Michael McDowell (Independent) | Oireachtas source

I second the motion. I welcome the Minister of State, Deputy Stanton, to the House. I concur fully with and support completely what has been said by Senator Boyhan.

By way of background, I was appointed Attorney General in 1999. I succeeded David Byrne as a member of a Committee on Judicial Conduct and Ethics which had been established, as Senator Boyhan said, in the wake of the Sheedy affair. I became Minister for Justice, Equality and Law Reform in 2002 and my Department set about the preparation of legislation to give effect to the judicial council idea as recommended in the report. It was my intention at the time that we should do so in consultation with the Judiciary and I set about, through the usual channel, seeking the views of the Judiciary rather than seeking to impose on them without consultation the model that had been recommended in the report.It is a matter of record, one about which I was reminded recently while reading about it in a newspaper, that the process never came to fruition while I was the Minister for Justice, Equality and Law Reform. The impatience on the part of the current Chief Justice was to be found at that time in the Department. As far as it was concerned, the reason the matter was not being dealt with as a matter of urgency lay in the Four Courts, although precisely where the blame lay in the Four Courts is a different matter.

Whatever the history of the issue, the heads or scheme of a Bill were published in 2010, as Senator Boyhan stated. Six years later, the need for a judicial council is as obvious now as it was then. Such an institution is badly needed to protect the Judiciary and guarantee its independence. In these circumstances, we should have an assurance from the Government that the scheme is about to be published in Bill form.

There has been controversy in recent times about whether there is an arrangement in place, at Cabinet level at least, between some members of the Government and the Independent Minister for Transport, Tourism and Sport, Deputy Shane Ross, that no new appointments will be made to the Bench until the Bill the Minister favours is passed through the Houses of the Oireachtas and made into law. There is no evidence that the exact scheme, as adumbrated in the programme for Government, has the support of a majority in either the other House or this House. Deputy Jim O'Callaghan has tendered a Bill which is a better model and one that is more likely to produce better recommendees for appointment to the Bench. I do not know what other Senators' views are on the matter. Whether Deputy O'Callaghan's Bill is progressed, whether the Government introduces a Bill or whether some kind of consultative process commences between the Government and the Deputy that gives rise to the early progressing of his draft legislation is beside the point. The real point is that there cannot and should not be a circumstance where members of the public are told by one Minister's political advisers, through the media, that there is a moratorium on the appointment of judges. I note the chairman of the Bar Council has pointed out that this is improper. It is wrong to hold up the process of appointing badly needed judges pending the delivery of legislation, which has not even be drafted, let alone put before a committee for pre-legislative scrutiny. The Judiciary should not be used in this manner and the issue of appointments to the Judiciary should not be hijacked to make a political point.

If the Government has so little confidence in its members collectively to select good judges, it says more about it than anybody else. The Government is not even bound to accept recommendations made by the Judicial Appointments Advisory Board. If it has so little confidence in its ability to select good members from either side of the legal profession to become judges - people of quality, integrity and independence - it speaks very badly of the board.

I fully accept that the Minister for Transport, Tourism and Sport and the Independent Alliance have an appetite for reform of the Judicial Appointments Advisory Board. While the two Houses are putting in place reforming legislation, there is no reason the board cannot be trusted to carry out its constitutional duty to select good people to be appointed to the Bench. It is a scandal that one Minister could give the Government the impression that he has effectively put his foot on the brake to stop such appointments because he does not trust himself and his colleagues to make proper appointments.