Michael McDowell (Independent) | Oireachtas source

I move amendment No. 2:

In page 8, between lines 34 and 35, to insert the following: “ “practitioner representative” means a practising member of the solicitors or barristers profession nominated by the Law Society of Ireland or the General Council of the Bar of Ireland, as the case may be, and appointed by the Minister;”.

Amendment No. 2 is in the names of myself and my fellow Independent Senators. Amendment No. 2 is part of a number of amendments, which are now grouped together for discussion. Its purpose is to ensure that the judicial appointments commission should include among its members one practising barrister and one practising solicitor nominated by their respective professional bodies. I know it is an objective of the Minister to keep the commission small.I regard it as close on ridiculous that in making judicial appointments both branches of the practising legal profession are given no input whatsoever into a consideration of the suitability of a candidate for appointment to the Bench at any level. This seems to be a deliberate policy in this legislation and it is a change from the previous legislation promoted by the former Minister Deputy Flanagan.

To say that we do not want to hear what the representatives of either legal profession have to say at all on the suitability of candidates for the Judiciary and - worse than that - that the professions are effectively debarred from having any part in the process whatsoever because if they interfere, they will be accused of seeking to influence the outcome of the commission's activities seems to be completely indefensible.

Nobody is in a better position to judge the temperament of a solicitor or a barrister than his or her colleagues in either branch of the profession. If they are ten years in practice, nobody is in a better position to say that while the person may appear squeaky-clean, there is a screw missing, there is an attitudinal problem, they are personally not given to being impartial or are unsuitable for 1,000 different reasons. Nobody knows these things, but their colleagues do know these things. Their colleagues on the Judicial Appointments Advisory Board have that function.

As Attorney General, I was a member of that board. The judicial members of that board would ask if anybody knew much about the person being considered. The legal practitioners would generally say that he or she is a good person. However, sometimes they would say, "A big warning should be attached to that person. They are really not suitable. Their CV as handed in may look brilliant but we are warning that there could be question marks there." There could be a conversation about why that was said about individuals. I am not cooking up some crazy theory here. I am talking about every court in the land. There are solicitors and barristers who want to become District Court judges. The people with whom they practise in their local county will have a view and their view may not be determinative if but at least it should be heard. I find it difficult to understand why an ideological decision has been made here.

Regarding independence from the Government or political independence, the input of the legal practitioners heretofore has been absolutely neutral. Nobody in the Judicial Appointments Advisory Board will point out that a candidate is a member of the Labour Party, Fine Gael or whatever and should or should not be appointed on that basis. Nobody will say something like that on behalf of either of the professions. Nobody who was appointed to the Judicial Appointments Advisory Board would for one minute consider discussing the politics of somebody who is under consideration.

We are left here with what I consider to be a brazen attempt to exclude a group of people who really have some practical experience of their colleagues. They have some vague idea of their reputation, how they really conduct themselves and what kind of person they really. If they are extremely touchy, short-tempered or whatever, this may not come out in a carefully schooled interview. This may not come out if the decision is left to a number of judges and laypersons who have not heard of the person in question and know nothing about how they spent the ten years in practice that they are obliged to have spent in order to qualify for appointment.

I understand the Minister's desire to keep this body reasonably small and compact. However, the extension from nine to 11 for the purpose incorporating two practitioner representatives in the manner suggested in the group of amendments we are discussing here would enhance the board, would make its decision safer and would eliminate risks which otherwise will not be adverted to. People will present letters of recommendation or whatever. People will present themselves for interview but will be interviewed by strangers who know nothing about them, know nothing about their weaknesses and have not been warned by anybody that this is not a good idea.

From my own participation in JAAB I know that the presence of practitioners did not affect the independence of the appointees, but brought this vital element of reality in possibly identifying someone as being seriously unsuitable because they did X, Y or Z. They may have fired all their staff from the solicitor's office. They have misled judges as a barrister and things like that. That information is only available if there is some channel for it to come before the persons who are making a recommendation. Unless the members of the Judiciary or the lay members are to go around and try to pick up gossip about people, that whole dimension of the candidate's personal standing in their professional community is completely left out.

In conjunction with this, because two extra lawyers were to be on the commission, I tabled an amendment proposing that the number of laypeople be increased by one. That has been ruled out of order because it might impose a charge on the Exchequer, which frankly is weird, but there you are. Another amendment, which was debated at length here under the Bill proposed by the former Minister Deputy Flanagan, is now said to be outside the scope of this legislation.

I am not trying to diminish the level of participation of laypeople or to switch the balance in any way. We have something that works well with input from professional colleagues which can be extremely valuable in the consideration of a person's suitability. Instead, we will have a group of people who have never met the person before they interview them, know nothing about them, and will not try to pick up intelligence as to whether they are good, bad or indifferent because that will not happen. Neither the laypeople nor the members of the Judiciary will do that. Appointments will be made on the blind. People who present well at interviews and seem to have a squeaky-clean paper application will get appointed even though there were people who could have said it was a mistake.

We have not done much in our proposed amendment.We have merely said that one practising member of the solicitors' profession and one practising member of the barristers' profession, nominated by their professional bodies for appointment by the Minister for a term of three years and removable in the same way as a lay member if there is any problem with them, would bring significant added value to the commission and that their absence would make it seriously more likely that mistakes will be made by appointing people on temperamental and other grounds to the Bench.