Victor Boyhan (Independent) | Oireachtas source

I welcome the Minister for Justice and Equality, Deputy Charles Flanagan. I am conscious that when the Taoiseach was in this House he renewed a request for us to scrutinise legislation effectively and in detail. That was important for all of us and we should do that. I like the debate, which has been positive. On the whole, I want to welcome this legislation. The Judiciary has served this country with distinction over many years. We can all say that and that theme has been echoed here today. I am glad we are acknowledging that because it is important.

The independence of the Judiciary is a central tenet of our democracy and is enshrined in our Constitution. Article 35.2 of the Constitution states that "all judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law". My colleague, Senator McDowell, covered that in great detail and I am not going to elaborate on those points. Judicial independence does not just exist for the benefit of the judges. It exists also for the people and ensures public confidence in the administration of justice. The upholding of the tripartite constitutional separation of powers of the Legislature, the Executive and the Judiciary is fundamental for the functioning of our justice system. That is an important point to take as we debate this legislation. Article 35 of the Constitution states that "the judges of the Supreme Court, the Court of Appeal, the High Court and all other Courts established in pursuance of Article 34 hereof shall be appointed by the President". The Constitution further states that the President appoints judges on the advice of the Government and the Government alone.

I welcome today's debate on the judicial appointments commission. Judicial appointments should only be based on merit and capability and should be open, fair and transparent. This Bill attempts to do that. The entire appointment and selection process should be open to public scrutiny since the public has a right to know how its judges are selected. The Judicial Appointments Commission Bill must ensure that there is a record of the verifiable, independent, open, fair and transparent process, which any unsuccessful applicant is entitled to access if he or she believes there has been unfair treatment in the appointment process.

I do not believe this is dealt with adequately in the legislation. I put the Minister on notice that I intend tabling amendments on this matter. I took the time to look at the Commonwealth tenure of judges legislation. Just by chance I was on a flight to London the other morning with the dean of the faculty of law at UCD. She did not know me and I did not know her but we got to talking, as people do, about the nature of our work and she sent me some interesting documents on best practice across the Commonwealth. It is an important document and I suggest people read it because it echoes some of the points I am making. The entire appointments process must be open and I made the point that I will be bringing an amendment on that particular issue.

I support the principle of diversity. Other people have spoken about this. The Council of Europe recommends that there should be no discrimination against judges, or candidates for judicial office, on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, disability, birth, sexual orientation or other status. I have no problem with the lay participation as envisaged in this legislation. I would like a balance, not a majority, of both sides, lay and judicial.

On the issue of the lay chair of the judicial appointments commission, I have a different story. I do not believe it is the right way to go. I was interested in the Leader's comments where he said he would possibly prefer that the Attorney General or the Chief Justice look at that. I intend to table an amendment on that also. I firmly believe the chair of the judicial appointments commission should be the Chief Justice of Ireland. We have had a good debate but I hope the Minister will be open to some reasonable amendments on Committee Stage. I would like to work collaboratively and I appeal to Senators to work collaboratively to bring about. We do not necessarily need individual groups saying different things, although people are entitled to do that. Let us on this occasion, however, try to work collaboratively to bring change. Many people have spoken and there is an expectation in the media that we in Seanad Éireann might shake this legislation. We have that opportunity in the next two weeks. Let us use it, collaborate and bring constructive measures to this debate.