Dáil debates

Friday, 6 June 2014

Reform of Judicial Appointments Procedures Bill 2013: Second Stage [Private Members]


12:20 pm

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I move: "That the Bill be now read a Second Time."

The Reform of Judicial Appointments Procedures Bill 2013 was published in January last year and it seeks to increase transparency and accountability in judicial appointments. Confidence in the justice system is contingent on a Judiciary which is free from political control and political or other bias. It is essential that there is an independent and impartial Judiciary which is representative of the community it serves. I acknowledge that the overwhelming majority, if not all, of the members of the Judiciary who have served down through the years see themselves in that light. Although I appreciate that, because of the way we have carried out the appointments, it has left the perception of political appointment, which is very unfortunate and must end.

A truly representative Judiciary would enhance confidence in the justice system and promote the development of a non-partisan Judiciary and a culture of judicial independence. Future judicial appointments should be drawn from a wide pool of qualified candidates that fully represent the community as a key step towards the eradication of the corrosive and unaccountable system of patronage. We must not allow a "jobs for the boys and girls" 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 also want a judicial council and complaints body that will hold judges to account, along with a code of ethics by which they should abide. This Government should be the last to make political appointments to the Judiciary.

We would like to see a sentencing council based on the system in England and Wales, with clear sentencing guidelines given to the Judiciary. I admire the system in place in England and Wales, as it has engagement with the public about what are appropriate sentences for particular categories of criminal offences. On the basis of what is agreed, guidelines are passed to the Judiciary. It is quite a flexible framework and judges still have a degree of discretion according to the circumstances of the individual case, although judges are expected to record the reasons for their decision regarding the sentencing for an offence. I hope the system will be implemented in Ireland.

I understand the judicial council Bill is on the way and when the time arises, on behalf of my party I will submit detailed amendments incorporating a sentencing council into the judicial council framework. I have been advised by a number of non-governmental organisations that this is the best way to proceed, although I had intended to submit a sentencing council Private Members' Bill in order to implement the model in Ireland. We want a position where the perception of political appointments to the Judiciary can be brought to an end. We can then clearly state that this is an independent and accountable system, with sentences and practices that are equally accountable. We hope to get that in the next few years through legislation.

When we published the Bill last year it was part of Sinn Féin's campaign to end the political cronyism that had been embedded - some would argue it is still there - in Irish society. For too long we have all been aware of stories from across the State of judges being appointed after their loyalty has been demonstrated to Government parties. The days of the old boys and girls club which has dominated the legal and political spheres in Ireland must come to an end. An investigation by Ms Dearbhail McDonald of the Irish Independentin November 2011 highlighted that a third of the country's judges had personal or political connections to political parties before being appointed to the Bench. Of the 168 judicial appointments made since 1995, 56 had such connections, and they were 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 to one or other of the parties who were in Government at the time the appointment was made, and in other cases, the judges were relatives of leading political figures.

Sinn Fein believes judicial independence is undermined by the current appointment process in this State. The JAAB was established in the wake of the controversial appointment of Harry Whelehan as President of the High Court in 1994 and was meant to remove sole discretion for judicial appointments from Government. However, there is still too much political involvement in the appointment of the Judiciary as the JAAB merely provides a list of seven qualified candidates to the Government, which in turn make the appointments of judicial office holders.

Sinn Fein believes that there should be as little political involvement in the appointments process as possible. We have proposed in our Bill to make the following changes to the constitution of the Judicial Appointments Advisory Board. The chair of the Irish Human Rights Commission shall be the chairperson of the board. Other members will include the Chief Justice, the President of the High Court, the President of the Circuit Court, the President of the District Court and the Attorney General. The board would also include a practising barrister who shall be nominated by the chairman for the time being of the Council of the Bar of Ireland; a practising solicitor who shall 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 shall be persons engaged in, or having knowledge or experience that the Minister considers appropriate of commerce, finance, administration or persons who have experience as consumers of the services provided by the courts that the Minister considers appropriate.

It is notable that the number of lay representatives on the board is increased from three to four in order to ensure there is meaningful lay representation, in keeping with the equivalent obligations under the Good Friday Agreement. We have also sought to define the criteria for appointments more fully as what we have is somewhat ill-defined and overly subjective. Sinn Féin believes the criteria must be transparently meritocratic.

Section 10 of the Sinn Féin Bill also obliges the Government to make public the reasons for appointing an individual to a position within the Judiciary. Key to all our considerations in drafting the Bill were transparency and the restoration of public confidence in the system. We have moved from the model of a short list of seven to one of three.

I recognise the work of the judicial appointments review committee led by the Chief Justice, Ms Susan Denham. This was a very important contribution. At the end of last January she spoke out on behalf of that committee. The judges want a new system of judicial appointment. She called on the Government to de-politicise Ireland’s unsatisfactory, to use her word, judicial appointments process and to introduce new laws to ensure judges are 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 the absence of such a body is causing great damage.

She went on to say political allegiance should have no bearing on appointments to judicial office. The committee's proposals for a remedy to the perception of political appointments are identical to those in my Bill. It calls for a short list of three and for the reasons for an appointment to be given clearly. Everybody in this House agrees that Ms Justice Susan Denham is one of the most respected members of the Judiciary.

I accept that there is no question about the independence of the overwhelming majority of judges. Having an allegiance to, being a member of, or adviser to, a political party, should not exclude one from holding judicial office because people should be active in political life and are entitled to pursue political interests in their early life. There needs to be a clear, published meritocracy in the appointment process. There should be no question that any member of the Judiciary is appointed because of his or her political allegiances. That is the challenge we face. The Judiciary wants this to happen, as does the public. If the Government has the will we can achieve that.

I lean on the findings of the judicial appointments review committee and the intervention by one of the most respected members of the Judiciary, the Chief Justice Ms Susan Denham. I have submitted this Bill as part of the Government review of this process. The Chief Justice's comments were almost identical to our suggestion. When I and my colleagues in Sinn Féin drafted this Bill we consulted with people who have much more wisdom in these matters to reach a model that struck the right balance. I hope the Government will support the progress of this Bill to Committee Stage where it can amend it, if it has issues with it. If the Government supports the Bill today that would send a clear signal that the Government is ready for change and will engage in that process.

12:30 pm

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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Fianna Fáil welcomes the opportunity to contribute to the debate on the mechanisms used to appoint personnel to the Judiciary. It supports the principles of this Bill which seeks to reform the way in which individuals are selected for appointments to the judiciary by the Judicial Appointments Advisory Board, JAAB. The legislative provisions including a weight on the principle of non-discrimination, promotion of diversity and safeguarding against improper motives for appointment are to be welcomed.

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 the best and brightest wielding the gavel, independent of political or personal pressure, is vital to the proper administration of justice in the State. The JAAB was established under the Courts and Court Officers Act 1995. Under its remit, the board invites candidates to submit applications for judicial vacancies when those vacancies arise, assesses the applications it receives, and then submits the names of a maximum of seven suitably qualified candidates to the Government for its consideration.

The JAAB was established in the wake of previous appointments which caused controversy and threatened the stability of the Government. The intention behind its creation was to have taken sole discretion for judicial appointments out of the hands of Government and give it to an independent body. Unfortunately, the JAAB in its current role and with its current prescribed procedures has not fulfilled the original intention of its creation. The State's judges have called for a radical overhaul of the judicial appointments process stating that a merit-based system that limits the Government's scope to reward political allies is vital to retain public confidence in the justice system. Since this Government came to office, with a promise of a so-called "democratic revolution", we have seen a litany of appointments which are overtly political in nature.

So blatant were these appointments that in a rare intervention in January 2014, the judges, through a committee chaired by Chief Justice Ms Susan Denham and including representatives of all court jurisdictions, were sharply critical of the "demonstrably deficient" system and said wide-ranging changes are needed to attract high calibre applicants to the bench. They felt the need to state that political allegiance should have no bearing on appointments to judicial office. This was a direct response to this Government's approach to filling the benches with its political supporters.

The body that represents 90% of Ireland's judges felt the need to chastise this Government by stating, "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 sentiments expressed here are a stunning rebuke to this Government's hypocrisy in the area of judicial appointments.

We need to get back to a system where appointments made are clearly without reproach. The rule of law is the bedrock of democracy in our society. It means all citizens can rely on a set of predictable, stateable rules to govern society that can be independently interpreted. This Government has continuously undermined the administration of justice in this country, by refusing to listen to whistleblowers about the maladministration of justice; the closure of Garda stations leaving rural Ireland without police protection and the undermining of the Judiciary through a series of measures to undermine its independence and ignore matters of concern raised by it.

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 active approach to interpreting the Constitution. Their decisions have direct political consequences. The establishment of the existence of unenumerated rights in the seminal 1965 Ryan case has transformed the evolution of our Constitution. 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 also means the Judiciary has wide discretion to interpret the spirit of the Constitution, not simply what is explicitly written in the document. This gives judges real political power. The establishment of rights, such as the right to privacy in the 1974 McGee case, legalised contraception in Ireland or the controversial 1992 X case that found for the right to travel, have all been deeply political decisions.

12 o’clock

It is also worth noting that the Constitutional Convention debated whether to endorse the enshrining of socioeconomic rights in the Constitution and found they should be. This would expand the powers of the Judiciary to cases beyond the 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 in regard to whom we appoint to these highly sensitive and influential positions.

The Bill put forward today would represent a first step in reforming the appointment process. Fianna Fáil's view is that we can take a constructive approach to changing the system without the need for a referendum. To that end, we have introduced legislation to tackle the long-standing problems in the judicial appointments process. Our Bill is based on the declaration of the European Network of Councils for the Judiciary on judicial recruitment and appointments. 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 a particular judicial office. The Minister may or may not accept its recommendation. Under our Bill, a new judicial appointments board would be established and the existing Judicial Appointments Advisory Board abolished. Instead of recommending seven persons for appointment to judicial office, the judicial appointments board would recommend candidates whom it would certify as the best candidates for that particular 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 in regard to the Judicial Appointments Advisory Board.

The Judiciary is a vital part of our system of government and 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. Judicial posts are deeply powerful positions with real political consequences. We must construct an appointments system that reflects this pivotal role. Fianna Fáil has put forward its proposals based on European best practice with a view to creating an open, transparent and reliable system of appointments. Our Bill will not require constitutional change and can be legislated for by the Government immediately.

As I have said before in this House, the challenge is to balance the independence of the appointments process with the need for accountability. It is a difficult balancing act. One of the largest sectors in society is the local government sector, and the most powerful people within that sector are the local authority managers, who are appointed by an independent commission. They have huge reserved executive powers, which local authority members, who are directly elected by the people, cannot challenge. That is wrong. Local authority managers are appointed by a body that is answerable to nobody. We need an appointment system for the Judiciary which ensures its members can be held politically accountable and answerable. We will not get that if we have a system which operates behind closed doors and locks out public representatives.

Public representatives, on the Government side and otherwise, must have a say in the appointment of judges. Governments are mandated by the people to govern, not to be mere bystanders in a process of formalities. This is particularly the case with regard to the administration of justice. There has been criticism of the current Judicial Appointments Advisory Board but, to its credit, only two judges have been removed, Brian Curtin and Heather Perrin - in both cases, for obvious reasons. No screening appointments process could have foreseen the activities in which those individuals would engage and which led to their removal from the bench. That must be said in the defence of the Judicial Appointments Advisory Board.

This is a welcome debate. We must have accountability of Government and independence in the appointment of the Judiciary. I do not support dismantling the current system entirely and handing the appointment of senior positions over to persons who cannot be held accountable if something goes wrong. Accountability is what being in government is all about.

12:40 pm

Photo of Alex WhiteAlex White (Dublin South, Labour)
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The Minister for Justice and Equality, Deputy Frances Fitzgerald, has asked me to convey to the House her regret at not being in attendance for this debate. She is in Luxembourg today at a meeting of justice and home affairs Ministers, a matter of considerable importance in the context of her work as Minister. The issue of reform of the judicial appointments process is one in which she has very considerable interest and is the focus of intensive work at present.

On behalf of the Minister, I thank Deputy Pádraig Mac Lochlainn for preparing and tabling the Reform of Judicial Appointments Procedures Bill 2013 and thereby providing an opportunity to debate this important issue. The introduction of the Bill comes as a significant review of the entire spectrum of issues around the topic of judicial appointments is under way in the Minister's Department, a review which has already been well signalled to the House. The legislative context for judicial appointments in Ireland is a highly complex one, and any appraisal of that system encompasses an extremely wide range of issues for consideration. For example, the role of the Government and the Judiciary itself and of others in the process, the relevant practice and eligibility criteria and international benchmarks are all worth reflecting on in making an assessment of the current arrangements and signposting changes that should be considered.

It was with this in mind that the Minister's predecessor embarked on a major review of the judicial appointments process and initiated a consultation process in December last as a first step. The Minister, Deputy Fitzgerald, is most anxious, as a key priority in her new role, to see this worthwhile process through. It is her view that it is vital, if reforms applicable to this area are to be made, that they derive from a considered consultative process, public debate and debates in this House. Pending the consideration of the conclusions of the review by the Government, I do not propose to express a view on behalf of the Minister as to the approach that should be adopted with regard to judicial appointments. It is a very important and multifaceted issue that requires detailed examination. Moreover, I am very conscious that the Judiciary and the courts, as the key organs of the justice system, are constitutionally independent in their operation. That is a very basic principle within which we must continue to work.

I will return again to this review process and to the detail of Deputy Mac Lochlainn's Bill. Before doing so, however, it is useful to summarise the key provisions of the Courts Acts that govern the appointment of judges. Under the Constitution, judges are appointed by the President on the advice of the Government. The current process for the appointment of judges is set out in the Courts and Court Officers Act 1995, sections 12 to 17, which established the Judicial Appointments Advisory Board. In particular, section 16 provides that a person who wishes to be considered for appointment to judicial office shall so inform the board in writing and shall provide the board with such information as it may require to enable it to consider the suitability of that person for judicial office, including information relating to education, professional qualifications, experience and character.

The board must recommend a minimum of seven candidates for each vacancy and submit to the Minister the name of each person who has applied to the board. Where there are fewer than seven applicants or if the board is unable to recommend seven, it must forward all names to the Minister and recommend such of those as it considers suitable for appointment. The Government, in advising the President to make an appointment, must first consider names recommended by the advisory board. The Act also requires that a notice of appointment to judicial office shall be published in Iris Oifigiúil, with a statement, where applicable, that the appointment was recommended to the Minister by the board. Certain positions are excluded from the board's remit, such as the appointment of the president of a court or the Chief Justice, or the elevation of a serving judge. Therefore, it is the Judicial Appointments Advisory Board that identifies persons and informs the Government of their suitability for appointment to judicial office. The establishment of this arrangement dates back almost 20 years, and that passage of time alone would suggest that a review of operations and the process is timely.

It is worthwhile synopsising the process today as the reality is that all the fundamental arrangements that underpin the system have been highlighted in one way or another across the contributions received as part of the public consultation process. Much of the comment is generated around the issue of the Judicial Appointments Advisory Board itself, including its composition. The board is composed of the Chief Justice, who is chairperson, the presidents of the High, Circuit and District courts, the Attorney General, a Bar Council nominee, a Law Society nominee and up to three lay members appointed by the Minister. The 1995 Act prescribed that these three persons shall be engaged in or have knowledge or experience of commerce, finance, administration or as consumers of services provided by the courts, as considered appropriate by the Minister. Appointments of the nominees of the legal professional bodies and lay persons are for a period of three years and such persons may be reappointed.

Before introducing any reforms in this area, the then Minister was anxious to encourage public debate on statutory changes that should be considered in the public interest in regard to the appointment of members of the Judiciary. In December 2013, the Minister's predecessor initiated a public consultation process. This was to involve not only members of the Judiciary and the legal profession generally but also to engage the broader public and interested stakeholders who benefit daily in innumerable ways from the protection of an independent Judiciary. Submissions were invited on the judicial appointments process including in respect of such matters as: eligibility for appointment; the need to ensure and protect the principle of judicial independence; promoting equality and diversity; and the role of the Judicial Appointments Advisory Board, its membership and its procedures.

The Department received 27 submissions earlier this year, running to more 250 pages. I take this opportunity, on behalf of the Minister, to acknowledge and thank the many contributors, including the Judiciary, the Bar Council, the Law Society, the Free Legal Advices Centres, the Irish Council for Civil Liberties, individual constitutional officeholders, many other individuals and groups and public representatives. I do not think Deputy Mac Lochlainn will mind me noting his input into that process on behalf of his party in the form of the Bill before the House which is just one of very many constructive and helpful contributions received.

A report on the outcome of consultations signalling key emerging issues and options for legislative reform is at an advanced stage of preparation in the Minister's Department. It is inevitable that this report will become the focus of a further consultative process with all relevant stakeholders. It can be anticipated that this process will take place in the second half of this year and with a resulting outline of legislative proposals towards the end of 2014. This is a challenging timeframe for progressing significant reform that is likely to encompass several fundamental aspects of the judicial appointments process.

I turn now to the Deputy's Bill, which as mentioned is one of many very useful and thought-provoking submissions received as part of the review process. Key elements of the Deputy's Bill seek to reform the judicial appointments process by setting out criteria for nomination; linking the appointment process into equality law; changing the composition and the chair of the Judicial Appointments Advisory Board; limiting to three the number of persons to be recommended by the board for a judicial vacancy in given circumstances; and including the promotion of serving judges within the remit of the board.

While there is no doubt that these themes feature quite centrally in the submissions received on the current appointment arrangements and that the Deputy's proposals give food for thought, I point out that the Bill does not address many relevant issues emerging from the consultations process. For example, the need for a comprehensive assessment of all criteria for appointment, the need for a complete reappraisal of the structure and functioning of the Judicial Appointments Advisory Board and the need to consider the eligibility of employed legal professionals, academic lawyers and others. Other questions arise, and will be responded to under the review, which the Deputy's Bill does not adequately address. The following are just a flavour of them. Should the selection process be much more multi-layered, including detailed reviews of applications, preliminary testing, panel interview, professional references and peer review? The Bill makes no such provision. Should a thorough merit-based model be developed, publicised and used by the Judicial Appointments Advisory Board? Even more fundamentally, should the advisory board be completely reconstituted as an independent statutory and expert body? Should District Court judges be eligible for appointment to the High and Supreme Court, on a similar basis as are Circuit Court judges currently? The Bill does not address that issue.

Are the existing qualifying practice requirements for barristers and solicitors adequate or should they be varied upwards or onwards? The Bill is silent on this issue. Should promotion - what we really mean is the elevation of judges - of judges from one court to another or, indeed, as Presidents of the Courts or Chief Justice come within the remit of the appointments body, which they do not currently? The Deputy's Bill in section 9 provides that so-called promotions should come under the advisory remit of the board but any such provisions, if proceeded with, would require considerable precision as to the specific arrangements.

To what extent should information about given appointments be made public? The Deputy's Bill in section 8 would require the board to make public the names being recommended for appointment and why they are being recommended while section 10 requires that the Government would publish a report within 14 days in advance of appointment as to why a person is to be appointed. The publication arrangements to do with appointments are subject to review and while the Deputy's suggestion will be looked at, it is not entirely clear to me why such information would be put into the public domain in advance of appointment.

Should the advisory board submit a minimum, maximum or fixed number of names for recommendation to Government and what should that number be and should such recommendations be ranked in order of merit? This matter comes up for consideration in almost every submission, and this is perhaps the central issue and one that needs careful weighing in the context of a range of views obtained.

In posing these questions I am not suggesting the answers to them but I can say that on all these issues the consultations process has revealed a remarkable range of views with strong support shown for often opposing takes on the best way forward on many of these emerging issues. I have no doubt too that there will be many ready-made answers from different sources to the types of questions that arise but the diversity of views coming forward, and it must be said in some cases the convergence of such views, clearly demonstrates the need for a comprehensive analysis of all such matters.

A central tenet of the review is the need to ensure and protect the principle of judicial independence as enshrined in Article 35.2 of the Constitution. Since 1922 we have had a robust and independent Judiciary appointed under the current constitutional arrangements. Ireland was ranked second in the 2014 EU justice scoreboard for perceived judicial independence.

I have mentioned that the current system is almost 20 years in existence and, in many respects, while innovative at the time, it is in some respects very much of its time. There are doubtlessly reforms and improvements that can be made to render the system more transparent and accountable while also ensuring that the independence of our Judiciary is rigorously protected and the Judiciary continues to be respected by the Irish people and internationally.

While the decision as to who should be nominated to the President for appointment to judicial office rests with the Government, it has been the practice of this Government to nominate 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 elevated to a higher court - a matter currently excluded from the remit of the Judicial Appointments Advisory Board, as I have explained.

It is important to state that Government decisions on judicial appointments take only competence and merit into consideration. The system we have is a considerable defence against any notion of political control or patronage. However, if that can be strengthened further through the process of review, then that should be done.

In respect to certain specific provisions in the Deputy's Bill, key provisions include the appointment of the chair of the Irish Human Rights Commission to be the chairperson of the Judicial Appointments Advisory Board, and a rebalancing of the advisory board to allow for more lay members than Judiciary members. While such an arrangement may well be for consideration in the context of the review, the Minister is not prepared to accept that this will be an inevitable conclusion or outcome of the review and wishes all of the complex arguments around this point to be very carefully analysed before any aspect of the composition of the advisory board is determined.

The Bill appears to make no new provision for the filling of a single judicial vacancy which may well be a drafting anomaly in it. Section 8 inserts a new subsection (5) in section 16 of the Courts and Court Officers Act 1995. This would have the effect of allowing the advisory board to recommend three names for appointment where there is more than one vacancy - for example, six names per two vacancies - but would leave the existing provision whereby at least seven names would be furnished in respect of a single vacancy and that appears to be inconsistent with the aims of the Bill. I would be interested to hear the Deputy's thinking on this.

Other provisions in Deputy Mac Lochlainn's Bill raise questions, appear unclear or require significant analysis of implications and I can assure the Deputy and the House that these will be addressed in the context of the review of judicial appointments. To take one example, section 4 seeks to go beyond the existing nine equality grounds in the equality legislation with inherent duplication and it would appear inadvisable to do so either in equality legislation or in other legislation without careful thought.

The Government has decided to oppose the Deputy's Bill as it is currently conducting a wide-ranging review of all matters concerned with judicial appointments that will allow the necessary full assessment of all relevant matters in respect of the issue and the Government will bring forward legislation to reflect the outcome of the consultations process as a priority.

Many of the issues that arise for consideration in that context are not addressed in the Bill, as I have set out. In addition, as I have mentioned, some of the provisions are somewhat unclear in terms of their effect and open to question as to implementation. That said, I think it is important to say that the new Minister will have the opportunity to fully consider the Deputy's Bill as part of the review process along with a significant volume of other contributions and I would take the opportunity today of thanking the Deputy again for his very constructive input to that process and to the formulation of policy in this area. I very much look forward to today's debate and the deliberations and insights of Deputies on this issue.

1:00 pm

Photo of Tommy BroughanTommy Broughan (Dublin North East, Independent)
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I am pleased to get an opportunity to speak on the Reform of Judicial Appointments Procedures Bill 2013 today. I congratulate Deputy Mac Lochlainn for the great work he has done in this area and for bringing these very important proposals before us to finally democratise our Judiciary because it is fair to say that the public is deeply and profoundly unhappy with the political nature of the appointment of judges, the perceived selection of judges from a tiny elite of Irish society and what appears when one looks at court records to be one law for the wealthy and another for the poor. It appears that some people who, having committed what most constituents would consider to be very major crimes, walk away virtually scot-free while others receiving very lengthy sentences for stealing a bicycle or a coat, so there is grave disquiet.

In the first instance, I acknowledge the work of the former Minister for Justice and Equality, Deputy Alan Shatter. I thought he was right to resign but his efforts to reform the legal system and the establishment of the consultation process were very valuable initiatives. Unfortunately, the pace of reform has been very slow. We have been waiting at length for the Legal Services Regulation Bill 2013. Again, there is grave public disquiet in that area.

There are different systems of appointing judges throughout the democratic world. Like Ireland, many countries use political institutions. Appointments are made through the judiciary itself in some countries. The judicial council system is also used and Deputy Mac Lochlainn has referred to the Judicial Appointments Commission in England and Wales as template we could emulate. Under this system, there are up to seven lay people on the commission if one includes the lay magistrate and five judges. There is a variety of models. What is most interesting for many people is the electoral system used in the US. It is possible to run for election to be a judge even up to the Supreme Court. This reform was introduced in the 19th century to try to get judges who were more representative of society.

Over the years, I have been concerned about the lack of transparency in the area of judicial appointments. While the enactment of the Courts and Court Officers Act 1995 did address some concerns about the political nature of many judicial appointments, most people felt that it did not create the transparency we need. As ordinary citizens, we are familiar with looking at the court records and the performance of judges. The Acting Chairman and I closely observed the magisterial performance of Mr. Justice Nicholas Kearns in respect of the delivery of law and justice respect of the Priory Hall debacle. On the other side of the scale, I have been exasperated in recent years when some District Court judges around the country have not ensured that the will of this House is carried out in respect of the Road Traffic Acts of 2010 and 2011. Instead of ensuring that errant drivers get their penalty points, they have allowed people to escape or gone back to the old common law function of the poor box. This is unacceptable because it is not the will of the people as we have expressed it here in respect of tightening up traffic regulations and law.

In many respects, people are deeply unhappy that we still have such an outrageous system of political appointment of judges in this country and it is something we need to get away from. As Deputy Mac Lochlainn has said, senior members of the Judiciary feel that we need an independent and transparent system where we get the best people and the best legal minds for the job. Under Article 35.1 of the Constitution, judges of the Supreme Court, the High Court and all other courts established in pursuance of Article 34 are appointed by President and the role of the President will remain regardless of whatever reforms are introduced in respect of judicial appointments. The manner in which a new commission has been set out in this Bill would be a much representative and democratic system, which is what the public wants.

One issue that has been raised over the years in respect of the appointment of judges is the necessity to consider the appointment of leading members of the academic legal community. There are some outstanding legal minds throughout our seven universities and senior colleges and it would be right that those distinguished lawyers and teachers would have the opportunity to serve on the bench. I know the Minister agrees with me in respect of that.

I made a submission to the consultation process. One of the issues I considered, and one area where I would have gone further than Deputy Mac Lochlainn, concerns lay members of a judicial appointments commission. Perhaps there could be scope for electing these lay members as is the case in the UK. If there were a half a dozen members, they could be elected with the rest of us at general, local or European election times. People have a great interest in the law and following legal matters. Perhaps senior solicitors or barristers who do not want to be judges would have an input on our behalf. I ask the Minister to examine if there is some way direct democratic accountability could be brought into the process.

In my submission to the consultation process, I echoed the legal formulations of Deputy Mac Lochlainn in respect of non-discrimination in section 4, diversity in the judiciary in section 5 and the rest of the Bill. It is critical that all sections of society are represented. Gender equality in the Judiciary, particularly in the upper echelons, remains a matter of concern. I note that the two most recent appointments to the Supreme Court were female but perhaps we should have a quota system. The Labour Party has a great tradition in that regard going back decades. It was the general principle to try bring forward 50% men and 50% women in these areas. Certainly the aim should be to ensure that neither gender would have less than 40%.

Other issues are the growing diversity of the population in terms of ethnic origin, particularly the arrival of the new Irish in the past decade, and people from those communities who might be training in law. It is early days yet but there is a requirement for more accountability to reflect the growing diversity of our society either through Deputy Mac Lochlainn's Bill or whatever template is hopefully based on it that the Government might employ.

I strongly support major reform in the area of judicial appointments. It will be good to receive the report of the consultation process. Perhaps the Minister of State might tell us how soon we will know because it would be interesting to read the contributions of the different parties and Members of this House and other people, including those in the legal profession.

This is a very important Bill and I commend Deputy Mac Lochlainn. One of the fundamental principles of a free society is an independent Judiciary which is independently and transparently appointed. The Minister of State quoted a review which puts us second on the planet in terms of judicial independence, but the ordinary citizen feels the perceived political nature of appointments is an outrage and should end and we should have independence in this area. If it is possible to give the people a say, at least for the commission or council, we should consider it.

1:10 pm

Photo of Shane RossShane Ross (Dublin South, Independent)
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I very much welcome the Bill. I am disappointed with the Government's response because it is quite obviously a very constructive effort to reform a system which is generally acknowledged to be in dire need of reform. My only criticism of the Bill is that it is not radical enough. It is a very good effort to highlight the real problems we have in the judicial system, particularly in the appointment of judges. I was struck by several aspects of the Minister of State's reply. It appears nothing will be done very soon. Anybody who acknowledges the problem and then reads the Minister of State's speech will be staggered when they see the extraordinary process which apparently must be gone through for a reform which everybody knows is vital. The Minister of State spoke about the need for a review, then a consultation process, then a further consultation process, a considered consultative process and then we will have some sort of legislation which needs detailed examination.

I do not know what Governments have been doing on this issue for the past 50 or 60 years but there has been something wrong with the appointment of judges ever since the foundation of the State because there is a certain unanimity, certainly on these benches and apparently on the Government side. I was very struck by one sentence the Minister of State said and I presume it is a reflection of the views of the Minister for Justice and Equality. The Minister of State said, "It is important to state that Government decisions on judicial appointments take only competence and merit into consideration." This is nonsense. Nobody in the land believes the only considerations in the appointment of judges are merit and competence. The most important considerations should be merit and competence, but the defining consideration is far too often the political colour of the applicant. The cases of this are so numerous it is indisputable.

I suspect it is against the rules of the House to name judges and state they are members of political parties, but I could document them one by one and make an overwhelming case, and will do so if I am allowed, for the fact it is of immense benefit, regardless of which party one is in, to be a member of or have served well the party in power. I will not name the person, but a Fine Gael trustee who ran as a colleague with the Taoiseach in his constituency but did not get elected and has a Fine Gael pedigree second to none was appointed to the District Court when the Government came to power. The same person had made many applications under the previous Government but did not get a job. Suddenly whoever makes the appointments saw the light and he was appointed. There are so many cases which are similar to this that the Minister of State's statement that all appointments are made on merit really does not hold any water.

The fact of the matter is the Government has been as bad as the previous Government in using this political patronage at its disposal in appointing to the bench those who have served the parties well over the years. This is the way we do it. It means the appointment of judges and the judicial process is a political cesspool. It is well disguised and well camouflaged by what has been pointed out so well by previous speakers, namely, the Judicial Appointments Advisory Board. It is a joke. It is well dressed up and has people with big titles, such as the President of the High Court, Supreme Court judges and the Attorney General, but at the end of the day it has absolutely no power. It does not even take its own role particularly seriously. The Minister of State will know that since its foundation in 1997, although it has the power to hold interviews, it has not held a single one. It has the power to recommend seven people to the Government, but if the Government does not like the list, it does not have to take anybody from it. The fig leaf is there and there is apparently a process which means there is no direct contact between the Minister for Justice and Equality of the day, who is the principal player although the Government ultimately makes the recommendation, and the applicants. We have this layer which itself is full of political appointees, including the various judges.

We need to take two elements out of judicial appointments. One is the Government in power, so judicial appointment is not a power of patronage, and the other is the legal profession itself. Far too often these appointments are made by insiders and politicians in cabals together who come up with solutions which inevitably mean either insiders in the Law Library or Leinster House are appointed to these positions. This is not acceptable and it is absurd to pretend this is not the way it is done.

I was going to state the wrong Minister of State is in the House today, but it is appropriate he is here because he is a barrister and I respect what he states and what he knows about this. He knows from the Law Library that barristers tell each other whose turn it is this time and who has no chance because of not being in the right party. This is what they say inside and outside the Law Library.

Photo of Alex WhiteAlex White (Dublin South, Labour)
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I have never heard such a discussion.

Photo of Shane RossShane Ross (Dublin South, Independent)
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I do not know where the Minister of State has been because I have heard barristers say very little else and they say it in here also. They know perfectly well how the world works. There is no point in pretending innocently this is not how things happen. It is how things happen.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I think he is a northsider.

Photo of Shane RossShane Ross (Dublin South, Independent)
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I am not particularly fussy about how it happens but the principles are very important. I would like to see the initial selection process being made by outsiders but allowing, as Deputies Broughan and Mac Lochlainn stated, people with legal expertise to be involved. It would be appropriate, of course, that wider society gets involved. I do not know whether the groups identified by previous speakers are necessarily the right ones and I do not particularly mind, but at least a broader section of society should get involved in the initial selection process. When one goes beyond this, of course, as Deputy Broughan stated, it would be more than appropriate if people with legal expertise were involved, but this does not mean it must be people who are practising lawyers. It does not mean it must be politicians who are practising lawyers, or politicians at all. Why would one not include in the process people from academic institutions with legal expertise?

Why would one not include people - who know who are the experts on law, who would be suitable judges and would be slotted appropriately into such places - at least to make the initial recommendations? One would have a politician-free zone and a judge-free zone in this regard.

The Minister of State's remarks are contradicted by a point to which previous speakers have referred, which is the judges themselves are deeply embarrassed by the process at present. The judges themselves issued a report earlier this year stating they did not wish to see a process that allows such blatant naked political interference in the selection of judges.

1:20 pm

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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Hear, hear.

Photo of Shane RossShane Ross (Dublin South, Independent)
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If a politician is to state this is not the way it works, at a time when the judges themselves are blushing at the process, it simply beggars belief.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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First, I welcome the Reform of Judicial Appointments Procedures Bill 2013 and commend my colleague, Deputy Mac Lochlainn, on bringing forward this new legislation because it is important, particularly in the current climate. All Members were elected in 2011, when they made commitments on change and reform of the political system and this is an example from Deputy Mac Lochlainn today of bringing forward legislation to introduce new ideas and reforms into the judicial system and into the wider justice system. It is important to make that point because speaking as a member of the Joint Committee on Justice, Defence and Equality, and regardless of whether Members like it, the justice system has taken a major hit over the past six or 12 months with regard to a major lack of trust and lack of confidence on the part of the public. All Members have been inundated with cases of allegations of miscarriages of justice and have witnessed the shenanigans regarding the former Minister for Justice and Equality, the former Garda Commissioner and the Secretary General in the Department of Justice and Equality. While these issues are being dealt with through a commission of inquiry and through the Guerin report, the theme I hear constantly from the public is there must be reform and change. Moreover, in the context of this legislation in particular, trust must be restored in the judicial system and unless Members do that, they will be doing a great disservice to the public. As the Title of this Bill suggests, the subject of discussion is reform, as well as change, a meritocracy and accountability. It is important to make this point and I intend to discuss individual sections of the Bill in a couple of minutes.

However, when discussing this subject, there is another side of the justice system to which everyone appears to be turning a blind eye because Members are so busy beating up one another over procedures, what went on, what was said and for how long the letter was held up in the Department of Justice and Equality. Meanwhile, young men are being shot in the streets and bodies are being dumped on islands. There were two such cases concerning people from my constituency recently and nobody batted an eyelid. More than 1,500 people attended a funeral in Coolock this week and it did not get a mention anywhere. People are being shot in gangland killings and Members should be focusing on these issues as well. Although 26% of violent crime in this State arises from the gangland sector of criminality, Members are not also discussing these issues but are being distracted. My point is that while Members seek reform of the judicial system, they should never take their eyes from the slaughter going on the streets. Kids are dying in the streets, young people are dying in gang-related deaths and their families are mourning because of the scourge of drugs within Irish society. It is important to make these points within the context of this broader debate. Again, it goes back to the issue of public trust. The public want to trust the justice system and, as I mentioned earlier, all Members have been inundated with complaints and allegations of miscarriages of justice.

To return to the Bill itself, it amends the procedures used by the Judicial Appointments Advisory Board to nominate individuals for positions within the Judiciary to end the practice of political appointments to the Bench. That is the purpose of the legislation and I strongly endorse and agree with my colleague, Deputy Ross, in this regard. He has been talking about this issue for many years and has presented legislation on it in the House. He has the full support of the Independent group with regard to this reform because it is important. Confidence in the justice system is contingent on a Judiciary that is free from political control or political or other bias. It is essential that there is an independent and impartial Judiciary that is representative of the community it serves. This is also an important point. As far as I am concerned, judicial appointments should be made on the basis of merit from a list of qualified candidates who are representative of the community. Let us bring in equality, a meritocracy and good judgment on behalf of the citizens of this State. When one considers the legislation more closely, it proposes that any potential candidates should satisfy the Judicial Appointments Advisory Board that they have relevant legal experience. They of course must have the qualifications to enable them to make judicial decisions with integrity, fairness and impartiality. Members should focus on those three words, namely, "integrity", "fairness" and "impartiality" and how, sadly, they have been missing in recent months in this House in particular with regard to many issues.

If one digs further into the Bill, section 4 sets out that in the appointment of judicial officeholders, there should be no discrimination on any of the prohibited grounds. Section 5 is part of a move to work towards a policy of affirmative action to increase judicial diversity. I consider sections 4 and 5 to be excellent provisions. Section 6 deals with an extremely important issue and aims to ensure that the practice of hiring political appointees for the Bench is ended. This is a point Deputy Ross made strongly in his speech earlier. Members must root out the insiders. There are many people of high quality with legal expertise in this country, many of whom sadly are out of work at present. My point is that many young people are coming through the system who in the future would make excellent judges but this should be based on their ability, not on being a political hack, on hanging out with a Minister or dropping leaflets for a Government backbencher. Members are aware this is going on and Deputy Ross is 100% correct this regard. I have witnessed this myself over the 12 years in which I have been a Member of this House and, consequently, it is important to make this point.

Section 8 amends the number of candidates on the list that the board may provide. At present, the board must nominate a list of up to seven candidates, from which the Government is not obliged to choose, and this will be reduced to three candidates. Section 9 will enable the board to provide advice on the promotion of members of the Judiciary and section 10 obliges the Government to make public the reasons for appointing an individual to a position within the Judiciary. Again, I consider sections 8 to 10, inclusive, to be strong and decisive provisions in this legislation. However, the entire theme and ethos of the Bill is about reform of the system.

In conclusion, I welcome warmly the legislation and again commend Deputy Mac Lochlainn on his magnificent work on this legislation. I also commend my colleague, Deputy Ross, on his work on this issue in recent years. This legislation is about reform and change and hopefully, it will be about bringing back trust into the justice system in order that the public can trust the entire process in this State.

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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If he wishes, the Minister of State now is entitled to make a five-minute contribution before the proposer responds.

Photo of Alex WhiteAlex White (Dublin South, Labour)
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I thank all Deputies for their contributions to the Second Stage debate. I especially wish to acknowledge the contribution of Deputy Mac Lochlainn and have listened very carefully to all the remarks and insights from Deputies in the course of the debate. It has been a worthwhile and constructive engagement and many points that have been made today are extremely valuable, While they are points that have been raised previously in the House in debates on this important question, this is not to suggest they do not remain important and they will be considered carefully. I have taken careful note of what has been said.

The matter we have debated today is a complex one - it touches off concerns about equality, diversity, eligibility, judicial independence, resources issues, qualification criteria and many other issues in an area of great importance to the administration of justice in the State. I have explained to the House that the Government is tackling the issues covered by Deputy Mac Lochlainn's Bill in a comprehensive and consultative manner. The precise extent of any measures that are needed to deal with the issues we have discussed will be shaped by the outcomes of the consultations process which is at the heart of the current review.

Deputy Ross expressed concerns about delay or the length of time of the process. He caricatured the consultation process in a sense that it was something so rooted in bureaucracy and delay, as he sees it, that nothing would ever happen. I assure the Deputy and the House that the Minister has every intention of addressing this question and she is currently addressing it through the process I have outlined. The Minister intends to address the issues raised and the issues of which she is aware. As I said in my contribution, I anticipate that the process will continue through the summer and that a resulting outline of legislative proposals should be available towards the end of this year, it is hoped. We are heading towards that prospect of bringing forward an outline of legislative proposals towards the end of 2014. This is a real commitment which the Minister has given in the context of the consultation process and it is not a case of it being said for the purposes of ending the debate or fobbing people off; it is a statement of a clear intention of the Minister and which I have repeated today on her behalf. The Minister expects to be in a position quite soon to bring forward a full assessment of all the relevant elements of the matter, and she intends to develop these further in the manner I have described.

In so far as the Deputy's Bill is concerned, I have opposed the Bill on the specific grounds that its provisions do not provide an adequate framework to address all the issues that I believe require to be considered and to some degree it also lacks key elements that almost inevitably will feature in the comprehensive reform planned in this area. The best and indeed, the only way, to guard against any of the concerns of Deputies or members of the public about the appointments process to the Bench, is that the system of appointment is clear, transparent and is properly balanced. Deputy Mac Lochlainn made the point about a person applying for judicial office who has, in the past, had an association with a political party. This fact cannot of itself, cause somebody to be excluded from the process, just by reason of the fact that he or she has had a previous political association. The challenge, however, is to ensure that the system of appointment of that person is sufficiently robust and transparent to reassure those who might have a suspicion, even a remote suspicion, that a political background may have entered into the equation as a basis for the appointment of that person. I agree with that motivation of the Deputy, that the system should be sufficiently robust and sufficiently clear and transparent to guard against any such risks that might exist, now or in the future. That is what we are all trying to achieve.

The extent to which it has been suggested by some speakers that people are appointed wholesale on the basis of a political background rather than on the basis of merit and competence, I reject and I do not believe it is so. To the extent that we need to be absolutely clear that I am correct in this view and that this or future Governments are also correct to hold such a view, the system of appointment deserves and merits a review. It is being currently reviewed, with a view to the bringing forward of changes as the Minister and the Government may deem appropriate and ultimately that the Oireachtas will be asked to consider and about which the Oireachtas will have the final say in any change to the legislation in this area.

1:30 pm

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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I call on the proposer of the Bill, Deputy Pádraig Mac Lochlainn.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I am disappointed that the Government will vote against this Bill but we have had a constructive debate and it has been a helpful opportunity to examine these issues. I reiterate that the intervention by the Chief Justice, Susan Denham and her committee was very timely. It sent a clear message that the Judiciary wants to see a change to the appointments procedure. Whether we like it or not, there is a long-held perception that the men and women of the Judiciary are often appointed on their political allegiances. The first question that many people - in particular those who practise law - ask about a recent judicial appointment is to find out who has been appointed and what are his or her political affiliations. This has been the case and is well known in this House. We need to remove that perception of any political interference in the process.

Another important point to consider is the importance of the Supreme Court decisions. It is the highest court in the land and its responsibility is to interpret the Constitution on behalf of the people. Its members must often make difficult decisions when interpreting the Constitution. We need to ensure that the Supreme Court is representative of all the Irish people, of all the ideologies in Irish society, including conservative, liberal and reforming ideologies. It is not satisfactory to have an entire Supreme Court based on a conservative tradition, as is the case in some countries. In my view, such a Supreme Court will interpret the Constitution in a conservative fashion. That is the reason these matters are so important; it is a case of achieving a balance in a Judiciary that is representative of all the people in order to achieve balanced, fair decisions.

I do not wish to impugn the character of our Judiciary. I accept that we have, in the main, an independent Judiciary which has performed a very proud service to this State. However, I am reassured and supported in my view by the intervention of the Chief Justice, Ms Susan Denham, which shows that the Judiciary believes the process needs to be changed. I believe the Minister of State, like me, as well as Members of this House, wish to achieve that change. I have to accept that the Minister of State does not intend to support the Bill and I accept that the Bill does not provide the full panacea but is instead my humble contribution and I agree that there are many other issues which I have not raised in this Bill. I accept the premise of the arguments made by the Minister of State about the wider range of issues that need to be addressed. I ask that the review process should not be prolonged unnecessarily and that it should be time-limited - I am sure it is - and that the decisions be made quickly. It is in everyone's interest to have a judicial appointments process that is beyond challenge or any suggestion of political interference, even though this may not be the only challenge. We also need to progress the Bill dealing with the judicial council as soon as possible. I suggest the incorporation in that Bill of a model based on the sentencing council in England and Wales which gives clear sentencing guidelines to the Judiciary.

We want to achieve an accountable and transparent judicial appointments process with no question about the reasons for the appointment of any individual to the Judiciary - which is a great honour for the individual and his or her family. We need a judicial council to hold the Judiciary to account and puts in place a clear code of ethics and standards. I know the Judiciary would welcome such a regulation. We ask for the establishment of sentencing guidelines to achieve accountability and consistency in judicial decisions. Some decisions have been controversial, in particular those related to sexual offenders being released by the payment of a fine. Such a decision is not in the public interest.

1 o’clock

In other cases, individuals have received very long sentences for tax evasion. While tax evasion is a serious crime for which an appropriate sentence is required, one must compare the sentences handed down in such cases to those handed down in cases involving sexual attacks, which members of the public regard as much more serious offences. The public must be involved in the process, although not by engaging in some kind of town hall raid, as depicted in "The Simpsons" with crowds of people bearing torches descending on a suspect's home. We need to have a mature debate about what types of sentences are appropriate for particular categories of offence. Consistency is required throughout the judicial system if full public confidence is to be retained.

I am pleased to have had this opportunity to propose this Bill and I accept that the Government wishes to address this issue in wider legislation. It should introduce a Bill within the current term to address the two issues I have raised, namely, judicial appointments and a judicial council.

Question put.

1:40 pm

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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In accordance with Standing Order No. 117A(4), the division is postponed until immediately after the Order of Business on Tuesday, 10 June 2014.

The Dáil adjourned at 1 p.m. until 2 p.m. on Tuesday, 10 June 2014.