Ivana Bacik (Independent) | Oireachtas source

We need sensible, practical and robust reforms. I should declare an interest as a qualified barrister who was in practice for many years, no longer in practice, but as a legal academic also. There are very positive reforms in this that I, among others, have sought for many years. In 2003 I and colleagues in Trinity published a report entitled Gender Injustice which focused on the need to ensure greater diversity in the Judiciary and the legal profession to ensure positive measures to promote women to senior ranks in these areas. I welcome the provisions in the Bill referring to diversity and gender. We will table amendments on Committee Stage to strengthen those and to require that where, for example, three recommendations are made by the commission there would be at least one of each gender. That is an important, sensible and constructive way to strengthen the diversity and equality measures in the Bill in keeping with the measures we had for political selection in the Electoral (Amendment) (Political Funding) Act 2012. I also welcome the idea of a transparent process for appointment. We sought that too. I welcome the fact that the new measures will require a reduced number of recommended candidates, ranking of candidates and will provide for the first time for adequate administrative and logistical support to the body empowered to recommend to Government.

I also acknowledge the reform in favour of legal academics but then I would say that. It is positive. I also welcome the ban on canvassing. That is important. That was sought in 2014 by the Irish Council for Civil Liberties, ICCL, which called for a radical overhaul of the system of judicial appointments, for greater separation of political system and judicial appointments and recommended the removal of the Attorney General, a political appointee, from the appointments process. That is one respect in which the Bill falls down. It includes the Attorney General in the body, which is unfortunate given that the stated objective of those promoting the Bill is to depoliticise the judicial appointments process. We will put forward suggested reforms in our amendments.

In 2015 as a member of the Oireachtas Joint Committee on Justice and Equality I instigated a hearing day on reform of judicial appointments. We heard from academics such as my colleague in Trinity, David Kenny, and from Jennifer Carroll MacNeill, Laura Cahillane has also been very strong on the issue of judicial appointment reforms and was part of a conference in Dublin City University, DCU, at which I spoke in 2014 on reform of the appointment process. There has been a long process leading to this. It is not necessarily the right Bill or the right way to do it but there are important and positive measures in it. Those of us who are in favour of reform should acknowledge that. Many of the reforms that the ICCL sought in 2014 are in here.

The issue of the internal contradiction and the composition of the commission is still very problematic. Section 10 will be a focus for many of us in putting forward amendments. Certainly it will be for the Labour Party group. We want to ensure in particular that we do not have that contradiction and to remove the Attorney General. In the Dáil the Labour Party put forward an amendment based on a Bill introduced by Deputy O'Callaghan which proposed a sensible composition reform for the body. There are also issues around the Judicial Appointments Advisory Board, JAAB.When we heard from David Kenny, Jennifer Carroll MacNeill and others, they spoke about the need to strengthen the JAAB. There were a number of changes that could have been made to the JAAB process as established in 1995 that would have addressed many of the issues we have now, such as to require JAAB to reduce the number of persons it recommended to Government and to rank those persons. The JAAB has also had powers for a long time which it did not exercise largely due to lack of resources, such as powers to conduct interviews. There were other measures that could have been implemented even within the 1995 system. It is unfortunate we did not move more swiftly on them. An argument has been made by David Kenny and others that if one politicises the system too extensively - I think Senator McDowell makes this point very well - it is not necessarily a good thing either. There has to be a recognition of the politics with a small "p" in judicial appointments, particularly to the superior court positions that we have referred to. Kenny has argued that the way forward lies in appropriately engaging with rather than concealing the politics at play in senior judicial appointments. The Minister referred to the judges' submission in 2014. I did not agree with it because it appeared to me to suggest judges would appoint their own and that judges would be in charge of the appointments. That would be much worse than politicians having a role in appointments because it lets in the danger of what we call affinity bias where one appoints people in one's own image. The debate about merit is important because one person's merit is another's affinity bias. We have to be careful when advocating for merit-based appointments that we do not use the concept of merit to disguise what is or can be an old boys' appointment system. There are all sorts of dangers and we have to look for balance in an appointments system.

It should also be said that the academics I have mentioned and others such as Ruadhán Mac Cormaic in his excellent text on the Supreme Court have pointed out that whatever the flaws in our judicial appointments model and whatever the need for reform, the Judiciary has exercised its function to a very high degree of impartiality and independence. It has been acknowledged by other speakers here.

I do not think anyone has mentioned the recent decision in the High Court by Ms Justice Donnelly to refer the Polish extradition case because of concerns about judicial appointment processes in Poland and changes being made to it. That case was heard last week. It shows the importance of an independent Judiciary and the huge significance that principle has as a cornerstone of our democratic system and the separation of powers. We will table an amendment on it on Committee Stage in the Seanad. We will also be tabling a number of other amendments.

We are concerned about some of the other aspects of the Bill. Deputy Howlin referred to them in the Dáil. We are concerned there may be too much of an administrative overkill in Part 8 of the Bill and scope for judicial review applications by disappointed applicants. That is something that needs to be reviewed.

The case for diversity needs to be made to ensure we have a Judiciary that is reflective, as far as possible, of the population. We need to look at taking out the party politics from selection. We have to be careful about deprofessionalising the appointment process to a degree where we lose some of the strengths in our system. We need to be balanced in approaching this and to acknowledge the strengths in the system and the fact we have been served very well to date by our Judiciary, for the most part.

Senator McDowell referred to Senator Norris's case, which we were all remembering and reflecting on yesterday in the historic debate in this House as we listened to an important apology to those who had been convicted for offences that have not been criminal offences since 1993. We might all be mindful of the majority judgment by Brian Walsh, which was described by Ruadhán Mac Cormaic as the worst judgment-----