Dáil Éireann debate -
Wednesday, 26 Oct 2016

Vol. 926 No. 2

Judicial Appointments Commission Bill 2016: Second Stage [Private Members]

Deputy Jim O'Callaghan

I move: "That the Bill be now read a Second Time."

One of the fundamental requirements in a functioning democracy is an independent and effective judiciary. If we want to assess whether a country has a functioning democracy, the first thing we need to do is to identify whether it has an independent judiciary that can stand up to and stop actions of the parliament and-or the government which are unlawful or which infringe the rights of citizens. If a country does not have such a judiciary, it cannot be described as a real democracy. In totalitarian countries the courts and the judiciary become part of the ruling regime of the state. We saw how judges such as Roland Freisler in Nazi Germany and Andrei Vyshinsky in Stalin's Russia controlled courts that were nothing more than an appendage of the ruling regime in these countries. At no stage do courts that are controlled and subservient to a regime ever stand up to it; at no stage do they ever deviate from government policy.

When the Constitution was enacted in 1937, at a time when fascism was spreading throughout Europe, it established, in Articles 34 to 37, inclusive, an independent courts system. The operation of that system was obviously reflective of the system that had operated prior to independence, but, nonetheless, it finally and definitively established independent courts in the country. The Constitution expressly provides that justice is to be administered by judges appointed under it. We talk a lot about justice in this House and public commentary. It is important that we try to recognise what it is that justice seeks to achieve. It seeks to correct wrongs done; it seeks to uphold constitutional and legal rights; it seeks to provide punishment and-or compensation for those who have suffered through the wrongs of others; and it seeks to deter the State from unlawfully interfering in the lives of people.

The Constitution specifies in Article 35 that judges are to be appointed by the President. This is done after nominations are made by the Government. The Constitution also specifies that judges must take an oath on assuming office. Since enactment of the Constitution, hundreds of persons have been appointed as judges by the President. They have been appointed based on nominations made by the Government of the day. It is important to note that we had and have in this country an independent Judiciary, notwithstanding the fact that its members have been nominated by the Government. There are many examples in our history of judges and courts dealing a serious blow to the plans of the Executive because they infringed the rights of citizens or were otherwise unlawful. For example, we recall that, in 1986, the ratification of the Single European Act was stopped because the Judiciary and the courts stated it needed to be put to the people. There are hundreds of other examples where Ministers have been given what the Taoiseach would refer to as a "wallop" by the courts and long may that continue. Nonetheless, the manner in which judges have been nominated by the Government has been shrouded in mystery and the people do not know the basis on which individuals are nominated for appointment to such an important office. We know how professors in universities and the director general of RTE are appointed; therefore, it is extremely important that the public be aware of the manner in which individuals are appointed to the Judiciary. In order to ensure judicial independence will be strengthened, it is important that the public be aware of the characteristics the State seeks in persons nominated for appointment to the Bench. Although the country has been well served by the Judiciary, that has been despite, not because, of the judicial appointments process.

If we want to enhance and improve our democracy, it is important that the public be satisfied that persons nominated for appointment to judicial office are, in fact, the most suitable persons who have applied. It is the case that individuals with party political affiliations have been appointed to be members of the Judiciary. Many of that group were appointed because of these affiliations and some were appointed despite them. Nonetheless, the fact that they had political affiliations did not prevent them from exercising their judicial functions in an independent way. There must also, however, be a group of people who are not as identifiable and who deserved and wanted to be made judges but who never had that opportunity. They probably never got it because they were not connected with the Government of the day. If we had a system based solely on merit, many of them might have been appointed. It is important to point out that most judges were appointed on the basis that the respective Government of the day believed or had been advised the people it was appointing were the most suitable to fill the available posts.

The purpose of the Bill is to try to improve the process by which members of the Judiciary are nominated and appointed. I think every Member of the House will agree that the abiding principle must be that nomination and appointment to judicial office should be based solely on merit. People should not be appointed because of their party-political or ideological allegiance. They should be nominated because the Government believes they will make excellent judges who will be able to administer justice in the State. In order for Members to assess whether they wish to support the Bill, it is important that I first outline the current situation in the making of judicial appointments. If there is a vacancy in a court, an advertisement is placed by the Judicial Appointments Advisory Board, JAAB, that was established in 1995. The board simply gives advice to the Government on judicial appointments. Its job is to give the names of seven people to the Government for each vacancy, although it does not rank the individuals in terms of whom it believes is the best. The Government must first consider these names and, if it decides not to select any of the individuals on the list submitted, it must publish in Iris Oifigiúil the fact the person chosen was not recommended by the JAAB.

The system in place does not identify the best candidates for appointment. It is difficult for politicians or persons who are not acquainted with the courts to know what are the characteristics of a good judge. A good judge is someone who applies the law in a fair way. It is not his or her job to become a social engineer or an unelected politician who seeks to decide cases based on his or her own preferences, whether political or social. The job of a judge is to adjudicate on facts and apply the law in a correct manner.

In Ireland we have had a creative Judiciary that, since 1965, has recognised that under the Constitution citizens enjoy unenumerated rights, that is, rights not written down in it. The Judiciary has enumerated these rights and extracted them from many decisions of the superior courts.

The rights of Irish citizens and people living here have been improved because judges have extracted and enumerated those rights. The importance of appointing the right people to the Bench is evident from the fact that the Judiciary plays such an important role in enumerating the rights of Irish citizens.

The qualities and characteristics that the State should seek in judges are integrity, independence, intellectual skill, good temperament, common sense, sound judgment, impartiality, objectivity, fairness, equanimity, composure, sensibility, cultural sensitivity, courtesy, consideration, an ability to communicate well, a strong work ethic, efficiency, organisational skills and an ability to command respect. They must also have a very good understanding of the law. It must be the case that judges who are appointed to apply and interpret the law understand the law. For that reason, we need good lawyers to apply to become judges. Not every good lawyer will make a good judge, but one cannot be a good judge unless one is a good lawyer. For many years we have appointed judges who fulfil many of these characteristics but it is essential that we seek to identify the best candidates for appointment so that they can be selected.

The general purpose of the legislation is to set up a judicial appointments commission. Its job will be to recommend and rank in order of preference three persons for appointment to each vacant judicial post. Constitutionally, the entitlement to nominate still remains with the Government so it is necessary to ensure that any new body that is established conforms with that constitutional requirement. The proposals contained within this legislation do conform with the requirements of the Constitution.

It is important that it is the Government that is ultimately responsible for nominating individuals for appointment by the President. Otherwise we will hand over this crucial responsibility to an unelected body that is not accountable to the people. What we need is a body that makes recommendations, and those recommendations must be taken seriously and considered adequately by the Government.

If under this legislation the Government decides not to nominate one of the three individuals recommended by the judicial appointments commission, it must provide a reasoned explanation on the Minister's website. I am conscious that, at present, the Government has indicated that it is its preference not to nominate for appointment any new judges until new legislation is in place. The Government should be careful about that proposed approach. The individuals who will be affected by a delay in appointing judges to the Bench are not the lawyers who are seeking appointment or the politicians but the individuals who are waiting to get their cases heard. Most people stay away from the courts. Those who go to court probably go only once or twice in their lives, and it is an extremely stressful occasion for them. People are entitled to know when their cases will be heard rather than having to go to the court only to be told there is no judge available. The Government, notwithstanding the fact that it is anxious to introduce legislation in this area, must continue its constitutional job to nominate individuals to the Bench.

I remind the Government that, in November 2010, former Senator Pearse Doherty, who is now a Deputy in this House, took a case challenging the decision by the then Government not to have a by-election. He said in making his case that the Government was failing to comply with the constitutional requirement that sought to ensure constituencies had full representation. The courts agreed with him. The court said one cannot delay unreasonably in holding a by-election. Similarly, if the current Government continues to delay in appointing individuals to vacant positions on the Bench, it will be threatening the requirement of justice, as provided for in Article 34 of the Constitution.

I am glad to see the Minister for Transport, Tourism and Sport, Deputy Shane Ross, is present. He has a considerable interest in this topic. I may be wrong in my assessment of him and, if I am, I apologise. My assessment of his concern in respect of this issue is that what is occurring may be like what is occurring with the boards of Irish public companies in that individuals are being appointed to the Bench because they are friendly with individuals in the Government or elsewhere. That may have been a problem in the past but it is not the problem at present. The current problem in respect of appointments to the superior courts is that not enough people are applying for the positions. This is partly attributable to economic issues, such as the fact that one must now be 20 years on the Bench before one can get a pension. Thus, people have to apply by the age of 50, which deters many. There was also a constitutional amendment that removed the guarantee judges had in respect of their salary. That probably affected the number of people who wish to apply. This is an extremely important issue and I welcome the fact that there is such interest in it among the members of the Government. That said, it is important that we seek to get it right.

I shall move on to the provisions of the Bill. The Bill sets out in Part 2 the terms under which the judicial appointments commission shall be established. It sets out the functions of the commission. One of the important functions will be to invite individuals to apply. We live in a small country and it is important that a body such as this seeks to identify and headhunt people it believes will be good judges.

We set out the membership of the commission in section 7. There are 12 persons on the commission I have proposed. Of those 12, only five will be judicial members. Seven will be non-judicial members. It is important that the individuals recommending persons for appointment have an understanding of how courts operate. If we wanted to appoint the editor of a newspaper, it would be extremely important for the interview panel to contain individuals who know how newspapers operate. Similarly, it is vital that we have in the recommending process and among the membership of the commission individuals from the courts who know what is required of a judge and who know better than most what is required of a person to be appointed as a judge and whether he or she would be suitable. The five judicial members are the Chief Justice and the presidents of the four other courts.

I propose seven non-judicial members. It is difficult to identify persons who should be on such an important body. I am happy to accept any proposals that come from elsewhere in the House. We need to realise, however, that no matter what regime operates in the world, people who are appointed as judges have to be lawyers. I have never heard it proposed that judges not be lawyers. We have a system in Ireland where some cases are heard by juries. Juries determine questions of fact but most cases are determined by judges sitting on their own. Not only must they determine fact but they must also have a good understanding of the law. For that reason, there should be representation from the Bar Council, the Law Society and the Free Legal Advice Centres, which represent another vital area of the legal profession. There should be members from the Citizens Information Board, an tÚdarás um Ard-Oideachas, the Competition and Consumer Protection Commission and the Irish Human Rights and Equality Commission. I am open to proposals in respect of the make-up of the commission.

The rest of Part 2 deals with the disqualification of members of the commission and how long they can serve. Part 3 deals with the judicial appointments process. What will happen under this scheme is that if there is a vacancy on a court, the Minister will request the commission to recommend three persons and rank them in order of preference.

Under section 13, the commission will be able to consult the court in order to assess what competencies are required. One might find that a court needs a judge to be recruited who is an expert on family law or criminal law, or a judge who is proficient in the Irish language. That is an important requirement at the outset.

Section 15 sets out the criteria for a recommendation for appointment. This is a requirement imposed on us not simply because it is common sense but also because there was a declaration of the European Networks of Councils for the Judiciary, signed in Dublin in May 2012, calling for a clearly defined and published set of selection competencies against which candidates for appointment to judicial office should be assessed. That is what we have done here. We have set out the characteristics and competencies. I recited them earlier. It is important that they be contained within legislation so the public can see the characteristics required of somebody being appointed to such an important job.

Section 17 sets out the requirements concerning a recommendation by the commission. The commission may interview or seek individuals but ultimately it shall submit to the Minister the names of three persons whom it recommends for nomination and it shall rank those three persons in order of its preference.

This legislation also provides that anyone applying for judicial office must give an undertaking to engage in training if required to do so by the president of his or her court. This is an important requirement because sometimes judges require training in areas of the law which are new to them.

It is also important in section 18 that the deliberations of this new statutory body remain confidential. People will not apply if they think it will be publicly disclosed that they applied and were rejected. Section 22 deals with nomination to judicial office. After the process is completed by the judicial appointments commission, it should give the Minister the names of three individuals, ranked 1, 2 and 3. The names then come to Cabinet and the Government makes a decision. The Government, if it wants to, can pick No. 3 or No. 2 and does not have to provide any explanation. This is important in order to ensure it remains constitutional. However, if the Government decides to pick none of the three, it must publish on the Minister's website a reasoned decision for not having done so.

The other Parts of the Bill relate to recommendations by the commission for nomination to the important positions of Chief Justice and presidents of the Court of Appeal, the High Court, the Circuit Court and the District Court. The basis upon which Governments decide to nominate individuals to, for instance, the position of Chief Justice is one of the great mysteries of our time. The Bill sets out to require the commission to provide the Government with a recommendation in respect of individuals who it believes would be suitable for appointment to these very important positions.

A number of other minor issues are dealt with at the end of the legislation, with which I will deal briefly. Before doing so, I should say that this legislation would also be of use for appointments to the European Court of Human Rights and the two courts established under the Treaty on European Union. Part 4 proposes a change to the law that would require that individuals, in order for them to be appointed as judges of the superior courts, have at least 15 years' standing as a lawyer. At present they only require 12 years' standing. Finally, there is a provision that would increase the retirement age of District Court judges from 65 years to 70 years. At present District Court judges must retire at 65 but they are allowed to seek a renewal on a yearly basis. That should be brought in line with other judicial positions, and their retirement age should be 70.

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I thank Deputy Jim O'Callaghan for preparing and tabling the Judicial Appointments Commission Bill 2016 and for providing an opportunity for the House to debate this topic today. Reform of the judicial appointments process is a priority for me and for the Government and is an area which is the subject of intensive work at present. The current programme for Government contains commitments to reform this system, in particular by setting up a new judicial appointments commission. I will update the House on the status of those reforms later in my contribution.

I acknowledge that Deputy O'Callaghan's Bill represents a very useful framework for debate on the reforms necessary to update and improve the approach we take to judicial appointments. He introduces it at a point at which my Department has concluded a wide-ranging and in-depth review of all the issues surrounding the topic, a review which has already been well signalled to the House.

Review of the law and procedures in this area needed comprehensive research and consultation with the interested and affected people and groups. This is particularly so given the complexity of existing law in the area, the extensive range of issues involved and, as the Deputy said, the fundamental importance of judicial appointments to public policy and to our democracy and its growth. My Department has carried out that research and has conducted the consultation to which I have referred.

We embarked on a major review of the judicial appointments process and sought submissions in open consultations in 2014 as a first step. It is vital if reforms applicable to this area are to be meaningful and effective that they emerge from a genuine consultative process, public debate and debates in this House. However, in considering the Private Members' proposals before the House today, I intend to outline the clear principles of reform that underpin the legislative scheme I propose to advance over the coming short number of weeks.

In all this, I must be very conscious of the fact that the Judiciary and the courts, as key organs of the justice system, are constitutionally independent in their operation. This is a very basic principle within which we continue our work. International best standards require this as the independence of the Judiciary is vital for its role in safeguarding fundamental freedoms and rights.

I want to be clear about one thing before continuing. We are most fortunate in having in Ireland a strong, independent, impartial and well-respected Judiciary. Let us create no impression that we are trying to fix some fundamental failings in the judicial system. Any such inference simply could not stand up. A central tenet of the review is the need to ensure and protect the principle of judicial independence and I do not think anyone in this House would argue with that, as enshrined in Article 35.2 of the Constitution. The State has been very well served by an independent Judiciary.

However, the focus is very much on the manner in which the selection, recommendation and appointment arrangements can be improved in a new statutory framework. The objective of this is to increase transparency, match best international practice and ensure that Ireland leads out on the guarantee of a highly effective and impartial judicial appointments system.

I will not go into the history of the Courts and Court Officers Act 1995, suffice to say it has been in place for 20 years. In many respects, it led the way internationally at the time, but I have no doubt that it needs fresh appraisal at this point. Reforms and improvements can be made to deliver a more transparent and accountable system while looking after the independence of our Judiciary. Deputies will be fully aware that under the Constitution, judges are appointed by the President on the advice of the Government. It must always be an act of the Executive, therefore, under the Constitution, to advise the President on the matter. This is all set out in the Courts and Court Officers Act 1995, which established the Judicial Appointments Advisory Board. The board must recommend a minimum of seven candidates for each vacancy and submit to the Minister the name of each person who has applied to the board. I do not have the time to go into all the other details but I think most Deputies contributing tonight will be familiar with the process.

The consultation process undertaken by the last Government sought to be as inclusive as possible, engaging the broader public and interested stakeholders. The following matters were highlighted when we were engaged in that consultation: the existing provisions for eligibility for appointment; the need to ensure and protect the principle of judicial independence; the promotion of equality and diversity; and the role of the advisory board, its membership and its procedures. Clearly, work can be done in this regard, and we received many very thoughtful and challenging submissions.

The programme for Government commitments are the basis for the approach we will take to the development of our legislation. The Programme for a Partnership Government responds to the crucial matters of the recommendations procedure and the composition of the board. Specifically, the programme for Government states, "We will reduce the number of suitable candidates proposed ... for each vacancy to the lowest number advised as constitutionally and legally permissible by the Attorney General, but in any event not more than three candidates to be shortlisted ... for any vacancy." People will be familiar with the other points we made about a reduction in membership; an independent chairperson selected by the Public Appointments Service and approved by an Oireachtas committee; and a lay majority including independent people with specialist qualifications. Suitable provisions to take account of these priority matters are being finalised and are the subject of the view and advices of the Attorney General on key constitutional and law matters, and I and my Cabinet colleagues, including the Minister for Transport, Tourism and Sport, Deputy Ross, are working intensively on these issues. These reforms will be set out in a Government Bill which will reflect the programme for Government commitments, deal with a number of other areas and build on the 2014 consultations.

Deputy O'Callaghan has devised a progressive and interesting basis for the consideration of reform of the judicial appointments system. He has already outlined the various competencies he believes are necessary and which judicial appointments he feels should be included in the work of a new commission, including Chief Justice and court presidents, where he seeks to confine selection only to judges of the relevant courts. As he said, he has included the European Courts as well. He talked about the increase in the standard practice rule from 12 to 15 years. He does not make any provision in respect of the direct eligibility of District Court judges for consideration for appointments as High Court judges.

I would like to examine further the implications of the Deputy's Bill.

As Deputies are aware, I am currently finalising a general scheme of a Bill to bring to Government. The intention of that is to replace the Judicial Appointments Advisory Board with a judicial appointments commission which will have a dual role of making recommendations to Government for appointments and making longer term contributions to the development of the system of judicial appointments. For example, it will research international practice, keep selection processes under review and make recommendations to Government. The general scheme also proposes to reduce the number of recommendations coming from the commission to three as opposed to the minimum of seven forwarded by the JAAB under the Courts and Court Officers Act 1995. I have been advised that under the Constitution, the Government must have a choice and a minimum of three recommendations would be adequate to provide that choice.

The general scheme also proposes to change the composition of the new body - the commission - to increase lay membership and have a lay chairperson no longer appointed by the Minister, but by open appointment. The general scheme also proposes to open up appointments at every level and in every relevant court to the new process; make District Court judges eligible for appointment to the High Court; consolidate the existing and mostly un-codified provisions on qualifications and eligibility; and repeal previous enactments.

While there is a certain amount of common ground between the two Bills, there are significant differences and further detailed analysis of the overall effect of reforms in this area is required. This can be done without any significant delay and, on that basis, the Government has decided not to oppose the Deputy's Bill. The Government intends to bring forward as a priority a Government Bill to reflect the outcome of the consultation process, and the common ground in this Private Members' Bill and the programme for Government commitments.

I again take the opportunity to thank the Deputy for his very constructive input to the process and to the formulation of policy in this area. It is a priority matter for the Government and I look forward to bringing the Bill to the House at the earliest opportunity.

Deputy Jonathan O'Brien

I acknowledge that the Tánaiste advised me that she may have to leave before I conclude.

I commend Deputy O'Callaghan on the publication of his Bill, which is comprehensive and well-drafted legislation. It is clear that considerable thought went into it. This is an area where we need to be very careful because it is necessary to work around constitutional limitations in the appointment of judges.

The Tánaiste has indicated her intention to publish the general scheme of a Bill at the earliest possible opportunity. Unfortunately, we have heard that on numerous occasions and we still do not have an indication as to when the general scheme will be published. Deputy O'Callaghan has pointed out the contradiction that is facing the Government. On the one hand it has indicated there will be no further judicial appointments until the new legislation is in place. However, owing to failure to make appointments, even the Court of Appeal is estimated to have a backlog of about 1,800 cases, which is not acceptable and cannot be allowed to continue. The Government needs either to make a decision to publish the legislation as quickly as possible, let us debate it and pass it, or to make a decision to recommence the appointment of judges.

Sinn Féin has a long-standing position in this area. In 2003 in the Six Counties a criminal justice review document dealt with the appointment of judges, which led to the Northern Ireland Judicial Appointments Commission being given enhanced powers not only in the appointment but also in the removal of members of the Judiciary in the North. That is something we have long supported and giving those enhanced powers to the commission within the Six Counties was a key part of the negotiations with the DUP in 2008.

There are similarities between what the Government proposes to introduce as outlined in the programme for Government - the Tánaiste has outlined some of those issues - and some of the provisions in Deputy O'Callaghan's Private Members' Bill. For me and my party it is not just about the appointment process. There are broader matters we need to consider. There are very limited means of investigation into the conduct of members of the Judiciary where allegations of wrongdoing have been made. Very few constitutional provisions govern such investigations. We should look at that area during the passage of this Bill or if that is superseded by the publication of a Government Bill, I hope it will be contained in the Government's proposed legislation.

I understand the Government is considering introducing a code of conduct as part of its general scheme. I believe that came up in the consultation process undertaken in 2014. If that is the case I would welcome it. A code of conduct needs to be put in place. In addition to a code of conduct, we also need a mechanism to remove judges and we need further discussion on the issue. It is not contained within Deputy O'Callaghan's Bill which we are debating tonight and I have not seen it in the programme for Government.

The programme for Government is very clear in what it proposes. It proposes to get rid of the JAAB and introduce a judicial appointments commission. It refers to the makeup of that commission and proposes reducing the number of persons being recommended to Government for consideration. That is all well and good and similar to what Deputy O'Callaghan has proposed. However, again there is no mention of the process for removing judges. We need to have a serious look at that issue. If it is not something we can do during the passage of this Bill, I hope the Government can deal with it when publishing its Bill.

We could also have further discussion on the makeup of the commission. I do not believe the Government has indicated the number of members of the commission. It indicated it would have a lay majority and a lay chairperson. The Bill before us tonight also proposes a lay majority. It does not go so far as to propose a lay chairperson but nor does it rule out that possibility from my reading of Deputy O'Callaghan's Bill.

Deputy O'Callaghan's Bill proposes putting into legislation the nominating bodies for those laypersons. I do not know if it is correct to define it in legislation, but I agree that the nominating bodies need to have the expertise to know what is needed for any judge proposed for appointment. We should have further discussion on that. Deputy O'Callaghan has said he is open to that discussion as the Bill progresses.

Section 8 deals with the terms of office of members of the commission and section 9 deals with the disqualification and removal of members of the commission. I again return to the point that if we are to have comprehensive legislation dealing with judicial appointments, I would hope it would include a code of conduct and the removal of judges.

There is much that is of merit in having elements of Deputy O'Callaghan's Bill and some of the statements from the programme for Government, which will hopefully be reflected in the Government's Bill. I believe this is an issue on which we can find consensus across the Chamber. That is sometimes very rare. On this issue, there is a general consensus that this system needs to be overhauled, that there needs to be a lay majority on any commission and consensus on the make-up of the commission and on some of the powers.

The only other area that I believe we need to look at is ongoing training for members of the Judiciary. Some reference is made to training for people who are put forward for appointment in Deputy O'Callaghan's Bill, but as with any other profession, if one is in a position for 20 or 30 years, one has to have that continual professional development. It is my understanding, though I am no expert on this, that there is no requirement on judges to engage in any continuous professional development. That is something that they should be engaging in. Whether that can be put into any possible legislation remains to be seen, but it is an area we would like to explore further on Committee Stage if we get the opportunity to discuss Deputy O'Callaghan's Bill. As I said, continuous professional development for judges is as critical as continuous professional development for teachers, social workers or in any other group in society. Given the important role played by members of the Judiciary, it is crazy to have a situation in which they are not obliged to engage in that continuous professional development.

We will be supporting the passage of the Bill to Committee Stage. My suspicion is that it is going to be overtaken by the publication of a Government Bill, which I would hope happens sooner rather than later. The Minister for Transport, Tourism and Sport, Deputy Ross, has a particular interest in this and I do not think it is any secret that there are probably differing opinions within Government on how best to proceed. I hope that those differing opinions can be resolved in the very near future. We cannot have a situation in which we are saying on one hand that we are not going to appoint any further judges until we actually resolve this, and then have no indication of when this is going to be resolved. It is not sustainable and something has to give.

I commend Deputy O'Callaghan. We will be supporting the passage of the Bill to Committee Stage. If we do get the opportunity to discuss it on Committee Stage, I acknowledge the Deputy's willingness to look at the area of lay representation and how we nominate those people. We will also be looking at tabling some amendments around the introduction of a code of conduct and the possibility of giving the commission extended powers to look at the removal of judges, or at least the recommendation to remove judges. Of course, with any recommendation to remove a member of the Judiciary, there has to be a fair hearing for that member and there has to be an appeal mechanism put in place. Again, that is probably something that we need to have a look at as the Bill progresses.

Deputy Willie Penrose

I warmly welcome this Bill and I have no hesitation in offering Labour Party support for its passage into law. I commend my colleague, Deputy O'Callaghan, for doing a fine job in publishing this comprehensive Bill. It is sensible, constructive and balanced. The Government has no credible excuse to delay its implementation. It can clearly be improved upon and various amendments from all parties could be incorporated on Committee Stage. Therefore, the Government should get on with it.

In that respect, it contrasts sharply with the proposals published by the then Deputy and now Minister, Deputy Shane Ross, in 2013. I am glad he is here because I have a few words to say to him. The Minister wanted a judicial appointments council to recommend suitably qualified candidates on merit. He wanted a joint committee of the Houses of the Oireachtas to consider the recommendations and then nominate judges for appointment by the President. However, bizarrely, he wanted our Constitution amended to stipulate that no judge or practicing lawyer could have any role at all in assessing the qualifications of the candidates or in recommending their suitability. He said that the Constitution should also be amended to require that the Oireachtas joint committee that made these nominations had to have a permanent Opposition majority. In other words, according to the Minister, Deputy Ross, if one wants to have a role in selecting the judges, one should either know nothing at all about either the law or lawyers, or one should lose the general election and be in Opposition. This is daftness on stilts. It is so manifestly absurd that I do not understand how its author can be taken seriously as either a political commentator or a practicing politician, let alone a Government Minister. The Minister's gadfly pesterings clearly entertained a readership in the leafy suburbs, but he has contributed nothing serious to this debate. In Opposition he was a noisy distraction. In Government he has become an empty space.

Deputy Mick Barry

Wow.

Deputy Willie Penrose

The Minister's only remaining contribution, and I am astounded by it, is a threat to personally veto all future judicial appointments until he gets his own way. That is a disgrace. He regards the need to fill his political trophy cabinet as taking precedence over the constitutional principle of collective Cabinet Government responsibility. He seems to think nothing about standing in the way of the Government discharging its basic constitutional functions as and when required.

Does the Minister know about the Court of Appeal position as it stands? It will get worse if his tantrumic posturing is given any attention. Some 660 criminal cases were inherited from the old court of criminal appeal. All cases that were ready for hearing have by now been heard. The remainder have been given a date for hearing before the end of the year. That is on the criminal side. However, on the civil side, the new court is overwhelmed by appeals, not just appeals against final judgments in decided cases, but appeals against summary judgments, discovery orders and procedural orders of all sorts and sizes. There are 600 new civil appeals each year, and the court has capacity to deal with about 350 of them. What does that mean? It leaves a shortfall of 250 cases a year. In addition, the court inherited a backlog of cases numbering 1,082 that were transferred to it from the Supreme Court list. There are still more than 700 of these cases to be heard. So, when one adds the arrears that accumulate annually to the backlog of old cases, it is clear that the new court cannot ever clear its list. That was referred to recently by an eminent academic from Maynooth. The old maxim that justice delayed is justice denied is clearly relevant in this situation. I am sure that the Minister, Deputy Ross, does not want anyone to be denied justice. This is not the fault of the six judges on the civil side of the Court of Appeal under the presidency of Mr. Justice Seán Ryan. No matter how hard they work, and they are working extremely hard, their backlog will continue to increase. The solution is obvious and is staring this Government in the face. It needs to appoint new judges to the Court of Appeal. It does not need any kind of grandstanding or anything else. It needs them to be appointed. The people need them to be appointed. The people who have the cases need them to be appointed, not anybody else. I am a barrister but I have no interest in being before the courts. However, I know as a practicing barrister what is happening and I think I can give an opinion on it. This is no time for ifs, buts or maybes. It is no time for showboating or histrionics. We in the Labour Party demand that the Government discharges its constitutional duty and deals with this accumulating crisis in the administration of justice, by making new appointments immediately to the Court of Appeal. I know myself that there are at least four to six judges required immediately.

Turning back to the sanity of the Bill before us, it would establish a judicial appointments commission to recommend and rank three individuals for each judicial vacancy based on merit. That recommendations must be merit-based and that the number of recommendations should be reduced from seven to three are proposals which are universally accepted. I have no problem with these provisions and am happy to accept them. They are endorsed by the judicial appointments review committee, established by the judges themselves, and by everybody else. We are all on board. Therefore why the delay?

The Bill also proposes that if the Government fails to nominate someone from that recommended list, it must publish a reasoned written decision for not doing so. This is stronger than the current provision and I agree with it. The Bill would repeal Part IV of the Courts and Court Officers Act 1995, under which the Judicial Appointments Advisory Board advises the Government. That arrangement was part of an emergency deal struck between Labour and Fianna Fáil, arising from the Harry Whelehan controversy. In the circumstances in which it arose, it is perhaps not surprising that the package was not entirely thought through. I accept that. Defects in the current regime include the requirements that the board must make at least seven recommendations for each vacancy and that the recommendations are not listed in order of preference.

However, while the Act seems to give the board discretion to choose between candidates where there are more than seven, in practice the board does not operate the Act in this way. Instead of seven names being forwarded, all applicants who are not considered unsuitable have their names sent forward to Government. This means that in some cases dozens of names go to Government for each vacancy.

Deputy O'Callaghan's Bill provides for a commission with a well thought out mixture of competencies. As well as the Chief Justice and the presidents of the Court of Appeal, High Court, Circuit Court and District Court, there would be nominees of the Citizens Information Board, the Higher Education Authority, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission, the Free Legal Advice Centres, the Law Society and the Bar Council. There is also provision for gender balance on the commission. I am pleased to see the Bill lists as qualities needed in a judge integrity, independence and intellectual skills, as well a sound temperament and common sense, which are most important attributes, composure, courtesy, consideration and communication skills. The commission should also have regard to the importance of promoting gender and cultural diversity, and of ensuring a sufficient numbers of judges with proficiency in the Irish language.

There are one or two issues that I hope we have an opportunity to consider on Committee Stage. One arises from the fact that a judicial career is embarked upon after a career in practice. I fully support this. I believe it is a feature which enhances judicial independence. Our judges are not schooled before appointment.

The State cannot and should not compete against the market in terms of the remuneration it offers to judges, but the State can compete in terms of its pension offering. The salary package for judges should make it an attractive option for practitioners to consider well into their 50s and even early 60s. The recent changes we made to that offering were a mistake, particularly since the savings made, in the overall context, were insignificant. If agreed on Committee Stage, perhaps the Bill could become a vehicle for reversing those changes, particularly with regard to pensions. The judges recommended that an advisory board or commission should be empowered not just to rank candidates but to designate any particular candidate as outstanding. They also said it should be empowered to inform the Government when it considers there are not sufficient candidates of sufficient quality. I would be interested to hear Deputy O'Callaghan's view on these two recommendations.

I see no need to wait any longer for a Government alternative to the Bill. We have more than just the bones of a workable solution here. With a bit more work on Committee Stage, incorporating what Deputy O'Brien and other contributors, including those from the Government have said, we can have a new system up and running within a matter of weeks rather than months. Therefore, I have no hesitation in joining other Members in commending the Bill to the Dáil. I call upon the Minister to expedite the introduction of a judicial conduct Bill, which I have called for on numerous occasions and which the Chief Justice has also sought in recent speeches. The Bill before us should also be expedited to ensure two important Bills are passed in the House, which would make a massive contribution to the administration of justice in the country.

Deputy Mick Barry

I strongly suspect there may be more nonsense spoken on this subject than perhaps any other subject that is debated in Irish society. Much of it relates to the so-called independence of the Judiciary. I will start by making a couple of points on this. To illustrate the point, I will take a couple of quotes from members of the Judiciary. In 2012, when he was the head of the Association of Judges of Ireland, Mr. Justice Peter Kelly said appointments to the Supreme Court were "purely political". In the same year, Judge Michael Pattwell said his appointment was political, and expressed the view that all appointments to the Bench by the previous Fine Gael and Labour Party Government were of judges with Fine Gael or Labour Party connections. In 2011, the Irish Independent pointed out that of the 168 judges on the Bench of the State, 56, exactly one third, had what the newspaper described as "personal or political connections to political parties".

It is not just their connection with political parties which makes members of the Judiciary part of the ruling elite in this country. It is also the salaries and the lifestyle they lead. In 2010, the European Commission for the Efficiency of Justice completed a survey of judges' pay in 46 European countries. It found that in the Irish State judges' pay was among the highest of any of the 46 countries at three times the European average. It was not three times the lowest rate, it was three times the European average. I did a check before I came in here, and I stand to be corrected on these figures, but the latest figures I was able to get, which may be one or two years old and may underestimate the position, is that a Supreme Court justice would receive a salary of €197,272 per annum and a District Court judge would receive €122,512 per annum.

The social position of judges in society was illustrated rather well by an occurrence in the High Court in 2012, when a case was taken by a small construction company against Cement Roadstone Holdings, CRH. The judge presiding over the case, Mr. Justice John Cooke, had to withdraw from the case when it was pointed out he had shares in CRH. It was not €1,000 worth of shares or €2,000 worth of shares, but €135,000 worth of shares in the company. He had not ruled himself out of the case, which had been going on for a year or two, because he was not aware of the fact he was the owner of those shares, which says something in and of itself. It is not just the political connections of the judges, it is their social class, their wealth and their income. This is in a society which is more divided now than ever before on grounds of income and social class, which is part of the legacy of the Taoiseach, Deputy Enda Kenny.

The Central Statistics Office tells us the wealthiest 10% of households in the State now own more than half of household wealth at 53.8%, but the bottom 20% are in negative territory and owe more than they own. For people who find themselves at the top of the social pyramid, their psychology, class outlook and class bias are built in. How can it be otherwise? It is reflected through members of the Judiciary and is shown very clearly in their attitude to social protest. In 2003, more than 20 men and women from working class communities were imprisoned for campaigning against bin charges in the State. In 2005, five brave men, the Rossport five, were imprisoned. Injunctions against workers on strike, trade unions and trade unionists are a regular occurrence. We had this with Marine Terminals in the docks in 2009, the Greyhound dispute in 2014, and with Aer Lingus in 2014, with a threat to bankrupt the largest union in the state, SIPTU, with an injunction.

There is also a bias against the left in the Judiciary. I will give examples regarding my own party. In July 2015, one of our councillors, Councillor Mick Murphy, applied for a permit from the local Garda chief superintendent to collect funds in the run up to an election, to use for election purposes. This man is of good character and has never been convicted of any offence. The Garda superintendent turned down the application on the grounds it would encourage, directly or indirectly, unlawful acts and protests. This was at the height of the anti-water charge campaign. When the ruling was appealed to the District Court, the judge said, "We are talking about door to door collections here ... which at best could be described as an invasion of privacy in the home or nothing short of coercion upon that individual to give in circumstances where they might not wish to." The judge was Judge Michael Coghlan. He had been the director of elections for the Labour Party in the 2009 European Parliament elections in the Leinster constituency, a campaign which I presume involved going door to door and knocking on hundreds of thousands, or perhaps tens of thousands, of doors.

The verdict handed down last week by the judge in the case of the 17 year old individual in the Jobstown trial, the so-called Joan Burton protest in 2014, and I will deal with the broad principles of it and not go into huge detail, was chilling for anyone concerned about civil liberties. Judge John King found the 17 year old, who was 15 at the time of the protest, guilty of false imprisonment, a charge which is in the same league as kidnapping.

He was involved in a protest that blocked a Minister's car and he called on others to block the car. He walked backwards holding a mobile phone asking the Minister to talk to us. He may momentarily have been blocked by someone himself, thereby blocking the Minister and her adviser briefly. The implications of that ruling are that anyone involved in a sit-down protest, a form of protest employed on hundreds of occasions since the foundation of the State by many different groups, including students, trade unionists and farmers, is potentially committing a criminal offence which is in the same league as kidnapping. It is a comment on the rather tame character of journalism in this State that this ruling has not excited a greater degree of critical comment to date. Judge John King was appointed by the Fine Gael-Labour Party Government in 2015.

The Bill tinkers with the judicial appointments system in a minor way. It has some positives, which we welcome. The legislation makes it more difficult for the Government to pick its own favoured judges in a nakedly partisan way, improves the gender composition of the Bench, which could be important in domestic violence cases and so on, and provides for training for judges. Training should involve addressing the behaviour of some judges to improve their dreadful approach to members of the Traveller community who appear before the courts. I have some quotes relating to comments made in our courts in recent years about members of the Traveller community but I do not have time to go into them. Changes are needed to judicial appointments and the judicial system in significant measure. With regard to important key aspects, those changes are not to be found in this Bill.

Deputy Clare Daly

I am absolutely delighted that the Bill has been tabled. People often correctly give out about politicians but at least we have to go before them once in a blue moon and there is some element of accountability and right to recall whereas the Judiciary is completely and utterly a law unto itself. It is great that so many judges perform so well but we are stuck with those who do not. While I am glad Fianna Fáil introduced the Bill, the measures will only go some way to improving the quality of the judges we end up with. The idea that somebody could be in such a position of power because of political connections rather than merit and so on is absolutely reprehensible and I welcome the measures in this regard. However, we need to put the spotlight on this issue. Substantial reform in this area is critical. The lack of training and regulation of judges is a huge problem. When they behave irrationally, nothing can be done. The idea of justice not only being done but being seen to be done cannot happen in our State while the Judiciary is organised in the manner it is currently.

I would like tell to story and I assure the Chair that the story, even though it involves a court case, will not go into details of the case in front of the judge but it is a graphic example of what I am talking about. It is incredibly fresh in my mind because it happened today and it involved me and a judge in Naas District Court. The history of this case is that I was summonsed to appear before Naas District Court on a driving offence. I allegedly drove at a speed of 59 km/h in a 50 km/h zone. Three weeks ago, I was called in respect of the case. The case was not listed for a hearing on that date; it was to be the first mention in court. When I arrived in court, the case was No. 188 on the list and the judge is well known in the area, for whatever reason, for not starting judicial proceedings on time. Even though the court is scheduled to begin at 10.30 a.m., he regularly appears much later than that. There is also a tradition of cases being religiously taken in order. In every court sitting I have ever attended as an observer, defendant or plaintiff, the judge normally goes through the list, dispenses with the cases in which a court date is being sought and keeps back the cases that are due for hearing in order to efficiently administer justice and ensure the management of the time of all the people who end up in the court on the day, including those who take time off work to attend because they have been summonsed as witnesses or defendants, solicitors, gardaí, prison officers and so on. My case was listed as No. 188 out of 188. The judge proceeded with the cases for the morning. I watched what was happening in them, and then I instructed a solicitor on this minor driving matter and left the court at lunchtime. Later that day, I attended an Oireachtas committee meeting and I was not to know that the judge having reached case No. 175-----

Acting Chairman (Deputy Catherine Connolly)

Is the Deputy relating this to the Bill?

Deputy Clare Daly

I am. It relates to the fact that judges are not subject to any accountability whatsoever and to the huge costs the State can incur because of their irrational behaviour. When the judge was finishing up for the day, he had reached case No. 175 but decided to jump to the end of the list and call case No. 188. He called the solicitor before the court and asked him where was his client, even though I had instructed the solicitor, and what reason I had for not being there. The reason was I had been there in the morning and had watched how this judge had dealt with cases. I witnessed cases being called for which people did not turn up on similar charges or did not have a solicitor. No Bench warrants or any other proceedings were dealt with. A judgment was simply given in those cases.

Judges are in an incredibly powerful position. I respect our court system and I respect the fact that judges have discretion but that discretion has to be exercised proportionately and rationally and when it is not, there has be some body in place to call them to account. The judge could accuse me, without any recourse on my part, of disrespecting the court. By doing that and issuing a Bench warrant in those circumstances when I clearly was not a risk of absconding - the case not even listed for a hearing and he dealt with other cases earlier without issuing a Bench warrant against those who were not there or who did not have a solicitor - the consequence of his action was that An Garda Síochána, which was an innocent victim, was subject to massive negative publicity that it had orchestrated this. A sergeant had to leave his post in Newbridge, drive in a squad car to Swords and spend the day there vacating the order at enormous expense to the State. I had to return to Naas District Court today to listen to the same judge lecturing me about disrespecting his court, not giving me an opportunity to say anything about his irrational decisions but, at the same time, carrying on. Our laws provide that nobody can do anything about that judge but he is causing huge problems with regard to the administration of justice given the inefficiency of the court sittings in his district. This needs to be radically reformed. I am glad that Fianna Fáil opted to introduce the Bill today because it is long overdue. This is only one aspect of judicial oversight and we need to go further. I acknowledge a judicial council is included in the Government's programme but some outrageous decisions and behaviour are taking place in our courts. In fairness, the presidents of the District Court, Circuit Court and so on can do nothing about it. That cannot be allowed to continue.

Judges have been appointed to areas or even communities in which they worked as a solicitor and this has led to conflicts of interest. They presided over cases involving people they formerly represented and proceeded to hear the cases, which is completely wrong.

The option of challenging judges through a judicial review is not sufficient because one is putting oneself in a position of massive expense and accusing a judge of bias, which people do not want to do.

Other Members have made points about some inconsistent decisions which have been made with far more awful consequences than mine. I wanted to use my case as an example of the utterly ludicrous behaviour of some of the people we have entrusted to manage our courts but no one can do anything about it. The saddest point about the case I referred to is that the judge in question is the sitting judge in Naas District Court. This means he can stay there for as long as he likes. From looking at him today, he has a few years left in him. The court could have him for about 12 more years. The expense to the State of having 100 gardaí, solicitors and people tied up every day while he operates his court as I described is utterly ludicrous and in radical need of change. I support this Bill as a first step in that process.

Deputy Mattie McGrath

I too am pleased Deputy Jim O’Callaghan has presented the Judicial Appointments Commission Bill 2016 this evening. Tosach maith, leath na hoibre. It is a tiny baby step, however.

Under the Constitution, judges are appointed by the President, acting on the advice of the Government. The existing system of appointment involves the Judicial Appointments Advisory Board submitting to the Minister for Justice and Equality the names of the persons who have applied for judicial appointment and whom it recommends for appointment. The Minister then brings these names to the Government which, in turn, submits its advice to the President. It all seems to be a transparent, accountable and fair process. However, the reality is different. The intrusion of political favouritism in the appointment of judges has been ongoing since the foundation of State. If it was not, then there would be no need to reform the current system. Goodness knows from what we heard tonight and from what we know, the system is in bad need of reform. Talking about reforming the procedures for the appointment of judges has been doing the rounds since 2013, or before that. I compliment the stance taken by the Minister for Transport, Tourism and Sport, Deputy Ross, who has insisted how members of the Judiciary are selected and appointed be completely overhauled.

Deputy Penrose, who is a barrister - he did not declare that, although he never hides it - gave a lecture recently in which he was scathing about the Minister, Deputy Ross, and about what he said before he went into government and what he is doing now. Deputy Penrose said that according to the Minister, there were two qualifications to be a judge, namely, know nothing and lose the election. While Deputy Penrose did not lose his seat, the Labour Party was fairly banished in the last general election. It is almost a shipwreck now. While I have great respect for Deputy Penrose and the legislation he has introduced, he can apply that to his own situation.

We must have a declaration of interests for judicial appointments. I sat for a long time in the Government formation talks, in and out with the Minister, Deputy Ross, and many others. There was ferocious resistance when I looked for a declaration of interests for judges to be part of the programme for Government. If they could have banished me to hell or to Connacht from Government Buildings, I would have been banished that day. There was ferocious upset and annoyance with me, as if I were off my rocker.

We heard Deputy Clare Daly's case and we know what goes on in the courts. There was the scandal of the CRH case and the judge. I brought some of the small families into this House, I have gone to court with them and I have attended CRH annual general meetings with them. The judge who was hearing the case denied justice to ordinary families and small business people who gave employment and were wonderful people in their own right. They were gobbled up by this conglomerate, CRH, while the Competition Authority stood idly by. The judge was prepared to sit on the case when he had millions of euro worth of shares in CRH. When he was forced off the Bench, he declared he had forgotten or did not know he had the shares. When one is dealing with this kind of issue, there has to be transparency.

There are many good judges who work hard in the family and other courts. However, there are many bad ones too. Once a judge is appointed, he or she is a judge for life. The retired District Court Judge Pattwell, who was quoted tonight, admitted he was appointed politically. I know why and when he was appointed and who did so.

I was in the Circuit Court for 17 days on the most spurious of charges. The Minister, Deputy Ross, wrote a chapter in a book about it. What was allowed to be published, after the barristers dealt with it, was honest and forthright, showing part of what went on. I was singled out by a special judge when I looked for a special sitting. It suited everyone but my barrister said I would never get it. I did get it. The eminent judge I got was hand-picked by the party introducing this Bill to come down to get me out of this place because it did not want me in here. I have said this to Members privately but they tell me I am daft and mad.

I am sure Members will have watched the film "Double Jeopardy". I was meant to be in two different courts, the Circuit Court and the District Court, at the same time on the same day. This was totally unfair and it was impossible for me to be in two courts at the one time. My case went on for 17 days at enormous cost. There was naked political corruption in the case. Thankfully, I was before a jury of my peers and, after 17 and a half days of a sitting, they decided I was innocent of any charges. However, there was no redress. I did not get any expenses or anything else. I paid the price, as did my late mother and many other family members who were tortured in that way. It stinks to high heaven.

The good work done by judges is being negated by the craziness of some of these people. I have gone to the Four Courts with the New Land League, Jerry Beades and many others, trying to assist people. In one case, a poor woman was meant to be brought to the court in a prison van. I must thank the prison warders for being so kind to her by bringing her in a car instead. She was not able to stand up or talk. I could not hear a word of the recently appointed judge, who was not so long ago around here advising the Labour Party, Mr. Justice Humphreys. She could not hear him either. This happens in many courts. I protested by trying to stand beside her on the Bench as a lay litigant but I was not allowed to do so. Justice delayed is justice denied. Justice unheard is a farce. The lady was not able to stand but the judge would not allow her sit. The treatment was degrading, insulting and disgusting. Thankfully, she is out now and living in Tipperary, although she is from Cork.

One cannot hear a word that goes on in most courts. The judges do not care. It suits the barristers fine. They will do the talking while we pay up and shut up. It is terrible that in most cases one cannot hear a word as it is all done between the barristers. If one takes a case to the High Court, where up to 500 cases can be brought, one must have a solicitor, a junior counsel and a senior counsel. It is a racket. The barristers do not object to it because it is an industry. Out of 50 cases, 40 could be settled on the steps of the court against the wishes of the clients, like in my cases where people were claiming money from me for accidents. The whole barrister and legal system needs to be reformed because it is a cosy cartel.

Litigation is responsible for the 40% increase in car insurance prices. It is robbery and deceit. Insurance for families and young people has been hijacked, resulting in many not being able to afford it. One only need compare the number of whiplash claims in England to those here. The system is rotten. Many people face eviction from their homes because their banks have taken them to court or sold on their mortgages and loans to vulture funds which have done so. They have no hope when the judges sitting on their cases will not declare they owe millions of euro to the very same banks. I have been at more court cases like this than I want. They involve unfortunate people. The Garda is now being used to stop people like me going into the court as lay litigants. It is an abuse of power.

Acting Chairman (Deputy Catherine Connolly)

As I reminded Deputy Clare Daly, will the Deputy speak to the Bill?

Deputy Mattie McGrath

I welcome the Bill but we need much more. I salute the Minister, Deputy Ross, for what he is trying to do in government. I saw the resistance when I looked for a declaration of interests from judicial appointments. All Members must make one. What is so precious about judges? Are they an endangered species? Mention was made of the new Court of Appeal and all the cases it has heard. The establishment of that court was forced through this House with no accountability as to how many cases it would hear, when it would do so or the costs involved. There is no justice for ordinary people because they cannot afford it.

The barristers are not jumping up and down to change that any time soon, and neither are the solicitors. There are many good solicitors and barristers but their rates are exorbitant and prohibitive. Justice over-charged for is justice denied. We have heard of judges who do not declare, will not declare and are untouchable. They retain their positions for life, with no requirement to take refresher courses, which I have looked for in the past. Numerous times in the past I have raised in this House with Fine Gael the matter of a judicial council Bill, as did the Minister, Deputy Ross, and many others. It is supposedly a commitment in the programme for Government. When will it be published? It appears to me to be very far down the line. We need the appointment of judges to be removed from politics. While models elsewhere, including Spain, are working well, the model here is not functioning.

Acting Chairman (Deputy Catherine Connolly)

In regard to Teachta Penrose, he did declare that he is a practising barrister.

Deputy Mattie McGrath

He did, but in the middle of his contribution rather than at the commencement of it. We all know it, but he should have declared it at the start of his contribution.

Deputy Eamon Ryan

I like living in this country. I think that as a Republic we are a success, although not in every way. We all have failings. People watching the proceedings of this House might on occasion think we are a shower of clowns and as such we are not a success. I have an enduring respect for the State. I respect the flag, the harp and our institutions. I am currently reading a book about the history of the 1916 Rising by Charles Townsend, an English historian who writes brilliantly about the men whose statues are displayed around this House. I have huge regard for them in the context of the foundation of our State and for their inspiration in starting that. I also read another book by Charles Townsend about the period 1920-1921, which inspired me even more. We won our independence through the people's courts. Through our collective refusal to recognise English law our country became ungovernable and we made a historical leap. The collective sense that we were able to manage our own legal system broke an empire. I still get that sense when I go into courts and I see the same iconography, the same flag, the same harp. The Acting Chairman, Deputy Catherine Connolly, knows that the courts in this country are not all flash and modern: they are old, decrepit and run down in many ways but I get a certain pride from that.

I am nervous about speaking from personal experience. To be honest, I believe one of the strengths of our judicial system is its independence. Much as I respect what I have heard this evening from Deputy Mattie McGrath and Deputy Clare Daly and yesterday from Deputy Paul Murphy in terms of their experiences in their individual court cases, I am slightly nervous of our mixing personal experience of the judicial system with our role, which is to legislate and be connected with the courts in an integrated synchronised way to protect and develop our constitutional Republic, which I stand by, as I am sure everybody else here does too. My experience, although I do not propose to speak about any individual court case, is one of concern. I recall being told by friends of mine, one of whom is a sergeant in the Garda Síochána, that a particular person would not make it because he or she was not the right political colour. One might similarly hear at The Bar that a particular person is likely to get a case because he or she is of the right political colour. There is that sense in The Bar that to get appointed a person has to be part of one tribe or another. I do not like that. I do not think it sits with the tradition of an independent Judiciary that has the confidence of all the people, which was the foundation stone of our State in 1918-1919 when we took onto ourselves a separate judicial system, a people's court system.

I would like to relate one other personal experience which occurred towards the end of my time in government, which was a particularly tense and difficult time within this State. During my time as a Minister with responsibility in the industrial area I was approached by someone who was interested in investing in the State. The investment never took place and so it does not matter. However, I met the person in the context of trying to encourage investment in the country. The person, who was an intellectual who came from a country with a lesser independent judicial system, told me that he or she wanted to invest in Ireland because this is one of the few countries in the world where a person can take a case against the Government and have a 50:50 chance of winning, depending on the merits of the case. I note the Minister, Deputy Ross, is nodding. That is a reasonable characteristic of the independence of our judicial system. It says something about the strength of this country.

Deputy Clare Daly is correct that every court is important. The District Court, in terms of how a judge applies the law, is as important in some ways as the Supreme Court. That is the strength of our State. The people's court starts with how we treat every citizen in the District Court. For all our failings, including in the judicial system and the appointment of judges, in which I was involved when my party was in government, although I was not particularly comfortable with the nature of the judicial appointments process, in terms of appointments to the High Court and the Supreme Court, we have managed to maintain an independent Judiciary, to appoint some of our best people to the Supreme Court and to develop on the founding strength we had in 1919 or 1920.

Deputy O'Callaghan's proposal is a positive one in that it retains the final selection process within the political system, which I believe is right. I believe that constitutional balance is right. I do not believe we should be handing the entire selection process over to some independent so-called arbitration system. It is right that be retained by this assembly of Deputies, which is akin in some ways to the very juries that are the cornerstone of our judicial system. We are ordinary citizens who happen to be elected representatives. It is appropriate that our elected Cabinet, similar to a jury - there are 15 members of Cabinet and 12 members on a jury - would make the final call. It is equally appropriate that we try to wash away some of the legacies of tribal politics around whether a barrister is a Fine Gael barrister, a Fianna Fail barrister, a Labour Party barrister or a Green Party barrister. I do not think that is necessarily strong or good for our judicial system. The proposal advanced in this Bill is that a public appointments system would present a choice to Government and the representatives of this House but that the final choice would rest with the political system. Part of the strength of, and reason for, our independence is our strong independent constitutional system. Part of that is this House and the Government which makes the Executive decisions which have to be tested in this House.

Drawing again on personal experience I have a friend who was very involved for many years in environmental campaigning in India, a country with a similar constitutional structure, very much inspired by our independence revolution movement and our ability to break from the empire. The parallels are uncannily close. The Indians fought in huge numbers - approximately 1 million, I think - in the First World War with the promise of home rule which was never delivered, similar to the Arab people. India finally achieved its independence and established a constitution that is very similar to ours. It has had a slightly different experience in that while its high courts are very proper and, no doubt, august and independent, much of its judicial system is not to my mind as independent as ours has proven to be.

We need to be careful and to look after the baby as we change the bath water. The proposal from Fianna Fáil in this case does that. The Green Party is happy to support this Bill, to stand up for the independence of our judicial system and the right of the political system to be the final arbiter of choice and to stand up for the Republic as ordinary citizens representing people in this House in the same way as ordinary citizens stand in a court as part of a jury to make decisions on behalf of all other citizens. That is right and proper. It is what we all seek to defend today.

Deputy James Browne

In the interests of full disclosure and to ensure Deputy Mattie McGrath does not have to pull me up for not doing so, I declare that I am a barrister and have a practising certificate, although it is six months since I last appeared in court. I welcome the Judicial Appointments Commission Bill and I congratulate my colleague, Deputy O'Callaghan, on bringing it forward. It seeks to establish an independent commission which will recommend and rank suitably qualified persons for appointment to the Judiciary. It is a merit based system that will aid transparency, fairness and independence in terms of the appointments of all judges. We are fortunate in this country to have a proven and independent Judiciary. Justice must not only be done, it must be seen to be done. This Bill, if enacted, will aid transparency of the independence of judges by providing a merit based system of appointment.

It is also a timely Bill. We understand that judges cannot be appointed until such a Bill is passed. We have a farcical situation. The non-appointment of judges suggests that the Government takes the view that it has an entitlement to play around with a key pillar of our democracy for the political whims of some. Such a Government is willing to indulge notions of grandeur. The Judiciary is the guardian of our Constitution and the arbiter of disputes. It is vital to the proper functioning of our democracy. By withdrawing judicial appointments, the Government brings the judicial system into disrepute and undermines the separation of powers. I agree with Deputy O'Callaghan that the non-appointment of judges is potentially in breach of the Constitution, in particular where non-appointment is for political reasons.

The non-appointment of judges is not only important because of the importance of the Judiciary itself and its constitutional role, it is important primarily because of the implications for victims. It is those who find themselves in court who are the real victims of delays in the appointment of judges. The victims of the Government's attitude are those who find themselves before the courts through no fault of their own in family law, civil and criminal proceedings. If one goes into the High Court tomorrow to seek a date for a civil case, one will not get a listing until approximately March 2018. That is 16 to 18 months away. Even if one turns up in March 2018, one's case might not get on. In the Central Criminal Court, the wait is 18 months. This is after a serious criminal case of murder or rape has actually been prepared by gardaí and the DPP. When a victim or witness turns up after 18 months and another key witness or expert is not available, the case will not be heard and will go back for another 18 months. There are criminal cases which are not seeing completion for over a decade after they first come before the courts. Meanwhile, the alleged perpetrators are on bail year after year. That is fine if they are innocent, but where is the justice in having those people out on bail for such lengthy periods if they turn out to be guilty? How many criminal cases have been lost and how many prosecutions have failed because of delays in our courts? Over time, the memories of witnesses dim and people start to have self doubt. Victims or witnesses die and evidence may be lost. In the Court of Appeal, the delay is six to eight months. To have sufficient numbers to hear cases, the Court of Appeal is pulling judges out of the High Court, which increases the delays in the lower court.

All of this is hugely important. Whether they are people in family law disputes, civil disputes, victims or witnesses in criminal cases or innocent persons who are charged with an offence, they all have their lives put on hold. I have seen people in the courts as year after year drags on and their physical and mental health deteriorates. In those circumstances, it is wholly unacceptable that there would be any delays in the appointment of judges. In circumstances where there is now a perfectly acceptable Bill before the House, in Deputy O'Callaghan's legislation, I urge Members to support it and drive it on. If the issue of non-appointment of judges drags on and there is a challenge by a victim or a witness where a case collapses on foot of delays, imagine the embarrassment for the Government. More importantly, imagine the embarrassment for the State if the courts found that the failure to appoint judges for political reasons was in breach of the Constitution. It would bring the entire system into disrepute on an international level.

The losers in all of this are the victims. Their physical health and mental health is at risk. Ultimately, the loser could be the State itself. We have heard several times that justice delayed is justice denied. It is not an empty phrase. It is a very meaningful one for those who are in the courts on a daily basis and going through delays which constitute what I consider a quiet nightmare. It is something to which very little attention has been paid. I encourage people to attend to it because it is a quiet nightmare for all those involved in court cases. Most people will never have anything to do with the courts and on the rare occasions they do, the stress involved is phenomenal. I have heard so many people over the years say that they were sorry they had ever gone to court and made a complaint because of the delays involved. I urge the Government and, in particular, the Minister, Deputy Ross, to support Deputy O'Callaghan's Bill. Let us bring forward and enact a Bill that is fair and will bring about the transparency and independence needed to allow us to get on with the appointment of judges and, once again, restore credibility to the judicial system and the House.

Minister for Transport, Tourism and Sport (Deputy Shane Ross)

I thank everybody who contributed on the Bill so far. It contrasts markedly from debates in the House over the last few years which have been very divisive and have witnessed a unity in opposition to exactly the proposals included in the Bill. The only group to do anything about judicial independence and judicial appointments in the past was the Independent group. In the past, Fianna Fáil, Fine Gael and the Labour Party have united in opposition to Bills of this sort. As such, I congratulate Deputy O'Callaghan for introducing a very constructive and radical departure for a major political party in this debate. It has taken a great deal of courage and imagination to put forward such an encouraging change. For a barrister to do it is remarkable and should be noted. Having said that, the Bill is not radical enough. It should be more radical, but a major step has been taken in this discourse by all the parties in the House and it is indicative that something is happening which is different, albeit not everything. Something is happening in the Judiciary which is being resisted, but which people in the House have the courage to take on board. While there are differences between the Fianna Fáil Bill before the House today and the Bill the Government will introduce shortly, we will also see if we are mature about a unity of purpose. We will be able in a very short period of time to have a completely new system of appointing our judges.

One or two speakers have taken up the reasonable point that it is wrong to block or oppose the appointment of further judges until the legislation is introduced. Deputies Brown and Penrose made that point. I understand what they are saying about some justice being delayed, although I do not think the problem is as acute as it might be because not that many judges are due to be appointed. However, the history of this particular subject has been cursed by delays, pretence and Governments continuously coming forward to say they are looking at this, will address it and have commissions sitting here, there and everywhere on it. However, nothing ever happens.

My fear, which is justified by the evidence of the past 20 years and before that, is that if delays are allowed, permitted or encouraged, nothing will happen. There is already a major backlash against the sort of proposals contained in Deputy O'Callaghan's Bill and those the Government will introduce. The powerful voices the Judiciary are already being heard and are mobilising against this. We must ensure that this goes forward and that radical change is enacted. The only way to do that is to appoint judges quickly. The only way to pass legislation quickly is to take that stance. I fear, with justification, that delay will mean it will never happen. By insisting on this course, things will happen very quickly.

This particular problem arose in and around 1995 when the Judicial Appointments Advisory Board, JAAB, was established. Deputy O'Callaghan knows the make-up of the board because he has suggested some substantial reforms to it. However, I do not think people realise that the current composition of the board is a stitch-up. It comprises political appointees and lawyers. Let me remind the House who is on the board. It has 11 members. The Chief Justice chairs it, there are four court presidents, the Attorney General, a political appointee for the past 20 years and, before that, a nominee from the Bar Council and a nominee from the Law Society, all of whom are either political or legal insiders.

The only three people who do not come under that category are what they so cosily call three lay nominees but they are also political appointees. They were appointed by successive Governments that chose people with whom they felt safe. This was done in the same manner in which all political appointees are nominated in this country. They are people who, almost invariably, have identifiable political colours. That is the system that we must reform. This is a carve-up between lawyers and politicians. No wonder there is resistance to reform from lawyers and politicians. That is what is happening today. It is very difficult to break what is an appointments cartel of lawyers and politicians. The first step is being taken here today.

No doubt Deputy O'Callaghan and any other barristers in the House will be aware that the JAAB is known in the Law Library as "JAABs for the boys". It is ridiculed by its own people. In this House I have heard for many years lawyers who are also politicians saying that political connections do not matter. People on these benches have said that. It is patent nonsense. I will not dive into the depths of breaking the protocol in the House by naming those who have been appointed judges because, as has been admitted very honestly by Deputy O'Callaghan, of their political colour. Everybody knows them and knows that this is happening. It is happening because it is Buggins' turn. It happens under Fianna Fáil, Fine Gael and the Labour Party. That is what we are trying to break and we will break it. If it takes another month or two to do so, that is all right. It must be done quickly.

Rural politicians have told me that they have queues outside their clinics and people knocking on their doors asking if there is any chance of an appointment to the District Court. If people in this House are honest, they will confess that is what has happened to them and has been the normal route to the District Court. They come through the JAAB system, which is a farce.

I understand that the board has to nominate seven members for each appointment. The clear evidence is that the numbers have gone up to 40, 50 or 60. The names go to the Minister via the system by which people are chosen by those who are politically appointed. The decision goes to the Cabinet and the Minister who, no doubt, has been lobbied in turn picks someone who is from his or her political colour. That is what has been happening. Does anybody in this House know how many interviews the JAAB has held over the past 20 years? It has the power to hold interviews, but in 20 years it has not held a single interview for a judge's job. That is what we are trying to reform and what is so important about what we are discussing. That is why it is so important that the main political parties accept that.

The Bill tabled by Deputy O'Callaghan is a tremendous step forward. I said it is not radical enough because the programme for Government specifies something which is loathed by the judges - but patently necessary - namely, that there must be not just a reduced number of legal personnel but a lay majority on the board. We can no longer have an arrangement between political nominees and judges. Not only must there be a lay majority on the body choosing judges, there must also be a lay chairperson. There is a difference between our Bill and that proposed by Deputy O'Callaghan. I understood his Bill states that the Chief Justice will remain in place. It is a reasonable point of view but I do not agree with it. The power should not rest with the Chief Justice in this particular area.

I would like to take up one point made by Deputy Mattie McGrath. Judges should be subject to far greater scrutiny, not just in terms of being able to make them leave office in different ways than is currently the case but they must also be subject to disciplinary action. The idea that they should not be obliged to make declarations of interest is totally and utterly wrong. It would serve their purpose if they did not see themselves as above this sort of transparency.

Deputy Jim O'Callaghan

I thank all Members who made contributions on the debate for reading the Bill and for the thoughtful contributions that have been made. Many Members spoke about issues concerning the Judiciary that go beyond the appointments process. I do not intend to reply to them.

The debate indicates that there is a necessity for legislation in respect of a judicial council, something that was promised and which the Judiciary sought. This is a matter with which the House should deal.

I refer to the comments made by the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald. I would like to deal with one or two issues in response to what she said. She made a number of comments in respect of the Bill. She said in respect of appointments for the position of Chief Justice and the presidents of the courts that I sought to limit the appointment of those persons within the courts. That is not correct. In respect of the proposal I have for the appointment of an individual as Chief Justice, any member of the superior courts would be eligible. That would also apply in respect of the President of the Court of Appeal and the President of the High Court - any superior court judge would be available for appointment.

The Circuit Court presidency should only be available to an individual who is a member of that court, and I say the same in respect of the president of the District Court. I do not think it is a good idea that individuals who are not judges are appointed to positions where they would be running courts.

The Tánaiste said, in the context of her Bill, that she would like to see a facility for District Court judges to be eligible for appointment to the High Court. This House and the Government should be careful about promoting judges through the different ranks of the Judiciary. There is an obvious necessity to appoint High Court judges to the Court of Appeal or from the Court of Appeal to the Supreme Court. Sometimes Circuit Court judges are appointed to the High Court. However, if District Court judges are eligible for appointment to the High Court, I would be concerned that some ambitious individuals may seek to curry favour with the Government so they could get those promotions. We do not want that in the Judiciary.

A judge looking for promotion is not a good judge. Deputy Jonathan O'Brien made reference to the removal of judges. That is a matter to be dealt with by the House and I believe there is legislation in place to deal with such an issue, if it ever occurs, under the Constitution. Supervision or disciplinary matters in respect of the Judiciary are matters to be dealt with by the proposed judicial council.

I welcome Deputy Penrose's speech. He made a valuable contribution with regard to my statement. It is the Government's constitutional duty to fill vacancies when those vacancies arise in courts. The Government can take a period of time in which to nominate individuals to fill those vacancies but if the Government delays unnecessarily or disproportionately then, in my view, it is getting close to breaching its constitutional duty to fill those positions.

Contributions were made also by Deputy Mick Barry but I am not sure whether the Deputy intends to support the Bill. He said that there are parts of it he welcomed and parts of it that were merely tinkering with the legislation. I note also the comments made by Deputies Clare Daly, Mattie McGrath and Eamon Ryan. I will correct one of Deputy Ryan's assertions. Sometimes politicians have a slightly incorrect view of lawyers and what happens and the individuals who are barristers. I think it was Deputy Ryan who said there were a lot of barristers who seek to affiliate themselves with political parties in the hope that this will promote their careers. In my opinion, it is extremely damaging to a barrister's career to get involved in politics. People will think the barrister is not serious about his or her career and it can have a damaging impact. If I was giving advice to any young barrister who was anxious to develop a strong practice, I would say stay away from politics.

I will now turn to the issues that were raised by the Minister for Transport, Tourism and Sport, Deputy Ross, in his speech. The Minister made a number of points, some of which are valid, but I fear that he is missing the main point. The Minister believes that this is all some cosy cartel where lawyers are getting together with judges and appointing their mates to the Bench. That is not correct. The biggest problem this State faces currently is that we cannot get enough quality people to apply for appointment to the superior courts. The Minister, Deputy Ross, refers to it as "JAABs for the boys". I have been working in the law library for 23 years and I have never heard that. What I have heard is that people are desperate to get applicants to apply for positions on the Bench and in the past six or seven years that has changed considerably. It used to be the case that people, when they reached the age of 55 and having had a good strong practice as a lawyer, would apply to become a High Court or Supreme Court judge. That is not happening anymore. It is a real crisis. We have to ensure that we seek to attract the best people to fill these positions because they play an extremely important role in our society.

I say to the Minister that I am happy to work with the Government and with him on any legislation that the Government intends to introduce. We are told that the Government is going to introduce legislation shortly. I do not know what "shortly" means in a political context but I know that under the supply and confidence agreement that my party has with Fine Gael, there is a requirement that any Bills that pass Second Stage be brought to Committee Stage within ten weeks. That brings us to the beginning of January 2017 and I want my legislation before the committee at the beginning of January. The Fine Gael Party has an agreement with my party that this will happen. If the Minister, Deputy Ross, knows that his legislation is going to be introduced in the Dáil before then, so be it. We could look at it and maybe bring both items of legislation to Committee Stage at the same time. If, however, it is not in on time and if it is not in by January, this Bill will be proceeding to Committee Stage. Lyndon B. Johnson said that the most important trait in politics is being able to count. I know that in the House there are approximately 80 Members who will support my legislation. I do not, however, want to put myself in a position where I am in conflict with the Government; I want to work with the Government. I would have thought that the appropriate mechanism would be for the Government to put down amendments to my legislation if it wants to get its proposals in at the same time.

The Minister, Deputy Ross, said that the Judiciary is desperate for this not to happen. That is not correct. The Judiciary put in a submission a number of years ago with regard to how it wanted the appointment process changed. The Judiciary accepts and recognises that judicial independence will be enhanced if there is a transparent process whereby people are appointed to the Bench solely based on merit. There is no dispute in the House that people in the past were appointed to the Bench because they had political affiliations. Not all of them and not even the majority of them, but a lot of them were. As I said at the outset, a lot of them were appointed to the Bench despite the fact that they had political affiliations with a party which was not in government at the time. It is incorrect to state that there is some great conspiracy out there trying to stop this radical legislation. I do not deserve any credit and I do not deserve any medal for bravery for introducing this legislation. It is perfectly coherent legislation that all Oireachtas Members should be thinking about. It is something that should have been done in this House long ago, I accept that. I welcome the fact the Minister, Deputy Ross, is interested in this area but it is instructive that the Minister, who has been in the Oireachtas for 35 years, is now putting it forward as the main issue of concern in government. In my respectful opinion the Minister, Deputy Ross, has misidentified the problem. The problem is not that this is a cosy cartel: it is not. The problem is that we are finding it difficult to attract the best people to be appointed to the Bench. It is also important that we should retain governmental control of this process, as required under the Constitution.

My final point is around an area where there was some dispute with regard to the membership of the board that would make recommendations. In my view, the board should be chaired by the Chief Justice. As I said earlier, if I have an interview panel to select a person to be an editor of a newspaper, I want somebody on that interview panel who knows how newspapers operate. The last thing I want is a collection of lawyers on an interview panel deciding that they think they know how it operates. Being a judge is a very specialised and particular skill. We need to have people with knowledge of that and who know how courts operate. We do not want this mythical group of lay people, who know nothing about the courts, who give the appearance of transparency and who then sit in a room looking at each other wondering how to decide between two competing individuals. For that reason, we need to have people with knowledge of the courts in this body.

Question put and agreed to.