Michael McDowell (Independent) | Oireachtas source

No, for the very reason I will outline. The huge pretence in this legislation, which I believe is politically dishonest, is that we are going to have politically neutral appointments made in the future. What we are doing here is vesting in the Minister the right to produce four people, chosen by him or her, to be on the commission to mark the judicial members, so to speak.

Let me address the question of why, if one is in favour of discretion in the appointment of judges, one should be against it here. I will explain. Subsection (6) states the Minister shall not make an appointment of his four nominees unless he has gone to both Houses of the Oireachtas with those names and has approval from each House. He has to theoretically justify his choice of the four people, although it is not clear that the Members of the Oireachtas will be told whom he chose them from and who else was found to be suitable.

The point I find very difficult to accept is that subsection (7) seems to contain an anodyne little provision whereby, before the appointment, and just to get the whole thing up and running, the Minister can designate a person to be the first lay member of the commission. Subsection (9) implies a person designated by the Minister prior to the establishment of the commission shall not be the subject of any Oireachtas scrutiny at all. Where are we now? We are now in a situation in which the first tranche of so-called independent lay members is hand-picked by the Minister without any Oireachtas scrutiny whatsoever. That is what this Bill means. You have to read it very carefully but that is what it means. It means the Houses of the Oireachtas, on the first occasion the commission is established, will have no function at all in approving the people selected by the Minister in power at the time. That is quite a remarkable departure from the spin that has been put on this legislation, which suggests four lay people chosen by an independent body will be in place to act as a counterweight to the Judiciary. Four political appointees will be in place without any Oireachtas scrutiny whatsoever, having been appointed by a Minister who can appoint such people without coming next nor near the Houses of the Oireachtas. Why subsection (9) is included at all, I do not know.

If there are to be pre-establishment designations, why not say they have to be approved by the Houses of the Oireachtas? This is a deliberate ploy to take away from public scrutiny a highly political decision that will be made by the Minister without any Oireachtas scrutiny whatsoever. Who knows what parties will be in government when all this happens? Who knows who will be Minister? We are giving considerable power to some future Minister – maybe the current Minister will still be in office – to stack the commission at its outset with a number of nominees.

The next interesting point is that if you look forward to section 14(4), you see that this sneaky little ploy gets worse. It states that, subject to section 19(3), a lay member shall hold office for a period of three years from the date of his or her appointment, and that where the lay member’s term of office expires with the passage of time, he or she may be reappointed by the Minister to the commission for one further period of three years without a further recommendation by the Public Appointments Service or a further resolution under section 13(6), which is the resolution of either of the Houses of the Oireachtas. Therefore, what we are doing here is giving a licence for six years from the coming into effect of the Act to whoever is making the initial appointments to stack the commission with political appointees. It has got to be understood that this is what is going on. This legislation is far from what it is portrayed as; it is effectively giving the Minister for Justice, at the time it will come into operation, the right to determine who may be in place for six years thereafter without any say-so from the Houses of the Oireachtas or any public scrutiny.

I would be impressed if section 13 at least stated the Houses of the Oireachtas shall be informed, when the Minister comes up with his four names for approval, as to who else is on the list, but I am absolutely sure that will not be done. The Minister will not say A, B, C, D and E were rejected to come up with the list of four, nor will the Minister say 16 people in addition to the four were considered suitable but that he or she chose his or her own political appointees from the list to do his or her bidding. I refer to the making of highly discretionary and subjective decisions about who should or should not be on the shortlist when it is submitted to the Government.

I welcome Senator Ward’s comment but it is in the context of what I have outlined that the amendment is proposed. If we are to have a system whereby people apply to the Public Appointments Service and prove to be suitable, why not give the Public Appointments Service the right to state who the best people are? It is the service that will have interviewed the people. The Minister will not have done so. The Public Appointments Service, an apolitical body, will be considered to be in the best position to make a decision. If there are 20 suitable people, why should the Minister not say to the body that it should select the people and that he or she will go to the Houses of the Oireachtas and propose their appointment? However, none of this is included in the Bill. What we are dealing with here is the direct and diametric opposite.We are vesting in the Minister for Justice the right, prior to the first operation of this commission, to determine without any scrutiny whatsoever who the four lay appointees will be, provided that they have been seen as suitable by the Public Appointments Service, without any regard as to who the other people that service considered suitable were and without anybody knowing the basis on which the Minister made his or her decision to appoint them. It is an elaborate con job. I am quite happy to use that language about it because it is deliberately designed to create a smokescreen of impartiality while creating a situation in which people can be there for six years before anybody in these Houses can have any insight into how they got there, who they were preferred over and so on. There is no reason to include section 13(9). Why is it included in section 13? Why is it said that the people who are there on day one should not also be subject to parliamentary scrutiny? No reason for that provision is given anywhere. The explanation as to why no reason has even been tendered is very simple. This is a political con job on the Irish people. It is proposed with the hope that the Minister for Justice who is in office at the time this commission is established will be in a position to ensure that four people arbitrarily selected by him or her will be in office for at least three and possibly six years without any scrutiny. I find that repugnant.

Each of the amendments Nos. 12a, 12b and 12c simply state that the words “are suitable for appointment” should be got rid of and replaced with “should be appointed”. The Public Appointments Service should be given the role of saying that 12 of all the 20 people who applied are suitable and that a certain four should be appointed and instructing the Minister to go tell that to the Oireachtas. If the Oireachtas does not agree with the Public Appointments Service, it can always say "No" and refuse to pass the resolution. However, the secret appointment on a political partisan basis of four people, who are only required to meet the threshold of not being considered unsuitable in order to be deemed suitable, from a broader list of people is indefensible. That is why these three amendments have been put before this House.

I will make one other point. It has been stated on a number of occasions here that this Bill is somehow necessary to bring our system of appointing judges into line with European norms. The Long Title of the Bill seems to imply the same. I recently spoke to someone whom I will not identify but who is a very senior person in the court of justice hierarchy and that person told me that there is nothing wrong with the Irish system as regards European law and drew my attention to the case brought before the court of justice with regard to a change in the system of appointment to the constitutional court of the Republic of Malta. In effect, the court held that a member state such as Ireland that entered the European Union with its present system intact satisfied the criteria regarding the independence of justice at that time and that no further amendment was necessitated or indicated by the views of the European Court of Justice with regard to, for instance, the interference of the Polish Government in the tenure of Polish judges through recent proposals. I note that the decision was based in part on the opinion of the then advocate general, Gerard Hogan, an Irishman and a very considerable jurisprudent. The court's decision was clearly to the effect that there is nothing wrong with the Irish system at all. Europe should not be blamed for this. This is a different agenda.

I will go back to that seminar about solicitor judges. The Minister of State, Deputy Carroll MacNeill, was there and she made a very interesting point, which certainly struck home with me. She said that it was astonishing that, in the year 2014, some members of the Irish Judiciary approached the then Department of Justice and Equality to suggest that the system of appointment that operated to put them where they were needed to be reformed. I am always amused when I see people do something like that. I always say that everyone remembers and celebrates their own birthday but few people like to contemplate what happened nine months earlier. I make the point that the members of the Judiciary who claimed that there was something wrong with the system that put them in a position to approach the then Department of Justice and Equality to urge reform seemed to have forgotten that they were appointed under the very system they were putting in question. The Minister of State wondered why that was so and said that it was amazing that they did that but I know what it is all about. Some members of the Judiciary wanted then to arrogate to that same Judiciary a role in selecting its own members.

I want this House to know that, to my knowledge, when I was Attorney General and when I was Minister for Justice, Equality and Law Reform, on no occasion whatsoever did any judge, high or low, in any court ever make a representation to me or to Government that a particular person should be appointed to the Bench, promoted to the Supreme Court or whatever. Unfortunately, however, there was a lapse thereafter and some judges became active in deciding who should be appointed to their own courts and lobbying for other members of the Judiciary and for others who were not members of the Judiciary to become judges. That was wholly a departure from the previous convention, which was that the Judiciary did not trespass on the discretion of the Government. It was wrong that some senior judges became involved in campaigning, lobbying or whatever for people to be made judges or to be promoted to particular positions. That was very wrong indeed. The old system has delivered us a really good Judiciary, which is widely recognised and admired across the European Union for its quality, independence, impartiality and freedom from any taint of party political influence. This measure departs from that and hands to the Judiciary four people hand-picked by a political Minister in the way I have just pointed out is proposed under section 13 and states that it is superior to the system that has worked with great impartiality for most of a century.

When I say "great impartiality", I know that when I was Minister for Justice, Equality and Law Reform and when I was Attorney General, appointments were made regardless of people's political affiliation or their previous views of a party political kind. I am not going to embarrass anybody by mentioning names but there were former officeholders who were clearly identified in their youth with parties that had nothing to do with the two parties that were in government when I was there. They were appointed simply on their merit. There was no problem until certain people in the Judiciary decided they wanted to have a role in the construction of that same Judiciary. There was no problem until then but there is now this problem and this legislation. That is why section 13 is a fraud. It purports to state that there is some kind of independent process but, in effect, it gives the first Minister the right to appoint four people on the basis of political discretion without any supervision or transparency.