Barry Ward (Fine Gael) | Oireachtas source

I appreciate what Senator McDowell has said. I will not say that I agree with everything he said, but as I said on Second Stage – and I tabled an amendment in this vein – the culmination of this Bill is de facto an abdication of power from the Government to the Civil Service. Being perfectly frank, I do not understand why it is that the Government has taken the power it currently has and devolved that to people who are not elected. I say that without criticism of those people, obviously.

The reality is that our democracy and Government is made up of three branches – the Executive, the Legislature and the Judiciary. The Judiciary is equally a part of our democratic Government. The democratic element of that is introduced by the appointment of judges by the democratically elected Government. That is important.

Unfortunately, in the modern era, there is, as has been mentioned, a growing view that somehow politicians cannot possibly make decisions that are not in their self-interest, which is demonstrably not true. In fact, if one looks at the decisions that politicians make, they are invariably against their own interests, as is evidenced from this Bill. They frequently make decisions that are objectively not in their interest. They do so because they serve the people they represent, the population at large and the country in whatever way it is.

The same is true in relation to decisions on the appointment of judges. If it ain’t broke, don’t fix it. I know that there is a drive to transparency, but the reality is we are very lucky in this country – and I have said this on a number of occasions as well – to have a Judiciary that is honest, reliable and respectful of the rule of law, applies the law without fear or favour and is essentially corruption free, insofar as anybody can say that about any body of people. It is in stark contrast to other common law jurisdictions and the judiciaries in those countries. We can be enormously proud of the judges we have at every level of this country. Being perfectly honest, I do not believe this Bill will change that for the better.

The transparency drive is based in the notion that we cannot trust politicians. I regret that politicians are buying into that at one level or another. I do not understand why, in section 51, this Bill would seek to essentially remove from the Government the power to decide, of their own motion, who should become a judge. The amendment that I tabled earlier was to the effect that the Government could still exercise its franchise to appoint a member of the Judiciary outside the recommendations that came from the commission, but would have to explain why that was the case. Any number of examples have been expanded on why that might arise on any given occasion. This section is retrograde because it removes that discretion. God knows that the more discretion people have, the better it is, as a general rule.

I do not agree with Senator McDowell insofar as this is not in perpetuity. He pointed out, in fairness, that it can be repealed although I would also recognise the unreality, perhaps, of that and the fact that once a power is taken away, it is very difficult to give it back. That is why I have grave reservations about this. I am in real terms committed to supporting the Bill in the broadest way and I recognise I am part of a political party that is supporting it. However, the reservations being raised are legitimate. I ask the Minister of State to seriously consider them, if not on Committee Stage, then on Report Stage.