Michael McDowell (Independent) | Oireachtas source

I am and, therefore, I am coming to the question of a lay majority and where it came from. We should bear in mind where it came from. My attention was drawn to an article in The Sunday Timesrecently which referred to a new book of essays on judicial power in Ireland. It referred in particular to one essay in that book that set out in detail the circumstances that led to the particular features of this legislation being put in place that section 10 now deals with. Prior to becoming a member of the incoming Government, the Minister for Transport, Tourism and Sport was engaged in negotiations with Fine Gael among others. To my complete surprise, as part of the negotiation, he proposed that a Bill he had tendered in Dáil Éireann on this subject while a member of the Opposition should be made part of the programme for Government. He adamantly fought for it at the time. His Bill proposed a constitutional amendment regarding the appointment of judges.

I want this House to consider what he was proposing then and where the provisions in section 10 now emanate from. He proposed at the time that the judges of the Supreme Court, High Court and all other courts established pursuant to Article 34 of the Constitution, should be appointed by the President on the nomination of a joint committee of both Houses of the Oireachtas in a manner provided by law. Far from depoliticising the appointment of judges, it was his intention to, and I will come back to this, emphatically politicise it and make it a matter of public debate as to the qualifications of any particular individual by Members of the Oireachtas in a system similar to the US system.

He proposed at that time that a judicial appointments council composed of persons drawn from a broad spectrum in society - where have we heard that recently? - in a manner provided by law would recommend suitably-qualified candidates on merit for consideration of a joint committee of the Houses of the Oireachtas for nomination for appointment as a judge by the President. He then proposed that no member of the Judiciary or of any legal representative body would be a member of the judicial appointments council. It was his proposal at that stage that one group of people could have no input whatsoever into the process, namely, anybody who was either a judge or a practising lawyer. He proposed to insert that provision into the Constitution.This is the man who now stands for a very different proposition, to which we will return. His Bill stated, "For the purposes of this section," wait for it - this is one of the most extraordinary and most undemocratic proposals I have ever heard, "the joint committee duly appointed shall [consist of] members of the Houses of the Oireachtas, the majority of whom are not affiliated to the political parties who form the Government." This was an extraordinary proposition because it meant in effect that what he was then canvassing for was a system of appointment whereby the Opposition would have the veto and the Government would have a limited input. This is relevant to section 10 because, as the essay in Judicial Power in Ireland, to which The Sunday Timesreferred, states of the proposal:

The political aspect had two expressions: the politics within the proposed Government in 2016 and the politics external to government with the Judiciary. The 2016 general election produced an inconclusive political picture and great uncertainty about whether a new Government could be formed. It could, but a part of that new Government depended on the support of a newly formed alliance of independent Members of Dáil Éireann, each with their own political interests and priorities. One of those Deputies was the then Deputy, now Minister Shane Ross, TD, who had a long-standing interest in the subject of judicial appointments and published a Private Members' Bill in 2013 that proposed rather dramatic changes to the judicial selection system. The change proposed was a constitutional amendment to create a committee of the Houses of the Oireachtas that would consider judicial appointments, hold hearings with judicial candidates and recommend the name of the judge to be appointed by the President. There was no additional substance to accompany the proposed constitutional change, no supporting legislation or detail, but the primary problems with this model was that it was fundamentally undemocratic. It gave power for judicial selection to those Members of Parliament who did not command sufficient support to form a Government and it replicated the worst and most politically charged element of the federal judicial selection process in the United States, the public hearing of a proposed judge before a parliamentary committee. It was, in short, a risky and unnecessary change with no supporting theoretical or practical examples of where such a model was working well. It was unthinkable to the Fine Gael Party leading the negotiations and could not have progressed.

The interesting point about this is that the Minister, Deputy Ross, later stated of that negotiation that it was the most important issue, as far as he was concerned, in the formation of the Government and that he argued about this for days on end with the Fine Gael Party to bring in the principle which is now in section 10 as a compromise which was forced on him by the Fine Gael Party at the time. I just want the record of the House and the public discourse to show that this proposal for a majority of lay members, albeit part of a Bill which was in embryonic form before the Independent Alliance ever came near entering government, was an effort to buy off a crazy, undemocratic and unthought-out scheme for which one would-be Minister was arguing with all the force at his command.

Additionally, the Minister said no one had a veto over the appointment of judges, and a number of appointments have been made in the recent period. The Taoiseach recently said that the newspapers sometimes distort things, and perhaps they do. His remarks in America, in my view, were probably a little exaggerated, and the media took too much offence to them. They did not worry me all that much, infelicitous as the side reference to President Trump may have been. I looked this morning at the record among newspapers of this issue.Much of this related to a time before the current Minister took up his position, but there is no doubt that, systematically between 2015 and 2017, there was detailed resistance to the appointment of judges. The Minister for Transport, Tourism and Sport, Deputy Ross, stated that there would be no further appointments until the Bill had been passed. He stated: "We have appointed the last judges under the old system." It is good to know that the Minister, Deputy Flanagan, has at least agreed that it will probably be between one and two years before this system is up and running and properly constituted. That is optimistic. Take the example of the Legal Services Regulatory Authority. It was not due to any obstruction by anyone outside that body that it has taken a long time to get up and running and to get itself the offices, staff, resources and systems it needs to carry out its functions. Regardless of whether there is a lay or non-lay majority under section 10, the claim made consistently by the Minister for Transport, Tourism and Sport that we have appointed the last judges under the old system is wrong.

More worrying is a report in The Irish Times, published on 25 March under the byline of a senior journalist, Mr. Pat Leahy. I do not believe this is fake news or exaggerated. He wrote: "Minister for Transport Shane Ross has said politicians are continuing to appoint 'their friends' as judges, but that legislation to reform the process will be in place by the summer." It is scandalous for a member of the Government to say that the other members of the Government are simply appointing their friends to high judicial office. I do not believe it is true, as I have some knowledge of the appointments made by this Government in recent months. Its members are not in any sense engaged in a campaign of appointing "their friends". It has to be said that the suggestion that the Government is somehow continuing to act improperly by exercising its constitutional function is unjustified and a shameful allegation by one member of the Cabinet against other members of the Cabinet.