Michael McDowell (Independent) | Oireachtas source

The point that I was making was relates to a quick search of the Internet this morning on the question of a lay majority. On 30 October 2016, almost two years ago, in an article in The Sunday Times, Mr. Mark Tighe, another respected journalist, stated, "Shane Ross has insisted that the Independent Alliance will block the appointment of any new judges until next June, by which time he expects a new judicial appointments system will be ready". This is the point that really worries me. If this new system is going to take between one and two years to put in place after the Bill is enacted in whatever shape or form it takes, that threat has been made repeatedly in the media - I only spent a short time earlier ferreting out all the occasions on which it was made - and it promises to do very serious damage to the judicial process and the administration of justice.

It is interesting that in October 2016, the Minister for Transport, Tourism and Sport, Deputy Ross, stated that the Independent Alliance agreed with Fine Gael to appoint judges as long as they were the final ones appointed in that way. Those involved agreed to that. It was an extraordinarily claim and it was not denied at the time. The Minister continued by stating that this was an incentive for the Independent Alliance and Fine Gael to let it through and, indeed, that it should also be for the judges. That sounds as if the judges were stopping it from going through. In the Dáil that week, the Minister claimed that the idea of a lay majority on the appointments commission was "loathed by the judges". He continued by stating that he thought there was a campaign saying that justice was being denied to the people but that the number of gaps was minute and not at a critical level. The Minister then said that anybody suggesting justice was being denied was just using that argument for their own ends and if they co-operated in respect of the Bill - and this was in a statement to the Judiciary - and did not obstruct proceedings, then it would go through very quickly. He stated that it was a reforming Bill.

The Minister then indicated that Fine Gael was not as enthusiastic but that he had had meetings with the then Tánaiste, Deputy Fitzgerald, and the Attorney General to discuss the Bill the previous Friday. He stated that they shared his sense of urgency. This is the important point I mentioned earlier about the crazy scheme to have an opposition committee determine who would be judges from now on. The debate the Minister had with Fine Gael, as recorded in an essay by Dr. Jennifer Carroll MacNeill, was the biggest battle he had during the negotiations on the programme for Government. In the same quotation attributed to the him. the Minister stated that it took days and nights of fighting, that it was resisted strongly by the entire Fine Gael delegation and that he did not expect the members of the latter to be as enthusiastic as him.

Let us be very clear about from where this idea came. It was something which was jemmied out of Fine Gael at gunpoint. The gun in question was a demand for a crazy system allowing the American model whereby every judge thereafter would have to be approved by a committee of the two Houses of the Oireachtas on which the Government had to be in a permanent minority. It also had to come from the nomination of a body on which not one single judge or lawyer could serve. That was the demand from the Minister, Deputy Ross, at the time and that was what he spent days and nights arguing for. Eventually, he was fobbed off with a concession that there should be a lay majority on this committee.I want the record to show what we are dealing with. This Minister recently accused his colleagues in the Government of appointing their friends to judicial positions, a scandalous and outrageous accusation. The same Minister stated that his proposal, "was very strongly resisted by the entire Fine Gael delegation, so I do not expect them to be as enthusiastic as I am". It is the public record so let us not kid ourselves that there is a united Government here. There is not. The Minister, Deputy Ross, told us there was not. Let us not kid ourselves that this came from a conviction that there should be a lay majority on the judicial appointments commission. It came from a man who at the time of negotiations on the programme for Government argued that judges should not have any role whatever in the appointment of judges. He argued that lawyers should not be consulted either and he had a crazy idea that an Opposition committee would interview and examine people who wanted to be judges on the American model, and its nomination would go to the President.

How does this colour our view of section 10? It demonstrates its origin and indicates precisely from where this idea came. It came from a tawdry compromise between people who knew it was wrong on one hand and a person coming up with a far-fetched, deeply destructive and anti-democratic proposal on the other, based on a profound animusagainst the Judiciary. This is a man who has written books about cronyism in the Judiciary, etc. It is what we are dealing with.

We can get back to the question as to whether we should agree with section 10, the point of the debate at which we are at. Nobody wants it except one or two people. The Independent Alliance has togged out on occasion in support of the Minister, Deputy Ross, on the matter. I have a very good idea that if the Minister, Deputy Ross, did a Boris Johnson on this matter and left the Cabinet, the Minister of State, Deputy Finian McGrath, would be into his seat as quick as one might imagine. The Minister, Deputy Ross, would then be isolated on the subject and forgotten.