the State that members of the Judiciary, at all levels within the courts system, have acted with independence and that no political bias, in the sense of there being a party political bias, is discernible in decisions made and judgments delivered. The acknowledgment by the Deputy that two thirds of those appointed to the Judiciary do not have a personal or political connection to political parties is, of itself, confirmation that having such connections is not required for judicial appointment and that the public should have full confidence in the independence of the Judiciary at all levels within the courts structure.
First, I want to clarify Sinn Féin’s position for the record of the House. We have no ambivalence in standing by the Garda in carrying out its duties. We have been unwavering in our challenge to dissident republicans across this island. In fact, many of our party members have been personally targeted for that approach. Mr. Mitchel McLaughlin, MLA, has had his home attacked on several occasions by these individuals. It is absolutely shameful for any Deputy to suggest any ambivalence on the part of Sinn Féin in confronting dissident republicanism. We have not been found wonting in taking on those who believe violence will achieve their objective.
Regarding Councillor Maurice Quinlivan’s comments, he made the point he knew some of those who attended a funeral and he was concerned that this would bring one under suspicion as some type of a dissident. That is a human rights point and nothing else.
In fairness, a Leas-Cheann Comhairle, I had to correct the record of the House on these matters.
I accept the Minister’s premise that it would be unfair for someone in the legal profession who has been involved in politics to be excluded from a judicial appointment. The solution is simple. The recommendations of the judicial appointments advisory board do not have to be accepted by the Minister. He can change that to an independent appointment decision. In 2011, there was a major media report on judicial appointments and five out of six judges appointed were found to have close links to one of the Government parties. That does not help with public confidence. The Minister can easily change the process through legislation to create an independent body for judicial appointments.
There were a great deal more than five judicial appointments made last year, so I do not know exactly what the Deputy is talking about when he says five out of six judicial appointments involved members of my party. There were substantial appointments made at all levels of the courts. Some of the individuals would have been engaged in politics; many of them were not. There were also individuals who were promoted from one court level to another because of the excellence of their reputation as members of the Judiciary and not connected in any shape or form with politics.
I would not rely, as Deputy Mac Lochlainn does, on the manner in which these matters are presented in the print media. That manner is to denigrate anybody appointed to the Judiciary who has ever been engaged in politics or assisted any political party at any time. It assumes it is the only reason for their appointment and entirely ignores their legal or judicial career. From my recollection, the bit of that report to which the Deputy referred, identified at least two individuals with a particular political party and who were promoted from one court to another. Ironically, they were originally appointed to the Judiciary when an entirely different party was the lead party in government. Their presence in the Judiciary was, accordingly, counterintuitive to the suggestion that the only reason they were appointed was because of political connections.
The Deputy should not be lead on this issue by a media which wants to present these appointments as outrageous and scandalous when they were actually on merit because of the excellence, independence of judgment and expertise that the individuals will bring to the Judiciary. That is a key and important issue. That has been the basis on which appointments have been made by the Government, as well as an assessment that an individual will fully and properly carry out their independent constitutional duties as members of the Judiciary.
As the Minister knows, thousands of solicitors and barristers have applied to become judges over the past 15 years. There is significant demand and competition for these much valued positions. I accept the Minister’s premise. We want to have people involved in politics but one should not be punished for a contribution to political life. The only way, however, we can restore public confidence in this issue is to give the power for judicial appointments solely to the judicial appointments advisory board and remove the power of the Minister or Cabinet to make that decision. Accordingly, it would be then beyond reproach.
It must be remembered those who are appointed, save in the cases of promotion, first came through the judicial appointments advisory board. It is important in a constitutional democracy that we have balance and accountability in these matters. The Government and the Minister of the day is accountable for appointments made, albeit the names come through the judicial appointments board. However, if someone thoroughly unsuitable is appointed, the Minister is accountable and is required to come into the House on the matter.
Some other countries have created an independent judicial appointments system which has no accountability but instead allows a select number of judges and legal professionals to determine exclusively who is appointed to the courts. No matter how independent such a group may perceive itself, in the absence of accountability there is always a risk that those appointed are those whose presentations in court are most approved of by the judges making the selection. Having a completely unaccountable body, exclusively making appointments with no accountability to Parliament of any description is not the best solution.
There is no monopoly of wisdom in or a perfect system for a judicial appointments system. No matter what objections people may raise to the current system, it is extraordinarily difficult if not impossible in the context of the myriad of appointments made to the Judiciary in recent decades or even after 1922 to identify a judgment delivered which could be perceived as being based on support of a particular party in this State.
I know some Members, the general public and the media may disagree with decisions made or sentences imposed by the courts. However, they are occurring within an independent environment. There is no suggestion that our Judiciary is party politically biased in any shape or form. The problem with this dialogue is that it is based on the assumption they are and, therefore, we should change the appointments system. I do not regard it as perfect and feel it could be improved. That is why we are reviewing it.
I am not enthusiastic for a system that allows a body not to be accountable to Parliament making appointments with the Government playing no role. If that were to happen a constitutional referendum would be required. I suspect the general public may not be enthusiastic about that either.