Michael McDowell (Independent) | Oireachtas source

Is it to be the case that someone is to be cross-examined or required to provide information on his or her socioeconomic status and asked if he or she owes money to a bank or if he or she is wealthy because his or her parents or grandparents were wealthy landowners or because his or her mother or father made it big in this boom or that? Is this a matter which is seriously to be taken into account in determining whether somebody should not be a judge? This sounds great and it seems that Senator Ruane is asking us to do something which is very inclusive and which will produce an entirely different Judiciary. It also seems that different people will be appointed if the amendment is accepted because otherwise it will mean nothing. If it is not going to make any difference at all, that is fine. If it is going to make a difference, the clear implication is that those are issues which should, when everything else is even in terms of merit, tip us towards one appointment or another. The issues in question are, of course, whether the person is poor or rich or whether he or she has a certain socioeconomic status - whatever that means - which merits him or her getting the job or and whether these should be taken into account when giving the job to him or her rather than to someone else. I use the word "job" carefully because, as one Court of Appeal judgment recently made clear, being a judge is not just a job, it is a constitutional office. It is not just a career choice for people, it is a constitutional office to which obligations attach.

Is it a good idea to make this amendment? It would be far more politically correct for me to say that this is wonderful and that I have no problem with it. I know that I risk criticism to the effect that by opposing this particular definition of "diversity", I am against diversity in any shape or form. If a committee is bound to conduct its inquiries in accordance with law and if law sets these out as the criteria that it must take into account, it must make inquiry on these issues. It must ask what is your socioeconomic status. Is that fair? Is it in any way fair that we should say that one person has a higher or lower - whatever those phrases mean - socioeconomic status than another or that because the existing Judiciary has this particular socioeconomic status on average, we should look to somebody with a lesser or different socioeconomic status in making appointments to the Bench? That is a mistake in principle.

When it comes to gender, by any standards, a dramatic transformation is taking place under our noses in the gender composition of the Judiciary and, by extension, in the wider legal profession.The simple fact is that the majority of solicitors are women and I think we are approaching a situation where the majority of younger barristers are women. In terms of appointments to the Bench, anybody who looks back over the past ten or 15 years is going to see a dramatic transformation that reflects that gender compositional aspect of the legal professional and, presumably, legal academics, if we extend eligibility to them. We are dealing with a very transformational situation where we do not need a statement about gender or whatever.

In terms of race, ethnicity and minority groups, somebody asked earlier whether we have racial minority people on the Bench, and we have had. If one wants to include race, say Judaism, we have had people on the Bench. If one wants to exclude that and say it is pure religion and is not racial, that is fine. I do not mind. Looking across the legal profession, is the question of race as most people would define it, and that does not include something like Judaism, a criterion for selecting people? Maybe it is. Does one have to direct a merit-based body to, in addition to merit, look over its shoulder at the race issue? I do not think that is necessarily the case.

Ethnicity now means, I think probably by legal interpretation, membership of the Traveller community as opposed to race. There is a distinction here between race and ethnicity. Are we to have separate criteria? People from the Polish community, Lithuanian community, sub-Saharan Africa community or wherever should be also considered on that basis, in addition to merit.

Finally, one has the idea of minority group and majority group. I do not know what the term "minority group" means in this context. Does it mean, for instance, gender orientation or something of that kind, or the fact that one is philosophically an atheist, an agnostic or whatever, or that one is right-wing, left-wing or whatever? I do not know what minority group means in this context. There are very many minority groups in our society. There are strong pro-life people who might probably now be seen as a minority. There are strong reactionaries on some subjects rather than other subjects. Are they to be seen as a minority group?

This brings me back to the point that I raised earlier. What is the so-called majority group? Who is this so-called majority? Who is in it? Who is out of it? My view about the majority is that it is a mathematical concept. If one says Senator Norris and myself are or are not members of the majority group then what is one saying about him or me in this context? I do not know what one is saying about us. I just do not understand what the concept is. Senator Norris is a member of the Church of Ireland and I was brought up as a Catholic. He is gay and I am not. Am I in the majority and he in the minority on those accounts? I just do not understand what this amendment will bring about.

I would have been much happier to simply say that all appointments shall be based on merit. Whether one is black, white or brown, or whether one is gay, lesbian, transgender, bisexual or whatever, all of these things are irrelevant because one gets the job on merit. I favour that approach to the question of diversity. We are dealing here with a notion that somehow the group that appoints people to the Bench should not produce some class of people who are considered to be legal stereotypes. They are all going to be legal stereotypes because they are all going to have studied and practised law for a certain number of years, whether as an academic or as a practitioner. They are all going to be stereotypes in that after ten or 12 years' practice or whatever they are all going to be people who belong to what can be broadly stated to be the middle class. One is not going to find people who are on a dole queue, in a food queue or in a homeless situation who fill the criteria for appointment to the Judiciary. It is idle and self-indulgent to think that one will.

On that basis, I am not going to oppose Senator Ruane's amendment, because I do not want to be thrown into the group that would say I am against diversity, as defined by her. This attempt to define what diversity is casts on the judicial appointments commission a process of interrogating candidates that could be very unfair. Can one imagine any other job where one is asked questions about one's socio-economic status? When people answer the questionnaire honestly, they must ask whether they are talking themselves out of a job and saying something about themselves that will end up with them not getting this job. If one said, for instance, that for the executive officer competition in the Civil Service, one had to define oneself in terms of one's socio-economic status so that the person making the selection could consider that criterion, would one not consider that this was a most unfortunate and retrograde process and one that should not be contemplated? I do not think it should be applied to the Judiciary. I really believe - I say so most sincerely - the best person, wherever he or she comes from and whatever his or her background, in terms of merit, and I mean being judicially impartial, learned in the law and the like should be considered.

I want to really get to the following point, because it comes back through various proposed amendments to the Bill. If one thinks that some group is going to somehow interrogate people as to their philosophical outlook, as to whether their socio-economic background affects the way in which they will decide cases, then crucially, is this body going to address that question? Is Victor Boyhan likely to decide cases in a particular way because of his socio-economic background or am I likely to do so? If so, then one is in serious difficulty in terms of fairness and in my view, and I put this out for consideration by the House, one will seriously compromise the whole idea of a fair and impartial process to select judges. How can it possibly be? Let us suppose that Senator Boyhan and myself were contending candidates for a particular position and both of us were qualified legally. His socio-economic position, as he has explained to this House on several occasions, is quite different from mine in its origin. However, it may not be all that different from mine now, thanks to his industry and expertise.Does anybody think it would be fair of a selection committee to ask him where he came from, who raised him, what circumstances he was raised in, and so on, and then to ask me the same questions, and say that is something we have to put into the balance here? The point made by Senator Ruane in favour of this amendment is that somehow this will affect the way he or I, if given the job, will decide cases. That is the fundamental problem with much of the talk about judicial appointments, that somehow if there were different people from different backgrounds deciding cases, they would be decided differently.

The proposition is that the Judiciary is bourgeois, pro-establishment and comes from a particular socio-economic background, and on that basis has a particular mindset which affects the way it decides cases that come before it. Maybe that argument can be made, but if we set out down the road of selecting judges on the presupposition that issues, such as their socio-economic status, their gender, race or ethnicity or whether they are in a minority or majority group - whatever those phrases mean - will somehow have different outcomes, then we are treading a very dangerous path. Particularly if this function is given to lay people, to make recommendations by reference to these criteria, they are being asked to imagine how people will deal with particular issues which come before them. It is a mistaken view. I will not say any more about it but it is reasonable that I should say that.

The second amendment we are dealing it is amendment No. 4, which is to remove the words "and includes the Chairperson", which is from the definition of lay person. This is significant because, whatever view one has of the definition of diversity, this is effectively a clear statement that no person who is a member of the legal profession, or has been for 15 years, or a judge, should be capable of being the chairperson of the judicial appointments commission. Is this a merit-based appointment? Is it the case that people who are lawyers, and who know something about the law, or legal academics, or judges or retired judges, are somehow marked with the mark of Cain and set out as a special group among the community who on merit should not chair the judicial appointments commission? It is not that we want the best person but we want somebody who is marked out by a special criterion, that they have never practised law, have never been learned in law and have never seen how the system operates, and such a person alone, to be capable of being the chairperson of the commission. That is what the Minister for Transport, Tourism and Sport, Deputy Ross, has imposed upon the Government. That is the criterion for being chair that he has attempted to impose upon the Government, that somebody who knows what they are talking about, regardless of whether he or she should get the job, should be excluded from the job. Merit should have nothing to do with any person who has any recent legal experience, whether judicial or in practice.

Why are we asked to make this distinction, and to depart from merit or the idea that the commission, to which we entrust great powers and freedom to make decisions between candidates for the Judiciary, should be chaired by somebody who does not, by definition, possess those particular qualities? Why is it that the chairperson must, by definition, be somebody who has not practised law in the past 15 years, who has never been a judge, who should not really know what is required of a good lawyer for the one part, or a good judge for the other? The person should not have personal experience of any of these issues.

One is driven to the conclusion that the Minister, Deputy Ross, is driven by a personal agenda in making this particular requirement of his Government partners. I do not want to get personal about this, but I know what the background to his animus in this matter is. It arises from his dissatisfaction with the way a particular case he was involved in as a plaintiff was decided. I will not go further into it. I know the details, and I know what we are dealing with here. That is why he wants this provision to be put in place. I would have thought that is fair enough and that the idea of a lay chairperson would not be unique to Ireland, if it is enacted, although it would be highly unusual. Then I asked myself what particular ideology lies behind this? We have to refer to The Sunday Timesarticle of a fortnight ago which revealed for the first time, by means of an essay by Ms Carol O'Neill, that the origin of this is that the Minister tendered, as a demand of his coalition partners, that they should adopt a Private Members' Bill that he had introduced when in opposition to amend the Constitution as to the manner in which the Judiciary was selected. I am totally in favour of an inventive back bencher, as he then was, coming up with an amendment to the Constitution which he thought would be an improvement on the way judges were appointed, but then I looked at the text of the Bill that he was pressing upon his would-be coalition partners. I remind the House this is a man who said that, while he was negotiating with Deputy Enda Kenny for the formation of the 2011 Government, he believed he was negotiating with a political corpse, to use his own phrase.