Barry Ward (Fine Gael) | Oireachtas source

There is a lot to unpack in this Bill. As the Minister noted, it is a significant change and there are significant elements in the changes that were contained in the Bill. I echo what the Minister said about the quality of the Judiciary in Ireland. We are tremendously lucky to have a Judiciary that is fair and more importantly, that observes the rule of law. That is not even the case in every European country any more. The fact that we have a Judiciary that does its job and does it faithfully to the Constitution and the law is something that is worth marking.

Something we sometimes forget in this country and which is not part of the popular mind-set, is that the Judiciary is a branch of government. Particularly in a common law jurisdiction, even though that may be a dwindling qualification in the context of the European Union, judge-made law is still a significant part of the law that operates on a day-to-day basis in this country. Therefore who occupies those judicial positions is a tremendously important factor and there must be a democratic element of that the same way that the Executive, the Minister herself and her colleagues in Cabinet, are elected, albeit indirectly through the Dáil and the Members of the Legislature are elected by the people. The people have a direct say in those elections. The say that they have in the appointment of the Judiciary comes through the Cabinet. It comes through the Executive and that function is delegated to them by the people. It is tremendously important that there is that democratic element in the appointment of judges because judges are a branch of government and they still have an important role, not just in the administration of justice but also in the making of law in this country. That is an important point. One of my concerns about this Bill is the provisions in sections 47 and 52 that, to an extent, abdicate that responsibility from the Executive to the judicial appointments commission. Section 52 essentially states that the Government cannot appoint a judge if it has not been recommended by the commission. I understand why that provision is there but we should also recognise that this is a highly significant change in the way that we appoint judges, lawmakers of one sort or another, to the courts in this country. I hope it proves to be the right course of action but I think it is important to mark that we should have democratic input. There is still a democratic input, obviously, because the Cabinet is ultimately making the decision but restricting the decision it can make to a fixed number of people appointed by a body outside the Executive is a highly significant change.

On the commission itself, section 12 outlines who is on that commission. I will say a few things on that. The Bill is prescriptive as to who can be on that body. Again, I understand why that is. One of the most important functions I hope and believe this Bill will have will be to give people a public confidence in how our judges are appointed in order that there can be no suggestion, as there has been in the past and unfairly, that there has been any kind of undue influence put on the appointment of certain judges in certain circumstances. You can pick any number of commentators who have said things like that in the past. I think the experience we have had with our Judiciary and how excellent it has been on the whole belies that notion. But if we can inject that element of public confidence through this Bill then that would be a good thing on the whole.

I welcome that the Chief Justice will chair the commission. That is important. I welcome the fact that the Attorney General is on that commission although I note that he or she is a non-voting member. When I say it is prescriptive, it is quite clear who is going to be there. The provision in section 12(2)(b), which requires of the Judicial Council nominees that one will have been a former practising barrister and one will have been a former practising solicitor, to my mind is unnecessary. I also think that it is foolhardy, to be perfectly honest. It presumes that there will be an equal or even substantial representation by both professions in the Judiciary. It is more important that the people who are represented on the commission are people who have experience of the courts. That is why I also have difficulties with the amendments in respect of the Courts (Supplemental Provisions) Act 1961, later in section 63, which inserts a new section 45A, that solidify the right, for example, of legal academics. There are legal academics in this country who would make excellent judges and others who would not make excellent judges but a fundamental qualification of a judge is someone who has experience of how the courts operate. The law is not something that exists only in books. There is a procedural aspect to it that comes from the practise of law and it is a tremendously important aspect. I am not sure that someone who does not appear in court or if someone is a legal academic who does not appear in court, will have the same breadth of understanding of that procedure that is a really important part of the day-to-day job of a judge. In that regard I think it is regrettable that there is no provision for the legal professions, barristers and solicitors, to be represented on the commission. This is not with a view to furthering their interests but with a view to having the benefit of the experience they have in court on a day-to-day basis, which is very important. Practising lawyers in this country, no matter what level of court, District Court to Supreme Court and whether solicitors or barristers, have a very keen understanding of how the courts work and of who the personalities in the court system are. That can be good and bad. It should not rule the roost because of course there will be personality clashes and likes and dislikes and that should have no role whatever in these decision-making processes but, as we raised at the committee, there should also be room for people who have experience of particular practitioners to be able to bring the benefit of that experience to the commission, even as a minority voice within those discussions.

Likewise, an earlier iteration of the Bill contained a provision for the Irish Human Rights and Equality Commission, IHREC, to have the right to appoint a person to the commission. There is a value in having that particular perspective represented within the commission to give it a flavour of the perspective of a statutory body that is looking at the administration of justice in this country and the making of laws, through judge-made laws, through the prism of human rights and equality which we know is an enormously important aspect of the courts system in this country. We will have a chance to address this on Committee Stage, and the Minister will have given consideration to it already, but would she consider even at this stage, in the context of any future amendments, looking at IHREC's right or role in the judicial commission or those of the legal professions either? There is some benefit to be had in respect of both.

There is obviously a large technical element to this Bill. One thing it does is to set up a whole new agency to do this. I acknowledge what the Minister said about the co-operation of the members of the JAAB and the bodies that precede the judicial appointments commission. It is welcome that they have been of assistance here. It is proper but it is also welcome and worthy of acknowledgement. In a subtle way, the Bill provides for a significant transformation in the way that we appoint our judges.

I welcome the Bill. It is a good legislation because it clarifies issues that might have been open to interpretation in the past. It will set them on the straight and narrow even if there are elements of it with which I disagree. I acknowledge the fact that it is quite prescriptive and for a good reason. On the whole it is good and solid legislation. I hope that we will have an opportunity to discuss the minutia in greater detail on Committee Stage and I look forward to that debate.