Friday, 21 February 2014
An Bille um an gCeathrú Leasú is Tríocha ar an mBunreacht (Ceapacháin Bhreithiúnacha) 2013: An Dara Céim - Thirty-fourth Amendment to the Constitution (Judicial Appointments) Bill 2013: Second Stage [Private Members]
Tairgim: "Go léifear an Bille an Dara hUair anois."
I move: "That the Bill be now read a Second Time."
This Bill comes before the House at a time when confidence in the justice system of this country is ebbing by the hour. There are question marks over the Department of Justice and Equality, over politicians administering justice and over the gardaí. This is the first of two Bills I intend to introduce in this House to establish the independence of the gardaí and the Judiciary from the Government. The Department of Justice and Equality is the most vulnerable to political interference and patronage. Since the foundation of this State the appointment of judges has, unfortunately, been regarded as part of the spoils of war; judicial appointments have been dished out as rewards to those who have been loyal to political parties at times of electoral contest. That is indisputable.
The effect is twofold: not all appointments are made on merit, and some people who should be appointed are excluded because of their political colour. I see the arguments made on both sides, and those opposing this Bill, if there are any, will agree today that we should not exclude people because of their political beliefs or colour, and they will say this Bill attempts to do that. It is not an attempt to do that. It is an attempt to appoint people independently, and exclusively on merit, if that is possible. It is certainly intended to exclude the obvious political interference and preference which has gone on in all parties in the appointment of judges to all courts. This does not apply only to judges but to gardaí as well. I asked the Garda Síochána yesterday to find out how many top gardaí are politically appointed and I was very surprised to find that the figure is 200. That is one of the symptoms of the crisis we face. Political appointments should be outlawed from the appointment of top gardaí. It is equally important, before we have accidents or something awful happens, that judges are not politically appointed. All judges are politically appointed; all judges are appointed by the Government. This is not true in the case of the Garda but it is true of the judges of all courts.
I do not want in any way to single out any particular party or appointment. Fianna Fáil was absolutely ruthless, when it was in office for many years, in appointing its own loyal lawyers to all courts, but this Government has been playing catch-up very effectively. It is very easy for anyone in this House to examine the judicial appointments made by this Government and to identify people of a political colour, closeness to various Ministers or other politicians who have power in this House or influence elsewhere. That system has to end. We are lucky that we have not as yet had a very obvious accident in which a judge has made what is quite obviously a political judgment. That is true. I cannot point to one. It would be very difficult to prove that a judge had made a decision because he or she was a member of a political party and that affected the verdict. It cannot be proved because it is in the mind. It is obviously a possibility and a system which is vulnerable to that criticism. It is also wrong that those who are in political parties should be rewarded with very lucrative and, in certain situations, soft jobs.
The present system was established in 1995 when the Courts and Court Officers Act was introduced following a political spat between Fianna Fáil and the Labour Party when they were in government together over the appointment of the President of the High Court. Until then, appointments were blatantly political as a result of lobbying and the preferences of Ministers. There was such a hell of a row that the Judicial Appointments Advisory Board, JAAB, was set up to give the impression that judicial appointments were now being made on merit, but there was a big problem with that board. It was a fig leaf. All of the appointments bar two on that board were political: three were directly made by the Minister, and others were ex officio, such as the Attorney General and the Presidents of the High Court, Supreme Court, District Court and Circuit Court, all of whom are political appointees. JAAB - it was known as "JAABs for the boys" in the Four Courts - operated an extraordinary system and still does.
When a vacancy arises, applications are made to the JAAB, as advertised. Following that, JAAB makes a recommendation, which goes to the Minister. JAAB does not hold any interviews. In that period, although it has power to hold interviews, it does not hold them. For each vacancy it recommends normally seven particular candidates, whose names then go to the Minister. The Minister and the Government choose from that seven and send the name on to the President, who then appoints the judge. It is not just that there are seven candidates to give the Minister a wide choice - they can always find a loyalist to put into power - the problem is worse than that. The Minister does not have to take a blind bit of notice of JAAB if he does not want to do so. He, as it was at the time it was set up by a Fine Gael-led Government, or she can simply appoint somebody else. However, it is available as a type of fig leaf to give the impression that there is a weeding out and selection process. It is a farce, and it is acknowledged that it is a farce.
The current system is not even approved of by the Judiciary. It is important to point out that judges, the members of the Judiciary, are deeply embarrassed by the fact that so many of their own number are appointed partly because of their political allegiance. I will quote two lines from a submission made by the judges in a public consultation recently where they stated:
As a matter of principle, political allegiance should have no bearing on appointments to judicial office. Early acceptance of this principle is essential to a transformation of the appointments process.In other words, they are saying the appointment of their colleagues should be taken out of political patronage because it is discrediting those who are particularly adept and rightly respected for the jobs they are doing. That is a powerful testimony to what I am stating.
My Bill hopes to address this in a radical but extremely effective way and, unfortunately, it is necessary to address it in a constitutional way because some of us on the Independent benches do not trust either political parties to implement a Bill which guarantees the independence of the Judiciary. I say that as one who has watched for a very long time what are blatant abuses in some cases, particularly in terms of appointments to the District Court. Most party politicians will tell one that they are lobbied extensively by local solicitors looking for appointments to the District Court, and quite often it is an effective form of lobbying. It is extraordinary how sought after these jobs are, and to give the Minister of State an example, in terms of applications to the Judicial Appointments Advisory Board, there are usually over 100 applications for each place in the District Court. That must be some job. That is the reason there is such a wide and effective lobby for these positions. They are sought after, politically appointed and are lobbied for still, and those names go to JAAB and then to the Minister.
I propose in my Bill that judges should be introduced on merit and should guarantee their independence. I will outline the two layers of selection that are suggested and constitutionally imposed in this Bill. JAAB should be abolished and replaced by a judicial appointments council or board, whichever the Minister wants to call it, which is drawn from a broad spectrum of society. There would be no room in that judicial appointments council for any judges because the Bar Council and the entire legal profession is a home for insiders. There would be no room for any judges or any ex officiolegal representatives from the Law Society of Ireland or the Bar Council but rather candidates would be drawn from a broad spectrum of society. That could include legal academics who would have a knowledge of the law and of the people. It could include ordinary citizens and community groups, but it would not allow insiders to push their nominees onto the bench.
The second layer would be an Oireachtas committee which would receive the names of those who had applied to be judges, debate those names and then send them to the President. The Government would be bypassed completely. The Oireachtas would have a role in this but the security in this particular committee is that there would be an Opposition majority on that Oireachtas committee. There would be no way the Government could impose its way as it did in the past, and the Opposition would have a veto on that. That is the most important part of this Bill. The rest of the detail could be provided by law but if there was an Opposition majority, we would no longer have a system where political patronage would rule. People would be nominated by citizens and a judicial council. They would then go before an Oireachtas committee which would hold interviews, unlike JAAB, and would then nominate individuals and send the names to the President. Those interviews could be held in public to allow the public scrutinise them because in regard to judges, and we have noticed it in this House in recent days, it is almost taboo-----
-----to mention the name of a judge or to criticise the appointment of a judge or anything like that in this House. I cannot understand why the recent appointment of Judge Cooke cannot be examined, criticised and analysed in this House, and his history examined as to whether he is a suitable candidate for the position in which he has been put. It would be far healthier if the taboo that surrounds judges, judicial appointments and naming judges were abolished and disbanded because such appointments are very important and it is very important that an appointment can be criticised. It is very important that the history of that judge, and I am not referring necessarily to any political affiliations, and his judgments should be brought to the attention of this House when we are examining the important task before him.
I beg the Minister to consider this Bill on its merits. I am hoping it will initiate a new departure in establishing the independence of our Judiciary and abolishing political patronage of it forever.
The Minister for Justice and Equality, Deputy Alan Shatter, has asked me to convey to the House his regret for not being in attendance today. He is in Greece attending a meeting of the European Union Defence Ministers, a matter of considerable importance in the context of his work as Minister for Defence. I understand he made a number of personal requests to Deputy Ross to re-arrange this debate to allow the Minister be present to respond to the Bill and the points made by Deputy Ross. I understand also that is something the Chief Whip would have proposed to the House but for whatever reason, that was not possible.
Given that the Minister, at the beginning of December 2013, announced a public consultation process with regard to formulating proposals to Cabinet for reforming this area of the law and invited submissions, I would have expected Members to attach some value to the Minister's participation in this debate. I regret that, for whatever reason, Deputy Ross was unable to facilitate that.
I listened with great care to the Deputy's contribution. I ask him for a single example in which the method of appointing individuals to the Judiciary has influenced the decisions they have made. Deputy Halligan is waving a newspaper in his hand.
Deputy Ross referred to obvious political interference. I ask the Deputy and those who support him to provide the House with an example of how decisions our Judiciary made were influenced in the way Deputy Ross has alleged. The Deputy said he could not prove it because it was in their minds. All I am asking is for an example of a decision made by a member of the Judiciary that was influenced by a political party or a Government.
It has been alleged that there is political interference in how our Judiciary operates. I want Deputy Ross to give me an example of this. He referred to the fact that an accident has never happened. I want an example of an accident that might have happened. I suggest that an accident has not happened because we have an independent Judiciary which has exercised its powers throughout the history of our State independently of political influence from this or any other Government. In the remainder of my contribution I will address the substance of the Bill introduced by Deputy Ross but I still want him to provide an example that would underpin his claims. Since 1922 we have had a robust and independent Judiciary but apparently Deputy Ross and his Independent colleagues believe they are the only people who can be trusted to appoint our judges. Members of the Irish Judiciary point out that they are ranked among the most independent in the world. I assume Deputy Ross is not saying otherwise in respect of our judges.
Over the past three years, the Minister has been in a position to closely observe how the existing system of judicial appointments is operating and he has already formed the view that it is very much of its time. He believes reforms and improvements can be made to render the system more transparent and accountable while also ensuring that the independence of our Judiciary is fully protected and that the Judiciary continues to be respected by the Irish people and internationally. The Minister believes that the current system of appointing judges could benefit from a review and, as I already mentioned, he initiated a consultation process in December as a first step in such a review. Indeed, it is important to say that this is the first such open consultation to take place on the statutory provisions applicable to judicial appointments since the Judicial Appointments Advisory Board was established, and the Minister is to be commended for that. The Minister believes it is important that reforms applicable to this area derive from a considered consultative process, public debate and debates in this House, and are not simply magicked up like a rabbit out of a hat without any serious consideration being given to the implications of what is actually proposed.
Deputies will be aware that, under the Constitution, judges are appointed by the President on the advice of the Government. The current process for the appointment of judges in Ireland is set out in sections 12 to 17 of the Courts and Courts Officers Act 1995, which established the Judicial Appointments Advisory Board, JAAB. The system provided a structure through which applicants wishing to be considered for judicial appointment may submit written applications to the JAAB providing information on their education, professional qualifications, experience and character. Amendments to the Act in 2002 rendered practising solicitors eligible for appointment to all of our courts. This was a move originally advocated by the Minister some years earlier and as a consequence both solicitors and barristers in legal practice for a designated number of years are eligible for appointments to each of our courts from the District Court up to and including the Supreme Court. The JAAB, which was established to recommend persons for judicial positions, consists of the Chief Justice, the Presidents of the High Court, Circuit Court and District Court, the Attorney General, a practising barrister nominated by the chairman of the Bar Council, a practising solicitor nominated by the president of the Law Society, and no more than three persons appointed by the Minister for Justice and Equality. The role of the board is to identify persons, through their own application or the board's invitation, who are suitably qualified for judicial office.
The current criteria for appointment as a judge are set out in sections 16 and 17 of the Courts and Courts Officers Act 1995. The board cannot recommend the name of any person unless in the opinion of the board the person concerned has displayed in practice as a solicitor or barrister a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned, is suitable on grounds of character and temperament, is otherwise suitable and complies with section 19 of the Act. Short-listing is expressly on the basis of competence and merit, not political affiliation. The remit of the board excludes the offices of the Chief Justice and presidents of the other courts. Where the Government proposes to appoint a person who is already a judge, the board is not involved. In addition, the Standards in Public Office Act 2001 requires applicants to certify that their tax affairs are in order. While the decision as to who should be recommended to the President for appointment to judicial office rests with the Government, it has been the practice of this Government to recommend to the President for appointment only persons who have been recommended as suitable for appointment to judicial office by the board. The only exception to this is where existing members of the Judiciary have been promoted to a higher court.
The fourth progress report of the All-Party Oireachtas Committee on the Constitution stated:
This recent procedure supersedes the rather informal process pursued by successive governments who were seen to appoint, almost invariably, their own supporters to judicial office. There is no evidence, it should be noted, that such appointees displayed favouritism to the party that appointed them. The new procedures were introduced because there was pressure on governments to ensure transparency in appointments.It should be remembered that the board is given complete freedom to establish its own processes. Indeed, it is given express statutory power to engage in certain functions to assist it in the performance of its critical task, including a remit to interview applicants for judicial office. Unfortunately, this has not happened to date, but in a recent letter to the Minister, the Chief Justice said the board was now considering doing so, and the Minister welcomes this proposed initiative. The manner in which the board fulfils its statutory functions is, of course, the responsibility of the Chief Justice.
The Minister is of the view that the current legislative arrangements under which JAAB operates require change to assist it in the important work it is required to undertake and to provide to the Government more information and greater assistance in the making of judicial appointments.
For reasons of political accountability, the Minister is satisfied that the current constitutional arrangements, which require that ultimately it is the responsibility of Government to recommend to the President those to be appointed to the Judiciary, should remain as they are and that they have well served the test of time and are in the public interest. This position is both informed and supported by previous work undertaken by the Constitution Review Group and by this House on judicial appointments. I note in particular the comments of the All-Party Oireachtas Committee on the Constitution in its Fourth Progress Report:
The independence of the judiciary might suggest that the executive should have no discretion in the appointment of judges. But, since the judiciary is an organ of state, it must ultimately be held accountable to the people. As Chief Justice Finlay put it [in 1998]:The Constitution Review Group of 1996 also considered whether the power to appoint judges should be taken out of the hands of Government and given to the President or some other body. It considered the provisions of the Courts and Court Officers Act 1995 and concluded:
At the end of the day somebody must be accountable for the standard and type of judiciary that is appointed.
The committee takes the view that our present system of appointing judges should be retained. It feels that the government has sufficient non-partisan advice from the Judicial Appointments Advisory Board and that it, as the executive of the elected representatives of the people, should retain the final decision.In this Bill, Deputy Ross proposes that Members of the Oireachtas should choose our judges, but only those unconnected to political parties-----
-----Deputy Ross proposes that Members of the Oireachtas should choose our judges, but only those unconnected to political parties in government, which is what is in his Bill. Of course, I read Deputy Ross's Bill before I came into the House.
No. Deputy Ross has had his 15 minutes and he has a right of reply. The Minister of State should address his remarks through the Chair without having a cross-the-floor conversation.
I thank the Ceann Comhairle.
I ask Deputy Ross to respond to what I say. I have read the Deputy's Bill, I have read the comment, and in terms of what I myself said, I acknowledge that the Bill makes reference to the political parties that are in government. I ask, before he launches any attack on what I have to say, that I might be afforded the luxury of saying it. I can assure the House that one of the first things I read this morning was the Bill that Deputy Ross brought forward, before I read anything else.
Moreover Deputy Ross entirely ignored views previously expressed on this subject by Members of the Oireachtas following the report of the Constitution Review Group in 1996, and the follow-up progress report of a committee of this House in 1999 Both reports rejected changes of a substantive nature to the judicial selection process under the current constitutional arrangements. He makes these proposals without regard to the academic discourse on the question of judicial selection and, indeed, without regard to the basic tenets of representative democracy and constitutional governance. This is a unique proposal - it is a model of judicial selection rejected by everyone in the common law world who has considered these matters over the last 60 years.
I will conclude on this point. In every other comparable common law country that has established such a board, Scotland, England and Wales, Northern Ireland, parts of Canada and Israel, such a commission includes members of the legal profession and judiciary. I will end on that note.
I assure Deputy Ross that I read his Bill. I was aware of the distinction he made regarding who would serve on the committee but I conclude by asking for an example of how the interference that he has alleged has had an impact on the independence of the Judiciary, which has been a cornerstone of the functioning of the country since its foundation.
The Minister of State will have five minutes to reply at the end of the debate.
There is a lot of interest in this Bill. The following Members have indicated to me that they wish to speak: Deputies Finian McGrath, Niall Collins, Caoimhghín Ó Caoláin, Joan Collins, Wallace, Mattie McGrath, Halligan, Catherine Murphy, Maureen O'Sullivan, Pringle, Luke 'Ming' Flanagan and Róisín Shortall. Is there anybody else? Deputy Clare Daly. We are short enough on time and I want to try and let everybody in. Will Deputies be cognisant of the fact that they have colleagues who want to speak? With, maybe, three minutes or so each, everybody gets a chance. Is that agreed? Agreed.
I remind Members that in Private Members' time, those guaranteed to speak are only the proposer and the Minister to reply, and after that it does not revert from Government to Opposition. This is Private Members' time and a Member is called as he or she indicates. Is that agreed? Agreed.
I thank the Ceann Comhairle for the opportunity of speaking on this important debate on the Thirty-Fourth Amendment of the Constitution (Judicial Appointments) Bill 2013.
I thank and commend my Independent colleague, Deputy Ross, for bringing forward this legislation as part of the overall reform debate. Deputy Ross has shown great courage, vision and leadership on this urgent matter to remove Government control of the system of judicial appointments.
This radical and sensible change also shows clearly how Independent TDs not only talk about reform, but do something about it. A fortnight ago in the Dáil, I and my Independent colleagues brought forward the Down's Syndrome (Equality of Access) Bill 2013 to help children get proper resources. Today, Deputy Ross brings forward new and fresh changes to the justice system that will lead to independence, transparency, accountability and genuine integrity and professionalism of the judicial appointments system. I urge all Members to support the legislation because it is all about reform and change. Now is not the time for the Minister to sit on the fence, say nothing and reject proposals that make sense.
The Bill provides that judges will no longer be appointed by the Government and the Constitution will be changed. All judges will be nominated by a judicial council. The judicial council will be drawn from a broad spectrum of society. That is important, new and fresh. The names will go from the judicial council to a joint Oireachtas committee with non-government majority which selects the nominations for the President, who then appoints.
I note the Minister of State, Deputy Donohoe's reaction to some of the proposals. Some of his response was a gross misrepresentation of the legislation, but I will leave it to my colleague, Deputy Ross, to challenge him on those inaccuracies.
The Bill is part of the reform. We all got elected on the reform agenda. We have seen in recent days the debate about the justice system and the issues that have gone on in society. Today, we are putting forward important concrete changes.
The citizens of the State need to have trust and confidence and they need a justice system on which they can rely, and there has been a dint in the confidence of the victims of crime and the citizens of the State. There has been the James Sheehan case. On many occasions, I raised the Peter Preston case, and I wonder was there anything in this that was rejected by a number of Ministers. There has also been the Shane O'Farrell case where a garda informer and drug dealer was let off scot free. This 19 year old student was killed on the roads. These are the issues that have to be dealt with.
I welcome the legislation. It is about justice, equality and transparency. I thank my colleague, Deputy Ross, for bringing forward this progressive legislation.
Fianna Fáil welcomes the opportunity to contribute to the debate on the mechanisms used to appoint personnel to the Judiciary, which is central to the branch of government in this country. The rule of law is the bedrock of democracy of our society. It means all citizens can rely on a set of predictable, stateable rules to govern society that are independently interpreted. As a third branch of government, the Judiciary has a pivotal role to play in the stability and continuity of the State through the application of the rule of law. Ensuring we have best and brightest wielding the gavel, independent of political or personal pressure, is vital to the proper administration of justice in the State. The ongoing debate about how we appoint judges is an important discussion that directly has an impact upon the concept of democracy. The Minister's consultation period on the future of the appointments process has prompted a lively debate on how best to structure our judicial branch. We have seen the hard-hitting document of the judicial appointments review committee, composed of senior judges, and the comments of Chief Justice Susan Denham on the principle that political allegiance should have no bearing on appointments to judicial office. The report stated: “It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system”. That body represents 90% of Ireland’s judges. The comments must be taken in the context of an appointments system that governed the judges now making such comments.
There are real concerns about how we appoint judges that need to be addressed. With regard to judicial powers, the Judiciary is far from non-political. Article 40.3° of the Constitution allows judges to take an activist approach to interpreting the Constitution. Their decisions have direct political consequences. The existence of unenumerated rights in the seminal 1965 Ryan case has transformed how our Constitution has evolved. It has meant the fundamental law of the land has been able to adapt to a rapidly changing country as judges are empowered to find rights in the Constitution that are not explicitly enshrined. It has also means the Judiciary has wide discretion in interpreting the spirit of the Constitution, not simply what is explicitly written in the document. This gives them real political power. Rights such as the right to privacy in the 1974 McGee case, legalised contraception in Ireland or the controversial 1992 X case that found the right to travel have all been deeply political decisions.
It is also worth noting that, this weekend, the Constitutional Convention will debate whether to endorse the enshrinement of socioeconomic rights in the Constitution. This would expand the powers of the Judiciary to cases beyond the current civic and political rights contained in the Constitution as it stands. This level of political influence on the type of society we have and the rules that govern it underlines the need for this debate and for transparency on who we appoint to these highly sensitive and influential positions.
Deputy Ross’s Bill takes a radical approach to the issue and involves a referendum to reform the appointment process. Setting aside the immediate argument of whether to change the appointment process in the Constitution, the complex challenge of passing it via a referendum under Article 46° presents a real practical problem. The failure of the Seanad and Oireachtas inquiries referendums revealed the understandably sceptical approach Irish people take to constitutional amendments. Even the children’s referendum, seen by many as a valid issue with complete cross-party support, was opposed by 42% of voters on an abysmally low turnout of 33%. A referendum on changing the appointments process would instantly face the headwinds of voter fatigue on constitutional change and innate scepticism in upholding the Constitution. If a referendum was to be held before the next general election in early 2016, it would be posed alongside the promised marriage equality referendum, possibly in 2015. If not, the issue will be part of the general election campaign and be entrusted to a new Government.
Fianna Fáil believes we can take a constructive approach to changing the system without the need for a referendum. Fianna Fáil has introduced legislation to tackle the longstanding problems in the judicial appointments process. Our Bill is based on the declaration of the European Network of Councils for the Judiciary on the recruitment and appointment of members of the Judiciary. At present, the law simply requires the Judicial Appointments Advisory Board to recommend to the Minister for Justice and Equality at least seven persons for appointment to that judicial office. The Minister may or may not accept the recommendation. Under our Bill, a new judicial appointments board would be established and the existing Judicial Appointments Advisory Board would be abolished. Instead of recommending seven persons for appointment to judicial office, the judicial appointments board would recommend for appointment by the Government candidates who it would certify as the best candidates for appointment to that judicial office. This would ensure high calibre candidates are drawn upon to fill judicial vacancies. This process would be fully open and transparent, in contrast to the behind the door approach taken to date with the Judicial Appointments Advisory Board.
The judicial branch is a vital part of our system of government. It is the cornerstone of the rule of law. Having a genuinely independent Judiciary, free from political pressure, is central to a functioning democracy where citizens have recourse to justice. It is also a deeply powerful position with real political consequences. We need to construct an appointments system that reflects this pivotal role. Fianna Fáil has put forward its proposals based on European best practice to create an open, transparent and reliable system of appointments. Our Bill will not require constitutional change and can be legislated for by the Government immediately.
The challenge is to balance the independence of the appointments process with accountability. It is a difficult balancing act. There is a certain inconsistency in the Bill proposed by Deputy Ross. I listened to him and I have spoken to him and I appreciate what he is trying to achieve. I have an issue with saying that all judges in the current complement have been politically appointed and saying that it is wrong without backing it up by pointing to any wrongdoing. Taking the appointments process away from the present system and giving it to an Oireachtas committee is a little hypocritical. This is saying the current political process is wrong but moving it to committee of the House is similar and a parallel political appointment process.
One of the biggest sectors in Irish society is the local government sector. The most powerful people in it are local authority managers, who are appointed by an independent commission. They have huge reserved executive powers and the local authority members, who are directly elected by the people, cannot challenge them. I think that is wrong. They are appointed by a body that is answerable to no one. We need an appointment system for the Judiciary where someone can be held politically accountable and answerable. We will not get it if we have a system behind closed doors that locks out public representatives. Public representatives, of the Government side or otherwise, must have a say in the appointment of judges. There has been criticism of the current Judicial Appointments Advisory Board but, to its credit, only two judges have been removed for obvious reasons in the public domain. These are former judges Curtin and Heather Perrin. No screening appointments process would have screened what they were up to, which led to their removal from the bench. That must be said in the defence of the Judicial Appointments Advisory Board. It is a welcome debate but we must have accountability of government and independence in the appointment of the Judiciary. I do not subscribe to removing everything and giving the appointment of senior positions to people who cannot be held accountable if something goes wrong. Accountability is what is being in government is all about.
I welcome the opportunity to speak about Deputy Shane Ross’s judicial appointments Bill. I commend him for his preparation of the legislation. My party, led by our justice spokesperson, Deputy Pádraig Mac Lochlainn, published the Reform of Judicial Appointments Procedures Bill 2013 in January last year which, in a similar vein to Deputy Shane Ross's Bill, sought to increase transparency and accountability in judicial appointments. Confidence in the justice system is contingent on having a Judiciary free from political control or political or other bias. It is essential that there be an independent and impartial Judiciary which is representative of the community it serves. A "truly representative Judiciary" would enhance confidence in the justice system, promote the development of a non-partisan Judiciary and advocate a culture of judicial independence. Future judicial appointees should be drawn from a wide pool of qualified candidates that fully represents the community as a key step towards the eradication of a corrosive and unaccountable system of patronage. We must not allow a "jobs for the boys" attitude to permeate something so fundamentally important as the administration of justice in the State. As well as increasing transparency and accountability in the appointment of judges, we want to see a judicial council and complaints body that would hold judges to account, with a code of ethics by which they should abide. This Government should be the very last to make political appointments to the Judiciary.
When we published our Bill last year, it was part of Sinn Féin’s campaign to end the political cronyism embedded in Irish society. For too long we have all been aware of stories from across the State of judges being appointed after their loyalty had been demonstrated to either Fianna Fáil, Fine Gael, the Labour Party or the so-called Progressive Democrats. The days of the old boys' club that has dominated the legal and political spheres in Ireland must come to an end. An investigation undertaken by the Irish Independent - if I dare quote it - in November 2011 highlighted that one third of the country’s judges had personal or political connections to political parties before being appointed to the Bench. Some 56 of the 168 judicial appointees made since 1995 had such connections. They were each appointed after the introduction of the Judicial Appointments Advisory Board, JAAB, an agency designed to take judicial nominations out of the political arena. In the majority of cases, the judge's links were with one or other of the parties in government at the time the appointment was made. In other cases, the judges were relatives of leading political figures. Sinn Féin believes judicial independence is undermined by the current appointment process. The Judicial Appointments Advisory Board was established in the wake of the controversial appointment of Harry Whelehan as President of the High Court in 1994 and meant to have removed sole discretion for judicial appointments from the Government. However, there is still too much political involvement in the appointment of the Judiciary, as the Judicial Appointments Advisory Board merely provides a list of seven qualified candidates for the Government which, in turn, makes the appointments of judicial officeholders.
Although in agreement with the intention of the Bill, Sinn Féin does not agree with the model Deputy Shane Ross prescribes. It believes there should be as little political involvement in the appointments process as possible and this is where we differ from Deputy Shane Ross who in his Bill wishes to see the appointment of judges by the President on the nomination of a joint committee of both Houses of the Oireachtas. In our Bill we propose to make the following changes to the Judicial Appointments Advisory Board make-up. It should include the chairperson of the Irish Human Rights Commission who would be the chairperson of the board; the Chief Justice; the Presidents of the High Court, Circuit Court and District Court; the Attorney General; a practising barrister who would be nominated by the chairman for the time being of the Council of the Bar of Ireland; a practising solicitor who would be nominated by the President for the time being of the Law Society of Ireland; and not more than four persons appointed by the Minister who would be persons engaged in or have knowledge or experience which the Minister considered appropriate of commerce, finance, administration or persons who would have experience as consumers of the services provided by the courts that the Minister considered appropriate. It is notable that the number of lay representatives to the board would be increased from three to four in order to ensure there would be meaningful lay representation in keeping with Good Friday Agreement equivalence obligations.
We have also sought to define the criteria for appointments more fully, as what we currently have is somewhat ill-defined and overly subjective. Sinn Féin believes the criteria must be transparently meritocratic. Section 10 of Sinn Féin's Bill would also oblige the Government to make public the reasons for appointing an individual to a position within the Judiciary. Key to all our considerations in drafting was transparency and the restoration of public confidence in the system.
I will briefly reference and recognise the work of the Judicial Appointments Review Committee led by the Chief Justice, Mrs. Justice Susan Denham. At the end of last month she spoke out on behalf of the committee in a very welcome contribution on the need for a new system of judicial appointments, calling on the Government to depoliticise Ireland’s "unsatisfactory" judicial appointments process and for the introduction of new laws to ensure judges were appointed "on merit". She also called for the establishment of an independent judicial council to oversee issues such as appointments, pay talks, complaints about judges and judicial education, warning that "great damage" was being caused by the absence of such a body. These comments are very important in the context of Deputy ShaneRoss's initiative and she went on to say "political allegiance should have no bearing" on appointments to judicial office. Sinn Féin's Bill was prepared and presented for the achievement of that very goal. My party and I commend Deputy Shane Ross's addressing of the need for substantive reform, but we do not believe the model he has laid down before us is the best one to deal with judicial appointments. That said, we are happy to support the passage of the Bill to Committee Stage, on which we would have the opportunity to properly debate it, amend it appropriately and, I hope, bring it more into line with the model proposed by us early last year, which is the better approach. I thank Deputy Shane Ross for his work and hope the Minister will take this opportunity on board and allow us to progress to a system in which we would all have confidence.
Before calling Deputy Joan Collins, I ask Members to be conscious of the number of speakers. It is delightful to see so many Deputies wanting to speak and I want to try to get everybody in.
I do not want to eat into the time of other colleagues.
This debate on the Judiciary is important because many ordinary people have seen the system as not just an example of political patronage but of class issues. For decades judges have been picked from people who were able to attend college and university. Successive Governments have exemplified in the minds of many people a system of political patronage with the Judiciary and Garda systems. That is the feeling in many communities across the country. What is key in this debate is the need for a step towards transparency, democracy and accountability. It should be seen by ordinary people that the system they could face is transparent.
The judicial appointments board suggested by Deputy Shane Ross to consider applications to fill judicial positions is an important element of the Bill. There is nothing prescriptive in it about the make-up of the board.
Taking on board the views of a human rights advocate, I believe others from across the spectrum could be on the board. This is to be debated or proposed further down the line. Community groups should be included. I refer to FLAC, Advic and those with considerable experience in dealing with how decisions are made in the courts and how people are treated therein. The nature of the judicial appointments board is to be decided but the principle in the Bill represents an important, radical change that would have a considerable impact on people's view of the judicial system.
It is important that there is clear water between politics, the judicial system and the Garda. If there is no clear water, it can only lead to suspicion, even if there is nothing untoward. In many cases, there have been miscarriages of justice not necessarily because of political patronage but because of the system itself. That judges can be politically appointed adds to the problem, however. That they can be friends, relatives and family members of those involved in politics presents a problem.
The Bill is very important. The involvement of an Oireachtas committee with a majority of non-Government members is required, and this must be made very clear. The Bill uses the wording, "the majority of whom are not affiliated to the political parties who form the Government". It is important that the process be seen to be taken out of the control of the Government. We all know that when Fianna Fáil was in power, there were Fianna Fáil-appointed judges. Under Fine Gael and the Labour Party, there have been Fine Gael-appointed and Labour-appointed judges. This must change, as must the sense of privilege. This Bill goes a long way towards that.
I thank Deputy Wallace for swapping his time with me today because I have to leave soon.
I compliment Deputy Ross on introducing this Bill. It is not a knee-jerk reaction but legislation that has been drafted carefully and examined over a number of years. The Minister of State, Deputy Paschal Donohoe, read out the script of the senior Minister, Deputy Shatter, who is on Government business. I understand the latter is at an informal meeting, a matter of defence. I raised before the question of whether the Minister for Justice and Equality should be in charge of two Departments, responsible for both justice and defence. I questioned that a number of times in this House. The Minister's business is in Ireland today. Considering all the turmoil, I suggest respectfully that he come to the House.
The Minister of State asked for examples of where circumstances were a bit scary in respect of judges. I can put my hand up and state I have personal experience that I can share. It is well documented in the press and Deputy Ross's book. There was the Fr. Niall Molloy case and colleagues have mentioned many others. Mr. Justice Cooke - who has been appointed by the Minister for Justice and Equality to review what the latter, rather than anybody else, wants to review - his history is not unblemished. Let me quote articles in this regard. They are in the public domain in case the Acting Chairman is worried. One headline states, "Judge Cooke lands in the soup". The Minister is now in the soup. It was once said Mr. John Bruton would use a fork to try to eat soup. If the Minister were eating soup these days, he would have a spring at it; that is what I think about him.
Happily for all parties in the court case with Mr. Cooke and Mr. Seamus Maye, whom I happen to know and who has been blackguarded by the justice system and by this particular judge, he had to withdraw from the case. Luckily for the judge, he did not know he had shares because he had advisers buying them for him. He bought more after the court case began but luckily he did not know either. We will give him the benefit of the doubt; he is so wealthy he did not know. Is he the person the Government is now putting in charge of the important issues concerning the Garda Síochána Ombudsman Commission and the Garda whistleblowers? This lacks any shred of credibility and it is disgraceful.
An article by Dearbhail McDonald revealed that some senior judges had lost €250,000 in various investments. These investments include investments in Anglo Irish Bank. Every day of the week we hear such stories. In the case of IBRC, people are brought before the eminent justices who are up to their necks in the banks. How could that be justice? How could they be so removed and above political and human consideration when they have a vested interest in the banks and when they are under pressure to make repayments themselves? What is happening stinks to high heaven. The Minister of State, Deputy Donohoe, must know it; if he does not, I do not know what planet he lives on.
The Vincent Browne show is more appropriate for the Deputy. He is welcome to go on again. Mr. Browne is looking for the Deputy on any night he wants.
Why was Mr. Justice Kelly forced last Tuesday week to withdraw from a High Court case that Irish Life & Permanent was taking against a lay litigant, whom I commend on his courage and whom I will not name but whose name is in the public domain? Affidavits were sworn. The judge, having been asked previously to withdraw, was asked again because he had a financial interest in the financial institution. I rest my case. The matter stinks to high heaven. We need a judicial council and not the jabs, jibs or blunders the Government has set up and under which it is operating.
Victim support groups, community organisations and many other vehicles could be examined to remove the process from the stinking political trough it is in and in which the Government wants to keep it. The Government has appointed more political associates since coming into office on this occasion. It is actually punishing the previous Government for keeping it out of power for 14 years, during which time it could not get its boys in. Last year the Minister for Justice and Equality put a referendum question to the people without debate so as to appoint a new layer of judges. Unfortunately, the people fell for it but we have to accept their decision. The Minister is to appoint all his own friends again. He had better come back from his travels, wherever he is, and deal with the issues before the public comes screaming for him.
This Bill certainly improves the current arrangements whereby the Government, and more particularly the Cabinet, has complete control of all judicial appointments. The suggestion that the judicial appointments council be composed of members selected from a broad spectrum of society is an interesting one and it would certainly improve democratic accountability. Since the current arrangement is wholly imbalanced, with seven out of ten representatives with a legal background on the Judicial Appointments Advisory Board, some input or recommendation from a proposed candidate's peers or colleagues as to his or her merit and integrity could be beneficial. In this regard, I suggest that a representative from the Bar Council or Law Society remain on the board of ten but that this influence be balanced by the remaining ten members, representing civil society.
The proposed process provides a more even distribution and balance of power between the three arms of the State – Legislature, Executive and Judiciary. The proposed arrangement is more faithful to the separation of powers principle enshrined in the Constitution than the current one, which excludes the Legislature almost completely from the process. Unfortunately, the nomination of judicial candidates is just one example of this imbalance of power in our political processes whereby the power of the Executive – I mean the Cabinet rather than the Government – has been increased and concentrated at the expense and to the detriment of the power of the Legislature, which includes the entire Dáil, even Opposition Deputies. The delicate system of checks and balances intrinsic to the separation of powers principle has been gradually eroded within the current political system.
A final example of what can go wrong when judicial appointments are political and when judges are too close to political parties is the case of Fr. Niall Molloy's murder. Mr. Justice Frank Roe was appointed President of the Circuit Court just before Richard Flynn was tried for the manslaughter of Fr. Niall Molloy in 1986.
Judge Roe was a personal friend of Richard Flynn, the defendant. Despite this fact, he first decided to assign the case to himself, in an extreme abuse of the power that came with his role as President. He then withdrew the case from the jury after three and a half hours, without letting it consider any of the evidence and directed it to acquit. One eye witness reported that the then deputy leader of Fianna Fáil, Brian Lenihan Snr., was in the room which was the scene of the murder.
Although I welcome the eventual appointment of Dominic McGinn, senior counsel, to review the Garda investigation into the Fr. Niall Molloy murder and hope the facts and background to the case, to include its strongly political background, can finally be ascertained and that the family of Fr. Niall Molloy may gain some justice and peace, it is yet again a shame that this decision to review has only come after a delay of almost 30 years. If the Minister, Deputy Alan Shatter, would only decide matters based on his ministerial responsibilities to justice rather than on political motivations and his own political survival, we might see more decisions based on transparency and accountability and fewer underhand tactics employed such as delay and confusion, dismissal of allegations, discrediting of real victims such as whistleblowers and the Garda Síochána Ombudsman Commission, GSOC, and misrepresentation of law and fact. These tactics never work on a permanent basis, as the Minister is now discovering to his peril. The truth generally comes out.
I refer to the Minister of State's opening remarks regarding impartiality, independence of judges and political influence. Many people in the country would say judges have an honourable record in terms of independence from the Government. I cannot readily cite an instance where a judge's political background influenced a decision from the Bench. However, if there is nothing wrong with the system, why is the Judicial Appointments Review Committee calling for radical change in how it operates? Why are judges admitting on record to using political influence to ensure their appointment? The president of the Association of Judges of Ireland, Mr. Justice Peter Kelly, during an interview acknowledged that people who would be excellent judicial appointments were passed over in favour of people who were not so well qualified.
The manner in which successive Governments have appeared to appoint their own supporters to judicial office has been widely acknowledged. There is no transparency in a system under which Ministers are handed a list of nominations and can select whatever appointee they choose, regardless of qualifications, skills or experience. That is simply unacceptable in 2014. The Judicial Appointments Advisory Board which was established in 1995 fell short of changing the appointment system. The board is little more than a filtration system for the Government. It has no input into interviewing candidates and does not hold any sway if the post refers to the presidency of the court or if the vacancy is being filled by promotion of a judge from a lower court by the Government.
Public confidence in the Garda and GSOC has already taken an irreparable hammering. How can a Government elected on a mandate of accountability and reform expect to retain public confidence in the justice system under the current structure? It is not viable or acceptable.
We are also doing judges a great disservice under the current system, since there is a common public perception that they received their appointment as a political perk on the basis that the party they support happens to be in government. Our judges deserve better than this. The newspaper section I was showing the Minister of State earlier is a two-page spread from the Irish Independent. It shows 60 judges who all have close affiliations to Fine Gael, the Labour Party, Democratic Left, the Progressive Democrats and Fianna Fáil. Many of them were members of these parties. It is indisputable that almost all judges are appointed under political influence. The Minister of State should read the Irish Independent and about the 60 to 70 judges mentioned who all have close associations with political parties. Actually, many of them have been members of parties, yet the Minister of State says there is no political influence. That is unacceptable to the people. In bringing the Bill forward Deputy Shane Ross is presenting the Government with a clear opportunity to prove it is not a proponent of jobs for the boys. The people clearly want change, as does the Law Society of Ireland and the Chief Justice. The only body fighting to preserve this defective system is the Government.
I thank Deputy Shane Ross for bringing forward this Bill. First, I wish to draw attention to Article 35.2 of the Constitution which states, "All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law". Is our method of appointing judges in keeping with this? I believe it is not.
In the debate on Second Stage of the Twenty-ninth Amendment of the Constitution (Judges' Remuneration) Bill in September 2011 the Minister for Justice and Equality, Deputy Alan Shatter, said:
The Irish Judiciary holds a unique place in the structure of our democracy, required daily to adjudicate on disputes between citizens and the other branches of the Government and for that reason it is vital that its independence is protected from all potential attack. The respect for and confidence in judicial decisions is based on the confidence that every person who enters a court is secure in the knowledge that the judge is independent of the State and not subject to interference or threat irrespective of the outcome of the litigation. This safeguard is fundamental to our constitutional system.That indicates a thinking that there must be independence in how judges are appointed.
The Minister of State asked us to give examples. I will not bring forward examples, but I will refer to the remarks of the Chief Justice, Mrs. Justice Susan Denham, in her very unusual and rare intervention on behalf of all judges. She said, according to an article in The Irish Times recently, "It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of, the appointments system." That is a serious point. Essentially, a democracy requires checks and balances. For the last three weeks we have been consumed by an issue that arose because of the absence of the checks and balances required. Clearly, there is the potential for a serious problem to arise. The article continues by stating judges are critical of the flawed and deficient consultation initiated by the Minister for Justice and Equality, Deputy Alan Shatter. The Minister of State has lauded that process, but the judges say, "Most fundamentally of all, however, the process itself is being initiated by a member of the Executive, and will apparently be decided upon by the Executive without further discussion."
Our problem is that we have an over-centralised system of governance, in which the Executive has an enormous amount of power. That is not what was intended by the framers of the Constitution. There was to be a separation of power between the Executive and the Oireachtas. As we saw in recent days, GSOC is supposed to report to the Oireachtas, but it was the Minister who appointed the judge and it was the Minister and the Attorney General who drew up the terms of reference. The Government is exceeding its powers all the time, to the detriment of the Oireachtas. That is very dangerous territory.
There are things about the Bill I would like to change but it needs at least to get to Committee Stage to refine it. Under the current system the Judicial Appointments Advisory Board, JAAB, cannot rank applicants for positions and the Government is not required to select from the list. What is being sought is that people should be promoted on the basis of merit. One of the improvements sought by Mrs. Justice Susan Denham is the provision of an education process within the legal system in order to determine suitability. Only recently we saw the need for that when a judge clearly indicated a considerable lack of understanding in a rape case and the impact it had on a victim. There are aspects of the courts system that manifestly need to change. One of the first things that needs to change is how we appoint judges.
We all accept that transparency and accountability are very fine principles but we hear the words so much - there is possibly over-use – that there is a danger of them becoming clichés and therefore meaningless. We cannot allow that to happen because transparency and accountability are very much part of democracy and the democratic process. The Bill also contributes to transparency and accountability. Ba mhaith liom aitheantas a thabhairt don obair a dhein an Teachta Dála Shane Ross i gcomhair an Bhille seo.
I was also struck by one aspect of Article 35, namely, that judges shall be independent in the exercise of their judicial functions. It makes sense that the process of appointing judges is also an independent process and that it is visibly independent. Various comments have been made about decisions made by judges within the system. Like any system - human nature being what it is - decisions made by judges have been criticised by civil society groups, organisations and individuals where they were most unhappy with the decisions. Taking judicial appointments out of the political arena could only enhance democracy.
Individual members of the Judiciary have expressed their concerns about the system. For example, the European Network of Councils for the Judiciary issued the Dublin declaration on standards for recruiting and appointing judges. Chief Justice Denham saw it as a possible new standard for appointing judges. The Minister welcomed the declaration. He said a better architecture could be put in place than exists at present. The Bill could be part of that architecture.
There were a number of themes in the public consultation the Minister initiated. Again, Chief Justice Denham raised one that he had omitted, namely, the need to recruit persons of highest quality and ability to the Judiciary. Judges themselves in each of the courts are supportive of the call for a different process of judicial appointments. We know that we are losing so much confidence in our systems and institutions, therefore it is vital that we start the process of restoring confidence. Taking the appointment of judges out of the hands of the governing political parties is a step in the right direction.
I was struck by a quote from a judge. The point that was made is that it is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of rather than because of the appointment system. The other telling words in the quote are “relative success”. Judges perceive there to be difficulties within the system. The current system is a flawed process. In addition, it was said that the process of judicial appointment should first and foremost enhance the principle of judicial independence upon which the rule of law in our democracy is built. That is what Deputy Ross’s Bill is doing.
I found one part of the submission by judges disquieting and disturbing. It is where they make the point that high quality experienced candidates will not be attracted to the Bench because of recent changes to their pensions. Judges are very well paid and they can look after their own pensions from the remuneration they receive.
I support the idea of the broad spectrum of society but I have reservations about the process involving an Oireachtas committee. I would prefer to see the entire system taken out of the hands of those in political life.
I commend Deputy Ross on the publication of the Bill and bringing it before the House. It is a tribute to him and the work he has done on the issue.
I fully agree with Deputy Ross about the Minister’s absence from the House, especially when one sees the type of response that has obviously been drafted by him. It does not add anything to today’s debate. In his contribution the Minister referred to how in December he announced a public consultation process on the formulation of proposals for Cabinet on how to change judicial appointments. In the very next paragraph he made the point that he has already formed the view that the system of judicial appointments that is in operation is very much of its time. One could ask why he announced a public consultation process if he believes there is nothing wrong with the system and it works perfectly.
The Minister refers at another point to Deputy Ross’s spurious and disingenuous claims. The Minister is the king of spuriousness and disingenuousness because the tone and tenor of the response to the Bill smacks of that. The fact that the Minister would allow such a claim to be made in the House is disrespectful. The very least we could expect is that he would look at the legislation and provide a critique of it rather than being so rude in response to it.
I understand the Minister could not guarantee that the Government would provide time to debate the Bill. If the Bill had been withdrawn it would have to go back into the lottery and God knows if it would ever have reappeared for debate.
The system of judicial appointments must be reviewed. A number of speakers referred to the fact that the Judicial Appointments Review Committee said the system of judicial appointments in Ireland is demonstrably deficient. That says a lot. They said the system must be reformed so as to secure the selection of the very best candidates and contribute to the administration of justice in a manner that will sustain and enhance public confidence.
It has been outlined by judges that there is a real risk that the best candidates will not be selected because they are not affiliated politically. That is the approach the Bill seeks to change. The political system that Fine Gael, Labour, Fianna Fáil and the Progressive Democrats - when the party existed – are embedded in does not want such a change because they want to maintain a system of patronage. When one examines the appointment of judges one see former chairpersons of cumanns, former town council mayors, former Deputies, former councillors and the children of former Deputies and councillors. One sees exactly how someone gets to be appointed as a judge in this country.
It is a tribute to the Judiciary that there has not been undue political influence in spite of the certainty that there must be political influence to get appointed. It is a blessing that we cannot openly point to cases where political influence has influenced judgments. However, it is a lot more subtle than that because judges know that they got to where they are due to their political affiliations and they know at a subliminal level that they should not rock the boat in order to ensure the system continues.
In its submission the Law Society said the current system whereby a list of potential names is supplied to the Government and the Cabinet chooses from the list leaves the system open to accusations of political allegiance, and that has played a part in appointments. There is no doubt about it. The only way one gets to be appointed as a judge is by having political allegiances.
The Minister makes much play of the JAAB. He describes it as being of its time. He said that “Unfortunately, to date JAAB has not conducted such interviews”. We have a judicial appointments board that has never conducted an interview of a potential candidate for a job. That is a most unbelievable system that could operate in a democracy. It is disingenuous of the Minister to send a Minister of State as a proxy to rubbish the Bill in such a way. The Bill should be treated with respect by the House and it should be debated. The Government will vote against it in order to continue the system of patronage.
Whether it be in the Judiciary or the House, a perception of bias in the adjudication of decisions, no matter how unfounded, is corrosive. We need to change the situation in this country where people rightfully believe we are not all treated equally.
Whether a judge was corrupt, that judges were chosen to make certain decisions in a certain political direction is wrong. I apply the same to this House. It is no slight on anyone in the Chair, but the perception that there is bias in adjudication in this House is also corrosive. This issue was broached by the Leader of the acceptable Opposition, Deputy Micheál Martin, yesterday when he suggested the Ceann Comhairle was not being fair to the Opposition. I will let him make that call; one would not want to get into that argument, but the perception that there is a problem means that it is a problem.
My office in Castlerea has a window which looks out onto the courthouse, in which I have been a few times - I have actually been in prison a couple of times. There is something very noticeable, whether one is in the dock in court or looking through my office window across at the court, and it is that it is the rich guys wearing their fancy clothing who decide the future of the poor guys. This is not perception, it is fact. Deputy Joan Collins came at it from the point of view that certain people did not have opportunities, which is correct. It is from this point that the bias begins and it never goes away. In this country it does not just end at this point. A Roscommon man of the year can be killed and one can come in here and state senior politicians were there when the death occurred and no one even gasps or says, "Stop, Deputy Wallace, do not say that." No one can say that because what he said was true. If one believes a member of the Garda Síochána was involved in a rape or covering up a rape, how can one expect a victim to trust the system when a man of the year, a really well known man, Niall Molloy, was killed in the most dodgy circumstances of all time? How can a citizen have any confidence in the system?
I am an atheist, but I am starting to believe there is a God because it is brilliant timing that Deputy Shane Ross's Bill has come out in the magic lottery. While I agree to an extent - 99% - with the statement of the whistleblower, John Wilson, that people have nowhere to go, in another way this is the time, as there is a chink of light coming through the window which has been opened a fraction. I challenge those people who have come to me, those who have not yet managed to come to me and those who have come to Deputies Clare Daly, Mick Wallace and Joan Collins to take advantage of the fact that there is oxygen and use it to boot open the window, even if there is a smashing of the glass and a ripping of the frame from the wall, and run through the hole to find freedom at last. They should go on their local radio stations and tell their stories. Whether they are members of the Garda Síochána who know what is going on, members of the public who are persecuted because they are single mothers and a target or because they have a relation who was killed and have not got justice, they should go on radio. They should get onto their local politicians and ask them what they will do about it. They should ring my office; in a way I cannot believe I am stating this because my office is already completely snowed under, but they should get in contact with us and we will get their stories out. It is now or never. There is oxygen and they should make use of it.
I am glad to have this opportunity to speak in the debate. I commend Deputy Shane Ross for taking the initiative which is timely, given the backdrop to this debate.
It is essential to have public confidence in the judicial system that the Judiciary be seen to be independent of the political system. Patently this is not the case and I am disappointed by the Minister of State's response. There was a time, not all that long ago, when he would not have dreamed of stating some of what he had to say this morning. For a Minister of State so recently appointed he has learned many of the old tricks very quickly. Challenging people to mention occasions on which the Judiciary displayed its political affiliations is an old trick. The Minister of State knows the restrictions on us in doing this. However, some have gone ahead and named names, but the Minister of State is very well aware of the restrictions on us. As Deputy Maureen O'Sullivan stated, many civic society organisations and others outside the House have drawn attention to the political bias shown in many judgments. Many of us share serious concerns about the political orientation of some judgments and some of the findings of various tribunals which clearly indicated a political bias.
The system we have in place is not good for confidence in the justice system or the Judiciary. It also does a disservice to those working in the legal area who aspire to becoming judges and are forced to play the game. Nobody on either side of the House would deny a game is played. If one wants preferment and promotion, there is no question but that one must kick with the right foot, depending on which parties comprise the Government of the day. We have all seen this happen. As somebody stated, the Irish Independent has drawn attention to this being the case. The political affiliations of various appointees are very clear and we see it happen on a regular basis. In the past I witnessed it in the party of which I was once a member. If it looks like a party will get into government, suddenly members of the party who are members of the legal profession become very active and they are forced to do pro bono work for the party. They are obliged to make donations and befriend members of the parliamentary party to have some chance of being promotion when the party is in government. The system which operates is very unhealthy.
The Government promised reforms, but it has not implemented any; it has not opened up the system or made it more transparent. Fianna Fáil engaged in this practice in spades during its time in government, but rather than tackling it, cleaning it up and introducing reforms, the Government wants to put its snout in the trough, just as the others had done for so long. There is a strong sense that now they have their hands on the levers of power and access to the goodies, they will not waste them. That is the clear impression one gets from Fine Gael, in particular, but also from the Labour Party.
The system is unhealthy and undermines public confidence in the Judiciary. It makes for a very unhealthy justice system. This very much plays into the other major issues in the news which are the cause of so much concern to the public. There is a clear lack of transparency and accountability. Rather than the Minister challenging this attitude and how the system works, he is complicit in engaging in the type of cover-up we have seen in recent months and in a failure to champion and support those who had the courage to come forward and speak as whistleblowers in a system which was obviously problematic. He failed to make it very clear that their role was very important and that those who had the courage to come forward and blow the whistle would have the support of the State in doing so and be encouraged. The opposite has happened.
Unfortunately, the Minister, Deputy Shatter, has engaged in the opposite of such championing of openness and transparency. Not only that Minister but the Taoiseach himself, the Tánaiste and other members of the Government are complicit in that. It is really disappointing and it is not surprising that in the kind of political culture of which the present Administration is very much part, the Government is not prepared to entertain the idea of a new approach to the appointment of the Judiciary because it wishes to keep the goodies to itself. I reiterate my support for this Bill and commend Deputy Ross on bringing it forward. It certainly is worthy of support and were they on this side of the House in different circumstances, many Members on the Government side would be absolutely supportive of this legislation.
I will be brief. I agree with the points made that the reverence displayed towards judges is unhealthy in any society that claims to be democratic. If one says anything about or names a judge, one almost is accused of assaulting the independence of the Judiciary. This approach is very similar to the approach that had been prevalent in respect of the Garda Síochána. Until recently, one never ever questioned the gardaí. If one does, one is subjected to an account of how crime is falling, how gardaí lay their lives on the line every day and one almost might think one would be responsible for shooting them oneself. The reality, of course, is there are good gardaí who lay their lives on the line. However, those people, like all other citizens in society, need a mechanism of accountability and transparency. This really is the root of this issue and many of the problems that are coming to the fore and about which the dogs in the street are talking at present come from that political connection. I refer to the axis of power that exists at present between the Minister for Justice and Equality and the politically-appointed Garda Commissioner. There is no doubt but that the brave and well-documented complaints of the Garda whistleblower, Sergeant Maurice McCabe, were brought to the Minister. I know the Minister discussed that issue with the Commissioner. He did not do nothing, but discussed it with the Commissioner. The Commissioner told him not to mind that fellow, he is a serial complainant, he is a bit of an nut, nothing to see here, move on. We are in the position in which we find ourselves today as a result of that close connection between those two individuals, in an appointment by the Minister of that Commissioner, which is beyond what any previous Garda Commissioner has had.
Ultimately, a judge is a person and what makes him or her different are the powers he or she has on becoming a judge. It is interesting that in a paper review of the Garda Síochána Ombudsman Commission, GSOC, - not of the surveillance and who was responsible but of GSOC's handling of the recent situation - the Government has just happened to choose to appoint a judge. It may as well have appointed me or the postman or whoever because that person is not being given any judicial powers. There is a difference there and it is very unhelpful of the Government in that regard. It is gas that a number of Deputies are relying on a publication owned by a billionaire supporter of the Government, who has clear political views, to support their arguments in this debate about political affiliations of judges. Everyone is political. I believe everyone has a right to be a member of a political party if they are mad enough to so choose but that is not really the issue. The issue in this regard is a mechanism is needed to ensure that people are appointed on merit and not because of their political views or their membership of political parties.
Absolutely appalling decisions have been made in the courts that have really damaged people in a most severe way. I have no examples of where this was done for reasons of political influence, except possibly in the case of Fr. Niall Molloy to which other Members have referred. However, there must be a reason that they were done because of incompetence or for some reason. Perhaps it was because the best people were not appointed to the jobs. There have been horrendous cases involving violence against women in which judges have given appalling sentences to which any right-minded citizen would object but there is no right to recourse. It is a fact that a number of judges were the beneficiaries of the termination of multiple penalty points and then sat in judgment on other drivers and served them with penalties. In my opinion, that is unlawful and there is a problem with the system. I am aware of a complaint currently with the President of the District Court about the criminal behaviour of a judge who tried to use his position to encourage someone not to make a complaint against a senior garda. That case is not being treated appropriately but there is no time to deal with it.
This issue pertains to no one being above the law and about everyone being accountable. Just as it now is appropriate to talk about bad behaviour of priests or is acceptable to talk about gardaí or politicians, judges must also be in that category because there is a difference between the administration of the law and the delivery of justice and people seek justice.
I thank everybody for their contributions to this debate. I agree with the point made by Deputy Clare Daly on the need to debate all our institutions and the people within them, particularly those who are conferred by society with huge amounts of power. The Deputy is correct in that regard. I wish to participate in such a discussion as much as does the Deputy, albeit I accept we may reach different conclusions in such a debate. I have listened to what everyone had to say in this debate and I wish to respond to a number of the points made. I will respond in four different areas. The first point to which I wish to respond was made by a number of Members regarding the dangers of the politicisation of the process. I refer to Deputy Joan Collins's strong statement regarding the need for clear water between politicians and the legal system. Deputy Maureen O'Sullivan stated that such decisions must be taken out of the political system. However, that is not what this Bill proposes to do. It proposes to allow Members of the Oireachtas who are not members of the governing parties in the Oireachtas to be involved in the decision-making process. If one seeks to have politics taken out of the system, this Bill does not do it as it still allows a role, albeit for individuals who are not members of government but who are politicians, to be involved in this process. If one seeks the non-politicisation of the process of appointing judges, this Bill will put in place a process that allows politicians still to play a role therein. I ask Deputy Ross in particular to respond to this point. In addition, I draw Deputy Ross's attention to what I actually said, which was to acknowledge that within this process, it of course is people who are not within the political parties in government who would be fulfilling the role he seeks. However, I put that point to Members. If their desire is for politicians not to play a role in this regard, Deputy Ross is putting forward a Bill that ensures they still do and I ask for a response to that point.
Second, I will revert to a point I made previously regarding the independence of the Judiciary. Deputy Shortall challenged me on my remarks. I am highly aware of the responsibilities that are conferred on Members of the House but also am aware of the freedoms Members of the House enjoy by virtue of having the privilege to serve in this House as Deputies. I repeat my simple request for an example of where the independence of the Judiciary has been undermined by the manner in which judges have been appointed. I believe we have an independent Judiciary that has fulfilled its functions well. In fairness to Deputy Halligan, while he made many of the points Deputy Ross will emphasise regarding his concerns on how people are being appointed, he made the point that in respect of judges' fulfilment of the role, he could not provide an example. That is what I seek because I believe the independence of the Judiciary is a cornerstone of how the State and this society should function. I believe it is an independence that has been recognised by this Government and its predecessors. I also believe it is an independence the Judiciary itself has been vigilant in protecting. If Members opposite believe this not be the case, I am entitled, despite the accusations levied at me by Deputy Shortall, to ask for an example in this regard. I again ask Deputy Ross for such an example.
Third, the Minister already has indicated he will review this process and has put in place a process by which he intends to do this. I accept completely that Deputy Ross and others might contend that the process is not substantive or will not deliver what they seek.
However, the Minister has put in place a process that reflects the concerns of some to examine how the appointment process could take place.
My fourth point is on how such decisions would be made in the system Deputy Shane Ross proposes. I will quote a politician in this House who has spoken about the pressures politicians are under. He said:
TDs would knife their grannies for a seat on the inquiry. The prospect of months of constant media mesmerises them. At an early stage one of their number will seize the opportunity to grandstand. The competition for the cameras will commence.That was written by Deputy Shane Ross. I was in the House when he made the following point in opposition to the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Bill: "I do not trust myself or any other politician to be independent in that situation." If he does not believe he could support the Oireachtas undertaking the inquiries that would be undertaken under that Bill, if he opposed that Bill because he believed politicians would abuse the powers that would be conferred on them, how can he be certain this would not happen under the Bill he proposes?
We have an independent Judiciary protected by judges and the Government. Deputy Shane Ross has strongly alleged that it is politically influenced, yet he has argued that we should put in place a process which would ensure its overt politicisation here, albeit by people who are not members of the Government parties. For that reason, while I respect and understand the intent and thinking behind the Bill, as I am sure the Minister for Justice and Equality does, the Government will not accept the Bill.
I thank everybody who participated in the discussion on the Bill. Some of the reservations expressed by Deputies on this side were very constructive. Some of those who said there should be changes to the Oireachtas committee have a fair point. It is not set in stone. In the Bill I am trying to start a process which would take the appointment of judges away from the Government. If we were to do it in a different way, I would be happy and I am happy to have heard the constructive criticisms, reservations and changes which have come from some of my colleagues. That does not mean, however, that one does not accept a Bill on Second Stage. It means that there detail which should be changed and on which we do not all agree. I am perfectly happy with this and to change it.
I will answer the Minister of State's point. The reason the Oireachtas committee is provided for with a Government minority is specifically to stop Governments stuffing their own people in an Oireachtas committee. It is a protection to stop this happening because of the record of Governments over time. I do not refer particularly to the Minister of State's Government but to every Government. I see nothing wrong with a demographic input into these appointments. I see a demographic input stopping political patronage by Governments in using their majority, as they do all the time, to appoint their cronies. Let us be honest about this. The Bill is about stopping cronyism and let us not hesitate in saying this.
The Minister of State's reply is absurd and ridiculous because it does not address the real issue. It avoids the issues by being insulting, in ways that do not matter and are absolutely wrong. I do not blame the Minister of State, although I reiterate what Deputy Róisín Shortall said. The Minister of State's performance is one which I do not think would have happened a few months ago. The ministerial appointment seems in some way to have been corrosive to his political input in this House, which is very evident in what he said about the Bill. It is a great disappointment to me that it is quite apparent that whoever wrote the script did not read the Bill properly and that the Minister of State proceeded to read it. It specifically states: "In this Bill, Deputy Ross proposes that Members of the Oireachtas should choose our judges but only those unconnected to political parties." That is not what the Bill states and that was why I interrupted the Minister of State because it was a piece of misleading ignorance that he then corrected.
The Minister of State did say it and then corrected it. That is emphasised by the first paragraph, where it is stated those on the Independent benches appear to think they are the only people who are capable of choosing the judges. That is not what the Bill states. It states the committee should not have a Government majority. It is either ignorance, laziness or a deliberate misleading of the House.
I suggest the Minister tell whoever wrote the script that he or she should read the legislation before he or she write his speeches and that he check before he comes to the House to preach this sort of ignorant stuff. He should have taken the Bill a great deal more seriously and not come in and mouth the words of somebody else who wrote his script. The Bill is about cronyism. It is about the Minister of State's party and how it is behaving. I will give an example, but I will not name anybody because I do not wish to do this. I am not falling for any of the traps the Minister of State has been setting about naming a judgment which has been affected by political interference. I cannot prove this, as I said initially and I will not be able to prove it.
There was an appointment to the District Court in 2011 of a person who may be very good and I suspect he is very good. However, he happened to be a trustee of Fine Gael, a running mate of the Taoiseach in four elections; he had been a Senator under former Taoiseach Garret FitzGerald. He had also been on the list for jobs for many years under Fianna Fáil. That tells me one thing about the system: that Fine Gael is as bad as its predecessors. It waited its turn and now it is rewarding the guys who have waited their turn. To come to the House with this tissue of legal detail which does not address the problem is insulting. I am trying to ensure two things - I am happy for this to be adapted in any way if it takes the process away from the power of people such as the Minister of State and the Cabinet: that judges will be appointed on merit and that they will be independent. I see the Minister of State and his senior Cabinet colleagues putting up a smoke screen. They are trying to defend the system as it has always been and I am disgusted that they are adopting such a blunt and insulting attitude.
I know what will happen. The Government will very shortly, maybe in a year or two, introduce a Bill which will be camouflage. It stands behind the rotten JAAB system. It is defending the justice system and refusing to reform it. It is doing exactly the same as what it has been doing with the Garda Commissioner and on other issues which have been raised in the House recently. It is a source of great disappointment to me but utterly revealing that the Minister of State is refusing point blank to reform the system. The contributions from Fianna Fáil and Sinn Féin put the Minister of State to shame. He is intent on protecting political patronage in a way which six months ago he personally would not have done and against which several years ago Fine Gael and the Labour Party were preaching.
The Minister of State and his colleagues should hang their heads in shame that they are not prepared to tackle this problem. The reaction the Minister of State has put forward in this House today is disgraceful.