I am pleased to have an opportunity to contribute to the debate on this Bill. Because of the extremely serious background to the introduction of this Bill, and the fact that one of the most effective Governments in the history of this State went out of office on account of a related issue, I would like to initially comment on the origins of it. Towards the end of last year the appointment of the President of the High Court became a matter of serious controversy between the two partners in Government, and, in particular, between the Taoiseach and Tánaiste. The Tánaiste was particularly concerned about the appointment of the Attorney General to the Presidency of the High Court. The main cause of his concern seemed to be that the suggested appointee was too conservative and without experience as an ordinary judge of the High or Supreme Court.
In order to narrow any possibility of serious controversy in the future regarding senior appointments to the Judiciary, it was agreed between Fianna Fáil and Labour that a more formal legal framework should be provided for use in the future management of such appointments. Such a move was strongly supported by both parties and drafting of the appropriate legislation was virtually complete at the time of the change of Government.
The question therefore immediately arises now as to why there has been a delay of 12 months in bringing the rainbow coalition version of the Bill before this House. Since the Labour Party was fully involved in bringing the previous draft to near completion, why has it taken at least one-third of the life time of this Government to bring the Bill before us? To put it mildly, it is extremely difficult to reconcile the headlong haste of late 1994 with the leisurely pace adopted in dealing with this legislation in 1995.
The first question to be addressed when examining the 51 sections, many sub-sections and the schedules of the Bill, is has the delay been worthwhile and has it resulted in any refinement of excellent legislation? The answer unfortunately seems to be no on both counts. While some aspects of the proposed legislation are good it is extremely disappointing in general. It is particularly weak in dealing with senior appointments of the type which caused such serious controversy and damage last year. Taking the various provisions of Part IV as a whole, can anyone argue with conviction that some value-added component has been added to the process?
Part I of the Bill involves transferring the responsibilities of the Court of Criminal Appeal and the Courts-Martial Appeal Court to the Supreme Court. At first glance this seems to be a sensible proposal and may result in the more efficient operation of these courts. Similarly, Part II seems to be largely without controversy. The increase in the number of ordinary members of the Supreme Court is welcome and signifies an acknowledgement of the massive overload of these systems at the present. The decision to allow the division of sittings of the Supreme Court is also a practical acceptance of the implications of increased throughput and workload.
The increases in the number of judges of the High, Circuit and District Courts are also welcome as the credibility of our court system is continually undermined by understaffing.
Part IV deals with judicial appointments and is without doubt the kernel of the legislation. If the happenings of last year are to mean anything, then this element of the Bill should provide a clear example of openness, transparency and accountability in senior State appointments. Is this the case?
The answer is unfortunately a very definite no. The proposed structure seems as likely to cause controversy and confusion and result in a new standard. Despite the various provisions of sections 12 to 23, the new advisory board seems to have little teeth in the final analysis. I am surprised it is proposed that the Government, through the Minister for Justice, may directly appoint as many as three of the ten person board as well as the Government appointed Attorney General as anex officio member. In the context of last year's controversy, this simple initial proposal could easily be interpreted as cynical and almost unbelievable.
Similarly, the manner in which the proposed list of candidates is drawn up raises a number of questions. I am surprised to note the general nature of the board's procedures. Other than employing a number of routine techniques for recruiting staff, for example advertising, head-hunting to a certain degree and interviewing candidates, what precise value-added qualities does the Bill bring to the process? For example is there any attempt to specify minimum professional qualifications? Other than refer to minimal experience requirements, the Bill does not set precise minimal standards in the appointment of new judges.
In terms of fair play and justice I have serious reservations regarding the provision which allows the board to consult persons concerning the suitability of applicants. Since the board is to operate with total confidentiality, what safeguard has an applicant to ensure that his or her candidacy is not seriously undermined by unknown parties?
The ultimate task of the board seems to be simply to provide a crude shortlist to the Minister which he, or she, may or may not decide to use. The provision in section 16 (6) that "the Government shall firstly consider for appointment those persons whose names have been recommended" does not seem to offer much in terms of real power to the Advisory Board which has laboured to produce the shortlist of ten applicants. Presumably the board cannot express its order of preference for the individuals on the shortlist.
Another matter that concerns me is the extremely vague guidelines given to the board by which it must presumably assess all applicants that come before it. For example, it must ensure the applicant has a degree of competency appropriate to the position of judge. In what manner and at what cost in terms of time is this task to be carried out?
Since the proposed Advisory Board is to include the most senior figures in our judicial system, will the requirements of section 16 (7) place a major further workload on the shoulders of the already hard pressed individuals involved? How is the group to fully and fairly assess the character and temperament of each applicant? It seems in reality such tasks will of necessity be delegated to the administrative support staff of the Advisory Board which would not be consistent with the objectives of placing the overall process in the hands of the most senior figures in our judicial system.
While I can understand the purpose of section 17 which removes sitting judges from the consideration of the board, it further dilutes the relevance of the work and recommendations of the Advisory Board.
I welcome the proposals in section 19 which oblige newly appointed judges to undertake, where considered necessary, further courses of education and training subsequent to their appointment. If our Judiciary is to maintain the necessary mastery of both domestic and European Union legal developments, it is critical that the necessary resources are allocated and provisions are made to ensure the maximum possible degree of participation in continuing education.
Anyone who followed the dramatic events of November and December last year, will be surprised when they read section 23 which deals with the appointment of the Chief Justice, President of the High Court, President of the Circuit Court and President of the District Court. It simply states that the Government must have "regard first to the qualifications and suitability of persons who are serving at that time as judges".
In general, I welcome a number of provisions which deal with the Master and Taxing Master of the High Court, the Circuit and District Courts. As a layman I am somewhat surprised at the provision in Part X, section 68 (3) which involves both the Chief Justice and the President of the High Court in determining the number of judges sitting on a High Court circuit. I welcome the specific provision of resources for further training in section 80.
I support specific elements of the Bill while I am extremely disappointed with the provisions on the appointment of new members of our Judiciary. Despite the best intentions of those who drafted this legislation, the net effect is likely to be either trivial or act as a source of confusion and controversy. Any pretence at serving the cause of openness and transparency seems to have little substance.