Tá áthas orm an deis seo a bheith agam labhairt ar an mBille seo, Bille a bhfuil stair thragóideach ar go leór bealaí ag baint leis ach stair shuimiúil.
Some of my colleagues on this side of the House will be aware that since I became a Member more than 20 years ago I have been in the habit of keeping a fairly detailed diary of developments while in Government and out of Government. Certainly, the period of gestation for this legislation will have a very proud place in that diary whenever — maybe in another 20 years time — it is printed.
The debate which took place here on 2 November 1994 makes very interesting reading. I wish to quote a few paragraphs for which I will give the references later
This Bill is the product of the most closed Department of State led by a Minister who has many skills but who puts no value on accountability and transparency. Why do we allow ourselves to be bullied? Surely it is time the Dáil had the courage to assert itself. What happened to the great Labour tradition under Brendan Corish and Frank Cluskey. This latest legislative chicanery will add fuel to the fire. There is a burning desire in the hearts of the people for greater accountability. It is time that became a fire in the hearts of Members of this House.
Judges themselves cannot escape criticism. There is no Lord Mackay in the Four Courts. The opposite appears to be the case——
We have more High Court judges than Cabinet Ministers, and they have a difficult job to do. However, do they, and their colleagues in the lower courts, sit for long enough per day and on enough days per year to justify an endless creation of more judges? I will put it in blunt terms that both the judges and the public will understand. Some judges and administrators have the system over a barrel; there will continue to be a backlog of cases until we appoint more judges. That is the way they operate and this is the main reason for the creation of more judges.
Those are not my words; they are taken from the Official Report of 2 November 1994, volume 446, No. 6, columns 1404 and 1405, and were uttered by the Sunday night soundbite man, the Minister of State, Deputy Gay Mitchell. I miss the Sunday night soundbite man who has been very quiet recently. Only that we see him for divisions here one would think he had passed on to a better place.
I would reject the comments — I did not have an opportunity to do so this time last year — that the Department of Justice could ever be described as the most closed Department. I express my appreciation for the tremendous work done at high speed on the 1994 Bill by the same members of the law division of that Department who have worked on the Bill before the House today. Another comment made at that time is as follows:
This is the treaty of Tinakilly...
This is shotgun legislation — the progeny of the one-night-stand at Baldonnel. Its early appearance on the Order Paper owes more to politics than to legislative consideration. So any consideration of this Bill, has to examine not just its legislative content, but its political context as well.
Again, those are not my words; they are taken from the Official Report of 2 November 1994, columns 1420-21 and were uttered by Deputy Gilmore who is now Minister of State. It is interesting to read what people said and to ask where when they are in a different position a little over a year later, the wonderful ideas they had have gone.
This is my first contribution to any Justice debate since I left that Department almost 12 months ago. I have been tempted on a number of occasions to intervene but I always held back on the basis that it would be unfair to my successor to comment on issues of which I had an intimate knowledge. However, I break my silence to speak on this Bill because of the special background to the 1994 Bill. Particular sections of that Bill were the product of the deal worked out between Fianna Fáil and Labour after the famous Baldonnel summit to facilitate the Labour Party in exchange for Harry Whelehan's appointment.
My colleagues, Deputies Cowen and Dempsey, worked long and hard to agree additional proposals for inclusion in the Bill. At Labour's insistence, the then Bill provided for a series of statutory procedures which had to be followed before a person could be appointed to the Bench. In the main, these procedures involved the Presidents of each of the courts having a significant say in who could be nominated to their courts. The 1994 Bill also included the establishment of a new court of appeal which would greatly free up the Supreme Court and enable it to concentrate on giving quality and well researched judgments on significant issues before it.
I am greatly concerned about the statement the Minister made yesterday evening that section 8 which allows the Chief Justice to allocate the business of the court will help to promote "consistent decisions" in the vitally important areas of the law bearing on the Constitution. Will the Minister tell the House what she understands "consistent decisions" to mean. Does she mean she would prefer a different decision from the latest decision on the McKenna case, for example? As we all know, it is dangerous to talk about interference in any way with the courts of the land. If the Government is looking for consistent decisions, in what way will it insist that judges give it those kinds of decisions?
What do we have now from the Minister and the Government? We have a charter for political patronage on a scale hitherto unknown in appointments to the courts. Worse than that, it has taken a year to produce this appalling piece of work to enable this discredited Government fix up its friends. Imagine the howls of the Labour Party in protest and derision if Fianna Fáil in Government had produced this Bill. Labour, of course, perpetuates the fiction that it is somehow above fixing up its pals when the record shows it has no equal in looking after its diminishing band of friends and supporters.
Why has it taken the Minister so long to produce this document and to give it a cloak of respectability as this Government's contribution to judicial and courts reform? Twelve months ago I left a perfectly sensible Bill which could have been amended during its passage through the House. Debate on that Bill commenced on 2 November last. I suspect we would never have seen the Bill before us had my party agreed to a Government proposition some two weeks ago to take one particular section of this Bill in isolation and pass all Stages of it in both Houses of the Oireachtas within a week. When the Government was reminded that the full courts Bill was ready, it was then and only then that the Government agreed to publish it.
I have to wonder aloud whose pal was being fixed up under the particular section involved. I can picture the scene in the Minister's modest office in Stephen's Green. The Minister, the programme manager and the civil servants are present. The Bill is completed and the staff, rightly so, are elated when suddenly a tall, bespectacled gentleman appears as if by magic, shaking his finger at the Minister and warning, "No, no, this will not be published until I say so". A helpless Minister, a rather confused and deeply upset programme manager and shell shocked, tired civil servants are rendered powerless. Yes, I remember it well.
I wish to refer to specific elements of the Bill. Why should the retirement age, for example, be any different from that which applies generally across the public and private sector? I said that over a year ago and I still believe it. I had a preference at that time for 65 but I asked here on 2 November last for Deputies' views. I agree with what Deputy Jim O'Keeffe said in relation to moving towards a common retirement age. That might be the better option to take at this stage but at column 1407, volume 446 of the Official Report, Deputy Gay Mitchell stated: "However, whatever age is allowed — and I certainly would not support going beyond 67 years — there should not be an extension unless for exceptional reasons ...". At column 1431 of the same volume of the Official Report, Deputy Gilmore stated:
The way to make a distinction is to appoint judges for a fixed term. The problem with judicial appointments is not the age at which judges retire, but rather the length of time they sit on the Bench. The principle of seven year terms which is now acceptable for senior appointments in the public service needs to be looked at as it would have the additional advantage of providing for a turnover of judges, allow younger people to sit on the Bench and given that the question of gender balance has been introduced to the debate, might also allow a greater proportion of women to sit on the Bench.
What happened to all those wonderful propositions made by two Deputies who are now in influential positions in the Government, one working in the Taoiseach's Department and the other working particularly closely to his party Leader who has a significant influence on Government policy?
I regret that all the Minister has done with this Bill in 12 months is to remove the independent element from the appointments procedures to replace it with three of her own appointments. I presume — and I am sure the Minister will clarify this when responding to the debate — that "three" means one Fine Gael, one Labour and one Democratic Left appointment.
I have no doubt that in due course these appointments will be trumpeted as the very essence of independence and now the Attorney General is also to be a member of the board. Will the Minister, when responding, explain to the House how the Attorney General can give impartial advice to Cabinet subsequently as to the suitability or otherwise of a particular candidate being recommended by the Minister for Justice for appointment when the same Attorney General will have been party of the selection-rejection process from day one? That is not openness, transparency or accountability. That particular pane of glass which was heralded so much a year ago is either terribly fogged up or we were talking about stained glass, not a clear pane. Perhaps former Fine Gael Deputies or Senators, not to speak of friends of Labour or Democratic Left, will be fixed up. Perhaps there is a former Attorney General on the sideline or is he being lined up for something much bigger to reflect his undoubted experience in advocacy?
It is appropriate that the Minister of State, Deputy Durkan, is present in the Chamber because I want to cite a contribution he made on 2 November 1994. The Minister of State is an expert in quoting what people said in the past and I am delighted he is in the Chamber to hear this. At column 1587, volume 446 of the Official Report, Deputy Durkan stated:
I worry about what will happen in the future. Will people be nominated on the basis of whether they are of the political left, right or centre? If so it will lend itself to endless complications in the future. No matter what happens in the future there will always be the possibility of somebody pointing the finger, in the aftermath of a particular appointment, and suggesting that those who sat on the Bench at a particular time were on one or other side of the political divide. I do not recall that happening before. The Government has set the scene and the agenda for this and it will have to live with it. The Government should apologise to the Judiciary for the damage it has done.
One could read the very same comment today and it would be far more true in these circumstances than it ever was on 2 November 1994. Paper does not refuse ink and the Official Report tells only the truth.
This Government's interpretation of openness, transparency and accountability is that the judicial appointments board will be required to submit to Cabinet all the names of those it has considered and to recommend no fewer than ten as suitable for appointment. In the event of two vacancies arising in the same court, the Minister can ask for any number of recommendations. Therefore, if there were two vacancies in the same court the Minister could, hypothetically, ask them to nominate, say, 100, 200 or 300 people. I am sure that among all the Fine Gaelers involved in the legal profession around the country there might be several hundred quite suitable for appointment and there would be a never ending list of people who could benefit from political patronage.
Whom does the Government think it is fooling? A cynic might say the Minister's hand is not being exactly stayed. The Minister wants to have her cake and eat it while pretending she is lifting the veils of secrecy and mystery surrounding a vital area of Irish society. To make matters worse, there are those in the so-called liberal media whom she counts among her friends who will gravely not acquiescence in her direction. I am thinking of the paragons and guarantors of everything that is good for society.
The Minister had the barefaced cheek to state in the press statement that her proposals were more transparent. Perhaps she would be good enough to tell the House about the Government's appointments to the Bench since it took office. She might also mention the names of the successful candidates. Is my memory failing me or did I read somewhere that a couple of former high profile Fine Gael Party activists are now on the Bench? I wish them well and I am sure they are admirably qualified for the difficult and hazardous work they have undertaken. However, one can only imagine the shouts of "cronyism" or "cosy cartel" the Labour Party would embark upon if it was in Opposition and these appointments were made by either of the two major political parties. The party of high standards my eyeball, it is more like the party of expediency and manipulation. Those two virtues will reap a very large whirlwind. I know the Minister of State, Deputy Durkan, is looking forward as much as I am to the reaping of that whirlwind. Thank God for the innate sense of the electorate who do not suffer the myopia of some of the Government's friends in positions of influence. The justice of democracy is that a vote in Dublin 4 is worth no more than a vote in Carraroe.
During Second Stage debates on such Bills one obviously has to make a general statement and, with the exception of the provisions on the retirement age, the appointments boards and other particular concerns, there is very little opportunity to refer to individual aspects. Nevertheless there is a number of provisions worth referring to.
I have great concerns about the proposal to make the Attorney General a member of the selection board as it will not be possible when the appointment comes to Government for him to be judge and jury on the candidates. In the case of appointments to local authorities the county manager or county secretary who makes the ultimate recommendation on the appointment will not have been a member of the original selection board; a member of another local authority will be on it. I laughed when I read the Minister's statement that: "Requiring the appointments board to recommend only three to five names as proposed in the 1994 Bill would restrict unduly the Government's discretion in the matter of judicial appointments". I presume this refers to political discretion and that she and the Government felt there was a great political restriction on them in that they were not allowed to have more than five nominees recommended to them.
We should acknowledge that the present system for selecting persons for appointment to judicial office has served us well. We have been very fortunate to have a Judiciary which is respected for its integrity, independence and fairness. However, this does not mean that the system for appointing judges is immune from criticism. It may be inevitable that the system is open to criticism as up to now the procedure has been reserved exclusively for Government and there have been no clear accompanying statutory or other guidelines on how the system should operate.
I welcome the Bill which I am delighted to say my party forced out of the Government when it refused to take the selective provision which it wanted to take very quickly. I look forward to seeing the amendments put down by Fianna Fáil. I am interested in seeing how those Deputies in positions of importance on the other side of the House who recommended such amendments in Opposition will vote on Committee Stage.