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Dáil Éireann debate -
Wednesday, 28 Jun 2017

Vol. 956 No. 1

Judicial Appointments Commission Bill 2017: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

I thank all those who contributed to the debate yesterday. In particular, I thank those who supported the Bill: Deputy Mattie McGrath; the Sinn Féin spokesman, Deputy Jonathan O'Brien; Deputy Catherine Murphy of the Social Democrats; and others, but I welcome all of the contributions to what is an extraordinarily important debate. If I have been taught anything in dealing with this subject and this debate, it is how incredibly difficult it is to tackle reform. After 30 or 35 years in this and the other House, I am beginning to learn that getting a mild reform through the Houses, away from the bastions and official Ireland, is a much harder project than I had anticipated. The Bill seeks to reform fundamentally the judicial appointments system. It has prompted an avalanche of responses from predictable quarters but at a volume I had not expected and which has taught me that the difficulties in addressing issues such as this sort are legion but worthwhile. This is a Government Bill inspired by the Independent Alliance and it will pass through both Houses after a very full and not a rushed debate. Nevertheless, I am aware of the fact that it has stoked up and mobilised powerful forces outside this House against some of its measures. I will address these issues.

I will be perfectly honest with every Member of the House: being a Government Bill, it is not radical enough for me. I had something a little more radical in mind. However, it is, as all partnership Governments sometimes find is necessary, a compromise and an agreement between various groups. It is also particularly sensitive to the issues which have been addressed by people outside and inside the House, particularly the Judiciary. There have been talks with the Judiciary and there has been absolutely no wish to offend it in any way and no indication from here that it has in any way done a bad job - quite the opposite. I would like to have seen a more radical Bill in that I would like to have seen one name come to the Minister for Justice and Equality, not three, to give politicians less choice. I would like to have seen a smaller rather than a larger commission of 13 and other such measures. It is, nevertheless, a hugely progressive Bill which addresses some of the issues which have been the tip of the iceberg in dealing with problems in Irish life which extend far beyond the selection of members of the Judiciary.

Having said it is a Government Bill, I wish to address one or two comments which have been directed against me as someone who has been very involved in preparing it. First, the Leader of the Opposition said yesterday - I know that exchanges across the floor can get a little heated - that I had some vendetta against the Judiciary, the legal profession and others, but nothing could be further from the truth. My family is steeped in legal tradition and the legal profession.

My father was managing partner of a firm now known as MOPs, Matheson Ormsby Prentice. I was perfectly used as a young child to members of the Supreme Court, barristers, solicitors and people like that pottering through the house from time to time. It is something with which I am fairly comfortable and familiar but I certainly do not have any grudge or axe to bear against these people or this institution. I state on the record, in accordance with what the Minister for Justice and Equality said yesterday, the record of the Judiciary in this country is something of which we can generally be proud. This is not in dispute. Everybody in the House has agreed on this. They are not infallible and do not have some sort of papal right to speak ex cathedra. We should be allowed to criticise them, of course, and we do so, sometimes at our peril in this House. We should probably be allowed to poke fun at them from time to time like we do at other people. This does not indicate a lack of respect.

What judges do so well is they judge. What judges have done so well is they have made judgments and they have done it well, and it is something of which we should be proud. The method and the way they are selected is a totally and utterly different issue, and the numbers and input into this is a totally different issue. This is what is being debated here today and what was debated so eloquently last night by many others. If people ask me whether I have an agenda the answer is that I do. I have had an agenda all my political life on this. It is that political interference in the selection of people who sit on State bodies, in positions of State or in positions involving the public purse should be reduced to a minimum. This agenda still exists and anybody who knows me will know that I have already introduced new methods in my Department whereby one name comes up to the Minister for selection to State boards. This gives me a very limited input to say "Yes" or "No". The same principle should be applied to the selection of judges.

The objective of the Bill primarily is to reduce, if it is not able to eliminate, political interference in the selection of judges. This is the primary aim, and to do it as soon as possible. What it also aims to do is allow ordinary citizens to have a pivotal input into the selection of judges. Who is afraid of ordinary citizens? It seems many people inside and outside the House do not want to see people with skills but who are ordinary citizens being involved in a meaningful way in the selection of judges. I do. I do not want to see politicians doing the job.

We know that for a long time political interference has been the curse of the system in the Judiciary. Many people speak about the Judicial Appointments Advisory Board, JAAB, the system in existence at present. They speak about it as though it were some sort of sacred system that people go through, which arrives to produce ipso facto independent judges. We have been fortunate, of course, in what the judges have done so well but this does not mean the system of selecting them is fair or is right. Yesterday was marked by the fact that people from Fianna Fáil and other parties and groups admitted perfectly openly that the system at present promotes people, and has been doing so, on the basis of their political colour. It has also been doing worse as it has been depriving people, good barristers and lawyers, from reaching the pinnacle of their ambitions and talents because they were of the wrong political colour. I want to see an end to this system. I want to see, as the Government wants to see, a better system. The way to do so is to pass the Bill and fix the JAAB and its abuses once and for all.

When we speak about lay people, and when we speak about ordinary citizens of whom so many people are frightened, we mean lay people. It was said last night that lay people already appoint judges or make recommendations. On the JAAB there are three lay people, that is correct, but from where do they come and who are they? The Ceann Comhairle need not worry as I will not name them. The lay people are appointed by the Minister. I do not even know who they are at present, I should have looked it up before I came here. After the JAAB was introduced the three lay people were paraded as the lay input. I will not say who they were, but let me tell the House what happened and what positions they held. Under the Fianna Fáil-Progressive Democrats Government of 2002, three were appointed. I am sure they were all good people. One was a former Fianna Fáil director of elections for Dún Laoghaire. Another was a former Fianna Fáil candidate for the European Parliament and the third was a Progressive Democrats supporter. It cannot be a coincidence that those particular jobs were awarded as a ratio of 2:1. It cannot be a coincidence that the two Fianna Fáil supporters survived the period of Fianna Fáil's tenure in government. This is what was happening. I am not saying Fianna Fáil are the only people who do this. Everybody has been at it. This system has to end. We have to put an end to this happening. This is what the Bill addresses.

The problem with the Bill and the main opposition to it is that people say the Judiciary does not have enough input and has to have a majority, and that out of the 13 members there should be seven lawyers and not six. This was very carefully thought out by those of us involved in the Bill. The input from the Judiciary will be massive. There will be three members of the Judiciary on the commission, namely, the Chief Justice, the President of the High Court and the President of the Court of Appeal. There will be the Attorney General and two other lawyers, one from the Bar and one from the solicitors. The place be bursting with legal advice, legal expertise and people offering good counsel about the appointment of individual judges. I do not know what they want, but what we want to see is a fair system which has enough legal advice, not something which is totally and utterly dominated by judges and lawyers. This is what we have constructed in the Bill. What we have put in is a majority of ordinary citizens. Last night, Deputy Mattie McGrath made a point which was perfectly legitimate. We trust ordinary citizens in other situations. We trust them emphatically to sit on juries to find people innocent or guilty and to make really important decisions. Nobody I know ever questions the jury system. Why can we not trust ordinary citizens to take important decisions about the selection of judges with the benefit of at least six lawyers to give them advice?

It seems self-evident that this is a perfectly legitimate argument. Why do we need to have a majority of legal people? Is it so the people they prefer and know should get through? People who are independent and impartial of the legal complex should be able to make that decision. The decisions that judges make affect the lives of everybody forever. They should reflect, in many ways, the diversity of society themselves. What we have tried to do in this Bill, which I agree is imperfect in many ways, is ensure that people who have the requisite skills but not a judicial background or judicial ties have an input into this commission. In regard to the point that not putting the Chief Justice in the chair is a kick in the teeth for the current or next appointee, that is untrue. The Chief Justice will not be in the chair for a very good reason. The chair is the most powerful position and it should not an insider who is in the chair in any position of this sort in any walk of life. It is an institutional decision and not a personal one about anyone. It is to give the lay majority independence and a stamp of credibility and authority to judges when they are appointed. We should not be frightened of this. We should not be frightened of ordinary citizens with particular skills taking important decisions. They will take well-informed decisions on the advice of judges and drawing on their own experiences and that of the other 12 people accompanying them at the table.

There are other issues in the Bill which are important. Does anybody in this House know how many interviews the Judicial Appointments Advisory Board, JAAB, with all its political imperfections, has held for judicial appointments in the past 22 years? It has had the power to do it but it has not held a single interview for a judicial appointment in 22 years. It has managed, however, from time to time to throw up as many as 40 candidates who were successful in their applications for the District Court. Everybody knows what happens then. Those candidates are recommended to the Minister who then selects one candidate. The JAAB has done a good job for some because the politicians have always got their person through. The JAAB has been able to do that for them. It has worked for them but it has not worked for those people who the JAAB has told they cannot come through or at least not until the Government changes. That system must be ended and substituted with something constructive.

Last night, the media and some contributors to this debate misinterpreted a statement made by the Minister, Deputy Flanagan, when he said that the heads of the two courts who appeared to have been left out would be included in the process.

They are not included.

They are included in the process under the Bill.

In the committees.

Deputy O'Brien is correct. They are already included in the Bill. There was no amendment to the Bill to provide for that: they were already included. They will sit on the two committees when a candidate is being selected for the Circuit Court and for the District Court. Their expertise will be used in that process. This was provided for in a deliberate response to the judges who said that expertise was necessary. Many other provisions of the Bill were amended in the process of consultation in response to judicial representations. I am not saying that this Bill is perfect. We heard some extraordinarily useful contributions yesterday not only from Deputy Jonathan O'Brien but from Deputy Catherine Murphy and other Deputies from the Independent benches, in terms of their suggestions regarding what particular provisions might or might not be changed. The Bill is not perfect. It could not be perfect when it is dealing with something as subjective as choosing lay members but it is a huge and successful start in addressing the scourge of political patronage in Ireland not only among the Judiciary but elsewhere.

There is no intention to say anything but good about the record of judges in this debate . We recognise that. It is important that they know that. There is no intention to insult them. This is simply an effort to give them a huge, significant and meaningful input in the process but not the power to make the final selection, which should be left to the good, honest, ordinary citizens of this country.

First, Fianna Fáil is strongly in favour of a change in the manner in which judges are appointed. Second, we are strongly in favour of a significant lay element in that process. Last night, the Minister, Deputy Flanagan, extolled JAAB and pointed to the significant differences it had made. I disagree with that because I am not aware of any difference that was made by JAAB. I agree with the remarks made by the Minister, Deputy Ross, in that regard. We are ad idem in that regard and the Minister is on the other side. I do agree with the Minister, Deputy Flanagan, when he extols the record of the Irish Judiciary, which was repeated here today by the Minister, Deputy Ross. Despite the faulty appointments system, we have managed to produce a Judiciary that has zealously and jealously guarded its independence, has acted as a third pillar of our democracy and has produced people of exceptional talent. However, the past is no guarantee for the future. It is right and proper that we should try to devise a system or insert into the current system of judicial appointments a process that will ensure that people are not appointed because of political or personal connections but are appointed solely on merit. There is difficulty in doing this because of the provisions in the Constitution which gives the Government and the President on the advice of the Government exclusive and final control of the appointment of judges.

It is precisely because we believe that this system should be changed that Fianna Fáil instructed Deputy O'Callaghan, the Fianna Fáil spokesperson on justice, to prepare legislation to do that. The legislation has been prepared - Deputy O'Callaghan gave a outline of it last night - and it has been widely acclaimed. The Government's legislation compares poorly. It is bad legislation. In response to the Minister, Deputy Ross, as somebody who has been returned successfully to this House on 12 or 13 occasions by my constituents and who hopes to be elected again, I have no fear of ordinary people.

The Minister, Deputy Ross, despite what he said in his contribution today has in the past accused the Judiciary of being massively resistant to change. In 2014, a committee chaired by the Chief Justice was highly critical of what was termed the current demonstrably deficient appointments system. In addition, the Chief Justice, Ms Justice Susan Denham has repeatedly called for a judicial council to establish best practice for the education, support and training of judges and for a structure to deal with complaints about judges. The Minister, Deputy Ross, must know the Chief Justice was not indulging in a solo run when she said that. She would have consulted widely with her colleagues, such that the view of the Bench is that the current system of appointments is demonstrably unfair and there is need for a system for the education and training of judges and a mechanism whereby complaints can be made about members of the Judiciary. I cannot get my head around how a body that is of such a view could be properly accused of being massively resistant to change.

It is demonstrably and patently false. In so far as the Bill is concerned, I note what the Minister, Deputy Ross, said about the position of the Chief Justice. As Deputy O'Callaghan said last night, establishing a Cabinet sub-committee without the Taoiseach as its chairman would be considered completely unacceptable. The Judiciary, as a body, is the third pillar of our democracy. Since its foundation, it has vindicated the rights and defended the liberties of our people. The Chief Justice sits at the pinnacle of that system. It is an insult to the office of Chief Justice that he or she should have to sit on a committee dealing with the suitability of individuals for appointment to the Bench in any position other than that of the chairman. It is an insult that he or she would have to defer to a third party as chairman.

Under Article 14 of our Constitution, the Chief Justice is one of the three people selected to stand in in the event of the death or incapacity of the President, who is constitutionally the principal person in this State. I find this reprehensible and I agree with Mrs. Justice Catherine McGuinness who said it is a kick in the teeth for the Chief Justice. I am no fawning admirer of the Judiciary. As the Minister, Deputy Ross, said, the appointments system has thrown up a handful of inappropriate appointments. Judges are not infallible; they make mistakes. I have not been shy in taking the judges on, criticising them and debating and arguing with them in public when they have made what I consider to be mistakes. Nevertheless, this is a question of respect for the office. When Harry Truman unexpectedly became President of the United States on the death of Franklin Roosevelt, he was asked how he coped, coming from a humble background, with all of the deference, the bowing, the scraping, the saluting, the red carpets and so forth that he received as President. He pointed out very simply that people were not bowing and scraping and deferring to Harry Truman, the individual. They were respecting the office. It is the office that we respect here. I find the provisions in the section of this Bill that provide that the Chief Justice will not be chairman of the commission or of any of the committees, and will have to defer instead to somebody else, is an insult to the office of Chief Justice.

The central question here is the question of a lay majority. What is the magic in a lay majority? Are we afraid of the ordinary citizens of this country? The Association of Judges of Ireland reluctantly commented on this Bill, despite its reluctance to get involved in public controversy, because it thought its potential downside to be so great. It said that no proper rationale has been put forward for the idea of a lay majority. It sounds hip and democratic and it is nakedly populist. There is a lay majority and to hell with experts. I think Michael Gove said to hell with experts during the Brexit campaign. Call me old-fashioned and conservative but I genuinely think there is no better-placed person than a judge to decide who would make a good judge.

The Association of Judges of Ireland said: "It is hard to imagine any other walk of life in which the majority of those involved in an appointments process would be required to come from outside the ranks of those serving in the area to which the appointments are being made." Let us take the examples of a surgeon, a scientist or an engineer. We are setting up a system where we insist that the people who make up the majority on the board, and who ultimately decide who is fit for the job, are people with no connection whatsoever to that job. The point made by the Association of Judges of Ireland is a very serious one. I did not hear a response to it either from the Minister, Deputy Ross, or from the Minister for Justice and Equality but I hope that it will be properly dealt with before the debate concludes.

We are talking about a lay majority of ordinary citizens. The term "ordinary citizen" is subject to very wide definition. Who is this lay majority going to be? We know that they will be very powerful people because out of a body of 13 individuals, seven will be lay people. Lay people in this instance is taken to mean non-legal people. I think even a member of the clergy could qualify as a lay person under this Bill. Who are these people going to be? The Bill is not very enlightening on this matter. It tells us who they will not be. It goes out of its way to tell us lawyers and even former lawyers are absolutely excluded. Anyone with the temerity to have practiced law would have to be out of that profession for 15 years before qualifying as a lay person under the terms of this Bill. It takes 15 years for the taint to be removed. I have known of people convicted of murder to be out again after ten or 12 years. Having paid their debt to society, they can walk the streets free and clear without a stain on their character. It will take 15 years to remove the taint of having been a lawyer.

Who will these people be then? Under section 15 of the Bill we are told that these people must have all sorts of qualifications, that they must have knowledge of commerce and so on and that they must have experience of membership of boards. There is, in fact, a danger in that, as Deputy Jonathan O'Brien rightly pointed out.

I recall a reference to qualifications - I do not know whether it is legislation or written into the Constitution - for people running for the Seanad. It states they must have expertise in commerce, in agriculture or whatever else. Nobody in this House can tell me other than that is almost more in the breach than in the observance. The simple reality is that the Public Appointments Service can only pick from those who put themselves forward, regardless of the expertise they have or do not have. I do not know what sort of people will put themselves forward. Having spent a lot of time in this House and having met many people, I can only think of very few who would want to put themselves forward for membership of the judicial appointments commission. I know a few, incidentally, but they are the very people I would rather see kept miles away from it.

People who apply for organisations like this tend to have a political agenda, as Deputy O'Callaghan rightly said. It might be pro-life, it might be pro-choice, it might be hardline law and order or it might be soft liberalism. There is no shortage of agendas out there, let us make no mistake about that.

In the future, will people applying for the Judiciary have to tailor their CVs or practice performing at interview in such as way as to satisfy the particular agenda, beliefs or prejudices of those individuals? Everybody will know who they are and where they stand. The system proposed by Deputy O'Callaghan in which the lay membership, be it in the majority or the minority, is picked from a number of reputable organisations, such as the Competition and Consumer Protection Commission or the Irish Human Rights and Equality Commission, would surely be infinitely preferable.

If the seven lay members out of the 13 get together in a block, they will have the majority and the voting power to put forward their nominee or nominees. This will damage the administration of justice in two ways. First, it will make it more rather than less likely that there will be more unsuitable appointments to the Bench. Second, many good and able barristers who would make excellent judges will not be prepared to submit themselves to an appointment system like this one which might require them to tailor their CVs and adapt their performance at interview, etc.

Why is the Attorney General in the filtration process? Are we to take the Government at its word when it says its objective is keep politics out of this as far as possible? The Attorney General is on the filtration committee of the appointments commission. The names of the three people selected go forward to the Cabinet are again faced by the Attorney General. If Deputy Jonathan O'Brien was correct in what he said last night about the legal expertise or lack thereof in the current Cabinet, and I have no doubt that he was, then the Attorney General will have enormous powers. If the intention is to keep all this as far away from politics as possible, why then have the Attorney General on both the final selection committee and the filtration committee? I hope Deputy Jonathan O'Brien will bear that in mind when he is drafting his amendment.

It is in the draft already.

The Government legislation is constructed in such a way that only three names will go to Cabinet. The Government explained to us last week that its interpretation of the legislation is that the Cabinet can appoint one of those individuals or else completely ignore all three of them.

What Deputy O'Callaghan proposed was that the three names be ranked in order of merit and that if the Government bypassed those three names, it would have to give a reasoned explanation as to why it did so. If the Government's interpretation of the law is correct and it has the ultimate power, and if we want to introduce a system that will work as well as possible and ensure the Government does not ignore it, then we must ask ourselves one question. Which system puts more pressure on the Government? Is it a system under which it just gets three names and can bypass them without any explanation or a system under which it gets three names, ranked in order of preference, and it has to give an explanation if it bypasses those three names? The latter is an infinitely preferable system and an amendment along those lines would make the Bill much more workable.

The other proposal I object to is the one to exclude former judges from the commission. It takes 15 years to remove the taint of lawyership but once one serves as a judge, one is irredeemably tainted. People like Mr. Justice Nicholas Kearns and Ms Justice Catherine McGuinness are irredeemably tainted. There is no chance at all that they could ever become members of this exalted commission.

Last night the Minister for Justice and Equality came some of the way in terms of appointments to the District and Circuit Court. He said that there is an amendment that will enable the presidents of the District and Circuit Court-----

That is not true.

He indicated that, or at least that is my understanding from media reports this morning.

That provision is already in the Bill.

Okay, that is already in the Bill. That is fair enough. The Minister pointed out that it was in the Bill but that provision is not enough, in my view. The presidents of the District and Circuit Court should be full and permanent members of the commission. Theirs are the courts that interact with the public the most. They do most of the legal business in the country. We are talking here about ordinary people and those courts are the ones that deal with the vast majority of ordinary people every day. I strenuously object to the spin around this. The initial intention of the Government was not to include these people in any regard. The spin was that if they were on the commission, they would pick their pals and their friends. It was portrayed as part of the insider philosophy again, but anyone who has the slightest idea of the function of the presidents of the District and Circuit Courts will know that a lot of their work is administrative. They have a huge administrative burden of work. They must keep the case list up to date and ensure the system works efficiently. We all know that in many walks of life, not just in the Judiciary, but in business, Departments and so forth, people who, with the best will in the world, try to manage their areas of responsibility effectively can often come a cropper or be let down by their subordinates failing them in some way. In that context, the presidents of the Circuit and District Courts would have a vested interest in looking for the best possible candidates. Anything else or any objections to that point are just spin, quite frankly.

I want to turn to sections 32 to 34, inclusive. We went through a period in this country when we were very heavily critical of quangos. Quangos have their role but there is no doubt we created too many of them. There was a massive movement to create a huge bonfire of quangos in this country. That movement came not just from within this House and within the political system but from outside too. The Minister for Transport, Tourism and Sport, Deputy Ross, who has just left, was foremost in that regard. He led the posse in condemning quangos and all their work and pomp, but sections 32 to 34, inclusive, which are the brainchild of Deputy Ross, create a big, fat, massive new quango. These sections create something called the judicial appointments commission office with its own director and staff who will be paid for out of public funds. They will be paid for by the taxpayers. This will be another self-perpetuating oligarchy. The function of this new office, with its highly paid director, its full-time, permanent, pensionable Civil Service staff and all the supports and panoply that will accompany it, will be to supervise the appointment of between 15 and 20 judges per annum. That is what this new office is being set up to do. I would imagine that the civil servants who will be serving this office, which will no doubt self-perpetuate and grow, will be searching around for things to do to make themselves relevant. They will have plenty of time on their hands. Perhaps they could be temporarily assigned to the social welfare offices in Donegal to ensure people do not have to wait for five or six weeks for maternity benefit. It is hugely ironic that the scourge of the quangos, the former newspaper columnist, Shane Ross, should be the progenitor of this particular quango, the creation of which we will live to regret.

I made a fatal mistake last Monday morning. I fell for one of the oldest tricks in the book, namely, a newspaper headline. I was listening to "Morning Ireland" at around 7 a.m., and in the part that deals with what it says in the papers, a headline from The Irish Times was quoted and I wrote it down - Flanagan will not bow to Ross's demands on the Judiciary. I was highly excited. I jumped out of bed immediately and went to the nearest shop to buy The Irish Times, which I would not usually buy, to read the article. I said to myself, "My goodness, common sense at last. This man Flanagan has the backbone. I always thought he had the steel. He is going to stand up and make sure that the right thing is done." I must say, my enthusiasm waned as I read through the actual story. Ironically, we have now come full circle. We now learn that, technically, the headline was correct. Deputy Flanagan did not bow to Deputy Ross's demands. He rolled over, with all his paws in the air, his stomach ready for tickling, and he swallowed the whole contraption. This is a bad Bill and it will do a lot of damage. I urge the Minister to go back, redraw it and come back to the House with something sensible.

There has been an enormous amount of talk about this particular Bill. Certainly any changes to any part of our liberal democracy need to be made in a measured, thoughtful and educated manner, but this Bill is extremely limited in its scope. While it is flawed in places, it only makes marginal improvements to the system.

No one in this State should be immune from analysis or constructive criticism. All of us, whether we are on the Supreme Court or walking the streets of Dublin, are equal citizens of this State. Obviously the legislative branch of the State has a responsibility to discuss the Judiciary in a fair and measured manner, but if we have learned anything from the last 50 years, it is that undue deference is the enemy of critical analysis. No one should be immune from respectful, decent critical analysis, no matter what role he or she plays in the State. It is interesting that this week Fianna Fáil is on its high horse about critical analysis of the Judiciary when it spent all last week criticising, in a personal way, one individual judge for its own political reasons.

The cornerstone of a functioning democratic justice system is an independent and impartial Judiciary which is representative of the community as a whole. That last phrase, "representative of the community as a whole", is critically important. Political parties, and none more than my own, have spent a good deal of time in recent years making sure that elected representatives are truly representative of the communities they serve. Indeed, legislation was passed by the previous Dáil to make sure that we have far more representative levels of people standing for election. There is a flowering of diversity in this State at the moment. Very few, if any, Members of this House would argue that this diversity is not a developing strength of this State, but it is not reflected in many organs and branches of the State. It is certainly not reflected in the Judiciary, and as a result, it is fair to say that the Judiciary is out of sync with the people it currently serves.

Every system within the State is dependent upon its inputs. Our own systems, for example, are dependent on our inputs.

Our physical systems are dependent upon the diversity of food we eat and are healthier as a result of that diversity. Our minds are healthier if inputted with a large diverse element of thought and influence. If the inputs of a system are made up of the system itself, it is very difficult to introduce change. However, if the inputs have diverse origins, there is no doubt that after a while the system will start to reflect those origins.

We are strongly of the view that there needs to be a step-change regarding the diversity of our State, Legislature and Judiciary. It is clear that this will not happen under the current system. The system from which it originated does not have the necessary inputs. Change will only happen if we inject more diversity into the appointments process. Over the years, there has been a fair amount of unease among the general public regarding the level of political influence and control over this process. That is a logical concern.

We live in a State that has been cursed with political nepotism throughout most of its sectors. The political machines of Fianna Fáil, Fine Gael and the Labour Party have, in reality, been built over the years on the basis of political leftism. In many ways, nepotism was created in order to repay those who put their shoulder to the wheel and contributed to the growth of those political organisations. Political nepotism is also designed for another purpose, namely, seeking to ensure that the agendas of the political operators exist in those spheres long after Governments have lost office. It is a way of controlling the development of any sector of society long after people have left office. In America, we see that in the most obvious fashion whereby presidents rejoice at the opportunity to name Supreme Court judges because they can orientate the court to a particular view for 20, 30 or 40 years. We have a responsibility to eradicate this influence from all sectors of our society. We should use every opportunity to do so, and this is such an opportunity

Tá sé rí-thábhachtach go mbeadh muinín ag an bpobal as na breithiúna, go bhfuil lucht an dlí neamhchlaonta, fuarchúiseach, fairáilte, agus go n-ainmnítear iad sa mhodh céanna. Is daoine daonna iad na breithiúna, na habhcóidí agus na dlíodóirí agus is cinnte go ndéantar cinntí atá claonta agus comhghleacaithe i gceannas ar phróiseas ainmniúcháin. Is gá go mbeadh córas i bhfeidhm a laghdaíonn an tionchar polaitiúil agus an tionchar pearsanta maidir le ceapacháin bhreithiúna.

It is also interesting to identify the origin of most of the resistance to this particular change. The champions of the status quo at this stage seem to be those who are themselves on the inside. Based on media comments, one would swear that the expertise of the Judiciary is being deleted from this process. That is not the case. The Judiciary and the legal profession will still have a significant role in respect of the development of the process. We have an opportunity to inject diversity of thought and influence in a big way into the process. We should grasp that.

Tá an páirtí i bhfabhar an Bhille seo, ach tá fadhbanna leis gan dabht. Ní aontaíonn muid leis an tslí atá sé á chur tríd na Dála, agus an deifir atá leis. Is muid ag caint maidir le rudaí mar seo, ba cheart go mbeimis ag díriú ar na mionsonraí ionas nach mbeimid ag filleadh chun an Tí sna blianta atá romhainn de thairbhe na deifre sin. Bí cinnte de go mbeidh mo chomhghleacaí, Deputy Jonathan O’Brien, ag iarraidh athruithe a chur leis an bpróiseas ionas go mbeidh Bille i bhfad níos fearr againn. Ba cheart go mbeadh smaointe na ndaoine – diversity na ndaoine – i lár an phróisis.

I wish to share time with Deputies Thomas P. Broughan and Maureen O'Sullivan.

I welcome the opportunity to contribute to this debate. An essential ingredient of a properly-functioning democracy is an open and accountable system that allows for the appointment, promotion and transfer of judges based on merit. That such a system is still lacking in Ireland begs the question as to who was responsible for this. It is clear that the problem lies not with the Judiciary, which has been much lambasted in the Chamber. In fact, the Judiciary has repeatedly asked for the system to be changed. It has repeatedly pointed out that:

As a matter of principle, political allegiance should have no bearing on appointments to judicial office. Early acceptance of the principle is essential to the transformation of the appointments process ... It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system.

The system of judicial appointments in Ireland is by now demonstrably deficient, fails to meet international standards of best practice and must be reformed. In addition, the Irish Council for Civil Liberties, ICCL, has highlighted the need to establish clear and transparent merit-based selection criteria in consultation with relevant stakeholders including civil society. The Free Legal Advice Centre, FLAC, has highlighted the lack of transparency which over the years has given rise to fears that some of those appointed to judicial office may owe their appointment to their connections. We know that is true in at least a third of the appointments. International and European organisations, including the UN and the Council of Europe's anti-corruption group, have also raised concerns. It is worth noting that it has been pointed out that, once on the Bench, judges in Ireland enjoy much respect for being highly-qualified professionals with a high degree of integrity in their work and performance. However, the system is, rightly, perceived as being politicised.

If all of these groups - I have not given an exhaustive list – have continually asked for change, why has it not occurred? Indeed, how have we come to a situation in the Dáil where we now condemn the Judiciary? We are rushing through a deficient Bill, ostensibly as the result of another debacle in respect of the appointment or promotion of another Attorney General to higher office. This is being done because the narrative suits to deflect attention from the repeated failures on the part of successive Governments to take action. That lack of action was not accidental but, rather, reflects the strong stance of this and previous Governments of their wish, desire and stance to retain political patronage in the appointment of some judges, right up to the appointment of the Attorney General recently to a higher court. It is a system that was ensconced in secrecy and totally bypassed the existing legislation.

Each Government, including the current one, has failed to introduce what is a lot more urgent, namely, a judicial council or other appropriate mechanism to deal with judges who act inappropriately or misbehave. The absence of any mechanism other than impeachment means that there is currently no means by which matters of judicial misconduct which fall short of stated misbehaviour may be dealt with, except in respect of the District Court.

Given this background, and the continued reluctance of each Government to legislate, I can, to a certain extent, understand why the Minister, Deputy Ross, came forward with his proposals to introduce a more accountable system. However, the introduction of the Bill in this rushed manner is entirely unacceptable and would appear to be the result of a deficient compromise so that the Minister had something when he walked out the door of the Cabinet room and the Government got something in appointing the Attorney General. It is a poor substitute for what is really necessary.

I have serious concerns about the Bill. Circuit Court and District Court judges are not represented.

There is no clear rationale why the Chief Justice should not be chair. I have no problem with lay people being on the commission. It is a very good addition. Nor do I have a problem with a majority of lay people, but I have a problem understanding the reason the Chief Justice should not be chair. Diversity is not defined. Best practice has been bandied about. For example, the Minister has chosen to cite England, Wales and Scotland. Northern Ireland has a different system. The Chief Justice is in charge, and over 70% of all Commonwealth countries have the heads of the court as chairs.

I welcome that diversity has been enshrined in the Bill. However, that is simply with regard to appointment of judges. Section 7.7 on diversity and gender has been removed as being important regarding nominations to the commission. There has been no cost analysis of the current system as opposed to the new system. It would seem a new quango has been brought in with no business case being made or no examining of the cost of the existing system and a comparison being made. The Minister has not examined the existing system which is deficient. It has produced annual reports. It has continuously, for example, made a recommendation in regard to a medical examination for somebody who has been appointed, but that has never happened. The Minister has continued with the system in this Bill whereby the Attorney General is on the commission in spite of the fact that the Irish Council for Civil Liberties and Free Legal Advice Centres, FLAC, among others, have asked that this not go ahead.

In addition, diversity has been much championed here by Members on behalf of this Bill. There is no way we will get diversity in the Judiciary unless we look at those going into the legal schools and into the universities. In England, a judicial diversity panel was set up seven years ago to advise the government, specific recommendations were made and they acted on those. Nothing like that has happened here. The Government still retains the power, as is right, under the Constitution. However, it is an illusion that we will remove Government patronage. There is no necessity here to outline precisely why the Government might not go with the nomination that is coming forward and the Attorney General is on the commission.

While I welcome in principle that merit is being enshrined into the law as the way forward for promoting and appointing judges, this is, mar a dúirt mé, sop in áit na scuaibe. Tá gá le díospóireacht oscailte chruinn sa Dáil agus gan dul ar aghaidh sa bhealach seo - ag cur an Bhille tríd an Dáil ró-sciobtha mar gheall ar ghealltanas atá déanta ag an Rialtas don Aire. Go raibh míle maith agat a Chathaoirligh.

I am coming to this Bill from a non-legal background, unlike my colleague, Deputy Connolly, and as one of those dreaded lay persons who seems to be causing alarm around the place. I believe in fairness and justice, not a theoretical justice but a justice that is seen to be done.

I listened to the Minister's speech yesterday and I liked much of what he said. I want to acknowledge some of those points, namely, that it is vital that we have an impartial administration of justice because that is central to democracy. There is a need for confidence in the administration of justice in Ireland. That means transparency in the process of judicial appointments. There is also a commitment to the independence of the Judiciary. The new procedure will reflect best practice in selection methods and processes internationally. It is a progressive approach to reform and an objective that membership of the Judiciary should comprise equal numbers of men and women and also reflect diversity within the population as a whole. On the aspect of merit, the recommendation and selection process should focus on merit, not as a guiding principle but as the criterion to underpin selection and recommendation of persons for appointment. I also welcome the opening up of eligibility arrangements for District Court judges and legal academics. The Bill recognises that knowledge and experience of court practice is an essential qualification. I also welcome the idea that there will be a review after five years, although I would probably have preferred it after three years.

There is nothing in that for me to disagree with but where I take issue is the manner in which the Bill is being taken. We have a process which is working through the justice committee where a somewhat similar Bill was being discussed and where amendments were also being taken. I do not like the idea of the Bill coming into the Dáil in this manner here at the expense of other Bills that were to be discussed before the summer recess and are now being pushed further back. It also comes out of an unsavoury appointment of the former Attorney General to the Court of Appeal. I have heard the arguments on the legality of that but there are ethical considerations and certainly the process that was in place was not followed. We still do not know if the Attorney General applied, we do not know about the other applicants and it is appalling to think a candidate for a position would remain in the room when that appointment was being discussed. The Judicial Appointments Advisory Board seems to have been completely ignored; it was certainly relegated to a very minor role. It is difficult to accept that there are good intentions with this Bill when it comes from such a disturbing and a disquieting background. It is undermining what is fair and sensible in this proposed Bill. There was a missed opportunity in that the Bill did not follow the normal pattern of Bills in the Dáil and while this is about due process, there is a lack of due process with this Bill and also in the appointment of the former Attorney General to the Court of Appeal.

The Minister, Deputy Flanagan, mentioned the quality, diligence and integrity of the Judiciary to date. While that is probably true of many of the Judiciary, there are examples of lack of quality and also a lack of diligence. There have been notorious and infamous cases of judges who were sadly lacking. I refer to the historical case of a judge who slept through the proceedings of that particular court. We have had cases of decisions in court that defy logic. In cases of sentencing, they err on the side of leniency in some cases and err on the side of severity in others and there have been cases where judges have been extremely disrespectful to juniors and to gardaí, undermining them in court. Judges can say what they like in court and the person is not there to defend themselves, to answer or to challenge what is being said.

I know the controversy this Bill is causing but I am taking my opinion on this from the comprehensive paper from the Library and Research Service. In December 2013 the Department started a consultation process and we know there were detailed submissions on this matter by the review committee, the Judicial Appointments Advisory Board, the Law Society, the Bar Council, the Free Legal Advice Centres and so on. The Minister said that "Much of the content of Bill reflects the outcome of that process".

I also note the Council of Europe's anti-corruption group have highlighted the integrity in the work and the performance of judges but that the current system of recruiting is widely perceived as being politicised. Current appointments were susceptible to political lobbying and favouritism. We know there are reports showing no evidence of political affiliation or views in court decisions and in that respect I quote: "Political bias in judicial decision making could not be found". However, it is wrong that one can point to a judge and say that is a Fine Gael appointed judge, that is a Labour Party appointed judge or that is a Fianna Fáil appointed judge, where there was some party affiliation in order to secure the appointment. For that reason alone, this Bill is very important in order that the most qualified and the most suitable candidate gets the job in a transparent way where there is no political influence at all. The judicial appointments commission is absolutely essential. It will have 13 members with a lay chair and a lay majority. I do not understand the fears of some judges about this lay aspect but then this is a new scenario for them. I note the Law Society welcomes the lay majority while the Bar Council opposes it. Regarding the lay aspect, there is a comprehensive list regarding suitability to be a fit and a proper person and there are grounds for disqualification and ineligibility. Legal academics could make excellent judges provided their judgments are not based solely on the legal framework but that they can take other aspects into account and apply common sense also because common sense is very underrated by a number of judges.

I advise the Deputy of the time element.

Deputy Broughan will have five minutes in this time slot.

I note the comment of a former judge that the proposed Bill is like a group of judges selecting an Irish football team. I have seen much criticism of Irish football teams down the years. The football experts do not always get it right. Perhaps a judge with knowledge and a love of game might just make good choices for the team. Judges only appointing judges does not inspire confidence.

I do not see the Bill as having serious implications for the administration of justice. It has serious implications for the current status quo in the appointment of judges. I imagine that the new commission would work in a collegial way, work through consensus-building and not in a confrontational "them and us" sort of way. I have heard the point that the judges are the most qualified to make judicial appointments because they know the applicants but in any other job or profession knowing the applicant would involve the interviewer acknowledging that and sometimes removing themselves from the interview process. Judges, like all us, are flawed human beings and, like all of us, they can make mistakes and they will have their own bias.

What is being proposed, albeit I do not like the way in which it is being done, is a transparent process with no self-appointing or no self-regulating. With a genuine interrogation of the Bill, I believe the issues can be resolved. Too often justice is perceived to favour the wealthy, the well-connected and the well-resourced.

The balance of justice always seems to favour certain groups in society. I hope this Bill might see an end to that.

I am delighted to have a brief opportunity to speak on the Judicial Appointments Commission Bill. I welcome the general thrust of the Bill before us today, which provides for the establishment of a judicial appointments commission, but like many of the constituents I represent, I believe the process of the recent appointment of the former Attorney General, Ms Máire Whelan, to the Court of Appeal was grossly defective and unfair to other qualified and interested judges and lawyers. Once again, in this, as in so many other controversies, the Fine Gael Independents, led by the Minister, Deputy Ross, failed to uphold the public interest.

As I mentioned in a contribution on reform of the legal system in the previous Dáil, the legal system we inherited almost intact from the British in 1922 represented the most vested of vested interests whose key role was, and often is, to maintain the power and property structures of the wealthy elites who controlled our society and economy and whose dominance continues down to our own era. For example, the medieval division of the legal profession into solicitors and barristers and the control of legal education by the guilds representing these phony professional divisions have never been challenged by Fianna Fáil and Fine Gael-led Governments. The manner in which so many prominent politicians and party members with a legal background have ended up on the Bench in the decades since 1922 is also astonishing.

At the outset, I want to welcome section 64 of the Bill on the prohibition on canvassing, which in subsection (2) lays down that "An applicant shall not attempt, and shall not procure or counsel another to attempt, in either case whether directly or indirectly, to ... canvass, from any person involved in the process, support for the application of the applicant". The penalty for such canvassing or improperly influencing or interfering with the process of selection shall be on summary conviction a class A fine, but given allegations of canvassing over the years, perhaps that penalty should be much stiffer and could be looked at again.

When I was a member of the Committee of Public Accounts in this Oireachtas on two occasions, I often raised the outrageous cost of justice, the lack of accessibility to justice for huge cohorts of our population and the narrow, wealthy social strata from which lawyers and judges have traditionally come. I am afraid that the Judicial Appointments Commission Bill will do little to address the wider continuing serious problems with our judicial system, even if the selection of judges becomes slightly more transparent and democratic.

I acknowledge the impartial and excellent discharge of justice by so many judges over the years and, in particular, the skill and integrity with which judges and leading lawyers have led investigations of great scandals in our society, especially in the past 25 years.

Section 12 in Part 4 of the Bill provides for the breakdown of the 13 members of the judicial appointments commission. There have been mixed reactions to the number of lay members and the fact that the commission would have a lay chair. The equivalent commissions in England, Wales and Scotland are chaired by lay persons, but there is also an issue around the independence of the Attorney General given that that person would be a member of the Cabinet.

The Minister, Deputy Ross, has trumpeted the lay majority and lay chairperson, but in Part 3, sections 9 to 11, inclusive, have the Minister, Deputy Ross, and the Fine Gael Independents not buckled under pressure from Fine Gael and its cadre of supporters in the Law Library? Part 3 outlines the creation of the commission's appointment committees, which are a key element of the Bill, for the Supreme Court, the Court of Appeal, the High Court, the Circuit Court and the District Court. Each of these committees will have 11 members and while it will have a lay majority, the Chief Justice and the presidents of each of the divisions will clearly have a major role in selecting lawyers and judges for vacancies in each division. The Minister, Deputy Flanagan, reiterated in his contribution last night that the Chief Justice should be directly involved in the selection and recommendation of persons for appointment and that she and all the presidents will form part of the key decision making process in selecting and recommending persons to the relevant court. The Minister also reiterated that these relevant committees will actually perform the functions of the commission in the selection for each of those courts. In effect, the structure of those committees tends to water down what seemed to be the original premise of the Bill.

Section 7 in Part 2 provides for recommendations to be based on merit, but no definition of "merit" appears in the Bill. Another omission is a definition of "diversity" in the Bill. Section 7(2)(b) states "the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole". Why not insert in the Bill that the commission must collect and collate statistical information on applicants? The information could then be used to inform strategies on encouraging under-represented sections of society to consider a career path to the Judiciary. Recently, women became the majority gender among solicitors, which is a very welcome development, but that must be reflected in the Judiciary.

It is a pity we did not have the judicial council Bill to deal with first because we could have teased out some of the issues that affect us and about which our constituents at times feel so angry in terms of the discharge of justice in this country. The outpouring of public anger at the recent collapse of the Anglo Irish Bank trial was often summarised in the refrain many of us heard that there continues to be two systems of justice in this country.

With all those reservations, I recognise that the Judicial Appointments Commission Bill represents a tiny step forward in a more democratic and transparent judicial appointments system and for that reason, I will reluctantly support it.

I support the Bill. I believe it is a modern, progressive proposal. I would like to see its passage take place as quickly as possible. I would find it regrettable if any efforts were made to hold up this important legislation for either party political or personal reasons. As legislators, we have a duty to the people who put us in this House to ensure this very important legislation is facilitated in every way possible and pushed forward.

I will mention one or two minor aspects of the Bill. I very much welcome the notion of having a lay majority and a lay chair. It is the modern way of looking at appointments in any area. It stretches credulity to believe it is not possible to find somebody in the entire country who could chair such a group. We have an opportunity now to bring the process of judicial appointments into the 21st century. The Bill is balanced and fair. We should do everything, as legislators, to ensure its speedy passage through the House.

I understand the purpose of the Judicial Appointments Commission Bill and I welcome the fact that the Bill fulfils another objective of A Programme for a Partnership Government. I am aware, however, that a number of aspects of the Bill have received a great deal of attention, both inside and outside this Chamber. In particular, I refer to the membership of the new judicial appointments commission proposed by this Bill. While I must make clear that I have no issue whatsoever with lay members serving on the commission, I believe there must be greater discussion on whether lay members should have a majority on the commission. I would go so far as to say that in the time remaining to debate this Bill, even with the pre-legislative scrutiny of it by the Joint Committee on Justice and Equality, of which I have been a member for six years, further discussion should take place.

Furthermore, I have concerns regarding the chair of the commission in that the Chief Justice would not be chair. My main issue in that regard is that, as everyone in this House would know, the Supreme Court is the highest court in the land and has the final say in terms of the interpretation of the law in line with the provisions of our Constitution. I believe we cannot, and should not, implement any legislation that may detract from the importance of the Supreme Court, which is a branch of our democracy, in undermining that role in any practical way or in terms of public perception. On that basis, I am not convinced that it would be appropriate for any person but the Chief Justice to be the chair of the judicial appointments commission, given that we must ensure the authority of the Chief Justice and the Supreme Court is not detracted from in any way with regard to public opinion.

While there may be many examples of a lay chair on such boards, examples alone do not necessarily mean that such provisions constitute international best practice. That has been borne out in this debate by the examples given of other jurisdictions aside from those introduced in the Chamber during Leaders' Questions yesterday.

This is a matter that will require further and more thorough discussion. As a member of the justice committee, I look forward to the detailed debate on the provisions of this Bill when it comes before us in the near future. I must clarify that I believe lay members should be involved in the judicial appointments commission, and it is of the utmost importance that their views carry the same weight as those of other members of the commission. Perhaps we could better examine how such a commission would work with an equilibrium involving lay members and those from a judicial background, or those from lay and non-lay backgrounds, ensuring that neither group has a particular majority.

It is essential in this debate to note that this Bill in no way constitutes a criticism of the Judiciary. Sadly, however, the narrative proffered by some suggests otherwise. We have separation of powers in this country, which is essential to having a functional and effective democratic system. One of the main questions that arises in the context of this Bill is that of why it is necessary, particularly when neither the independence nor the calibre of our judges has been called into question. That has been repeated on a number of occasions in this House. If there is a desire to amend the arrangement for carrying out judicial appointments, why do we not simply amend existing legislation? Why do we not update it given the review that the Department began in 2014? As a member of the justice committee, I have never seen any output from that review. I have never seen any documentation presented to the justice committee or proffered for discussion in this House since the review began. One of the most favourable attributes of our country in recent years has been the ease with which business can be conducted. One of the main issues with regard to the ease of doing business is access to justice and decisions of the court. While there are delays from time to time, there are never any questions as to the decision-making process or the independence of those who make the decisions.

What is rather troubling, however, and what should be tackled as a matter of utmost importance, is ensuring the general public has access to justice. That requires the appointment of more judges to ensure our courts can operate effectively. If any Member in this House contemplated holding our justice system to ransom by preventing the appointment of judges, he or she would be holding the public interest hostage by preventing those who require the assistance of our courts from gaining access to them. This is reflective of remarks made to me recently by an eminent children's rights lawyer who found that accessing the courts system to assist children in foster care is becoming increasingly difficult. The needs of the most vulnerable in society must be the foremost concern of Members of this House, not grandstanding.

This Bill proposes reducing the number of candidates recommended to the Cabinet from seven to three. This is a positive attribute but again I must revert to the possibility of amending existing legislation to do this. I prefer the focus this affords the Cabinet in scrutinising a candidate properly in making its decision.

Section 7 focuses on merit. While Deputy Broughan stated the detail on what constitutes merit in the section is weak, we have a number of weeks in which we can bolster it. I look forward to Deputy Broughan putting forward amendments in this regard on Committee Stage. As I stated, the recommendation to include the merit of persons appointed to judicial office under section 7 is all well and good but it must be stated not every member of the Judiciary would not be in place if they did not merit being there.

The quality and calibre of our Judiciary must not be called into question, nor should there be any reason they should be. While I understand that changes are required to update the process by which judges are appointed, I am not convinced this is the most effective way to make such changes, considering the time remaining in the current Dáil term and especially when there have been no instances, to my knowledge, in which the integrity, independence or calibre of the Judiciary has been called into question.

If the Minister is so committed to pushing this legislation through the House, we must give serious consideration to the inclusion of a judicial council amendment. That is probably of more importance to the Judiciary and Members of this House than an attempt to suggest that this Bill will change the manner in which members of the Judiciary are appointed. I remind Members that this is covered in the Constitution. Unless the Minister wants to hold a referendum to delete the relevant provision, I believe an amendment in such regard would be of benefit.

The narrative in terms of criticising the Judiciary is an extremely populist one and it must not be accepted. I have heard a number of comments made both yesterday and today that the Judiciary is in some way hell-bent on meting out justice or on making inappropriate remarks to members of the public, as was just proffered by Deputy Maureen O'Sullivan. Such commentary is neither appropriate, fair nor true.

The system by which we currently focus would not be abnormal in a common law jurisdiction. While I agree there should be some reform, I believe reform for populist purposes or political grandstanding with regard to our justice system would signify nothing other than blatant disrespect for the very people we represent and, of course, past and present judges in terms of ensuring access to justice for those who need it most.

The d'Hondt system is generally very beneficial in allowing Members from all parties and none to join significant Oireachtas committees. All are significant but in this context the justice committee takes particular priority. As I said yesterday evening, a majority of members of the justice committee are opposing this Bill. Thus, I suspect it will most likely be significantly amended on Committee Stage. There does not seem to be willingness on the part of certain parties to change the nature of the Bill, which willingness would afford the Government side and the Chairman of the justice committee an opportunity to weigh in to this Bill in a more meaningful way.

I wish to revert to my very first point, on the progress on the programme for Government. I understand the Taoiseach said yesterday that he believed it was possible this Bill may not be passed before the summer recess on the basis that Members may require additional time to discuss, debate, amend or improve it. While I fully understand the political imperative of the Minister for Transport, Tourism and Sport, Deputy Ross, in particular, in pushing this Bill through before the summer recess, I believe there are very few Bills that warrant being pushed through at such a pace. This Bill should not be rushed, nor should it be guillotined or passed without a great deal of amendment, not just to improve it or comply with the views I and others have expressed but also to ensure it is not a bad Bill, to echo Deputy O'Dea's comments. I do not believe it is a bad Bill; I believe it just does not comply with what Deputies O'Dea, O'Callaghan and others wish to proffer in this House. Nobody is suggesting, I hope, that it is not a good legal Bill; it is just not sitting well with the ideological views of the party opposite. I ask that the language in question not be used because it suggests the legislation we are putting forward is somehow inappropriate or creates legal difficulties. I do not believe it will create legal difficulties. It is going to create ideological difficulties which in the main I appear to share with Members opposite.

Having served under the current Minister of State, Deputy Stanton, when he chaired the justice committee in the last Dáil and as somebody who has taken a keen interest in all matters regarding the Judiciary and the much discussed Legal Services Regulatory Authority and the Act we worked on extensively in the last Dáil, it is very clear to me that there are priorities in the Department of Justice and Equality that do not include this Bill.

As a first-time Deputy, I had great hopes for this so-called new politics. I am disappointed, however, that one Minister can hold the Government over a barrel in return for his support. I am also disappointed in what he has made a priority when there is much more going on. If I were in his position, there are many other matters about which I would hold the Government over a barrel.

It has to be agreed that the separation of powers is of paramount importance and provision is made for this in the Constitution. However, there is no doubt that reform of judicial appointments is necessary and Fianna Fáil is obviously in agreement with this. In fact, it was highlighted by Fianna Fáil with the introduction of our Judicial Appointments Commission Bill in October 2016.

As stated previously by my colleagues, the Fianna Fáil proposal provided that 12 appointed members, comprising five judicial members and seven non-judicial members, would make three recommendations to the Government, ranked in order of merit. Given the experience of such members, they are obviously best placed to make these recommendations. A majority of lay persons would provide little or no assistance to the Minister for Justice and Equality, or the Government, and could not possibly inspire confidence. Any recommendations made do not have to be accepted by the Government. In that regard, Fianna Fáil believes that greater authority should be provided to the commission to ensure there is no doubt that the nominees presented are understood to be the best persons for the position based on their suitability for the job.

By contrast, the Government’s approach to this matter beggars belief. Its blatant disregard of the Judiciary is nothing short of disgraceful and would not be tolerated in any other profession. It is an unashamed and unexplained put-down of the Judiciary. For what? Is it to simply appease one member of the Government? What amazes me is the big push this Bill is getting, particularly when more pressing matters need to be dealt with. What about the health crisis, housing shortages, cyber attacks across the world and yet another further attack on rural Ireland with the loss of counter services in approximately 100 Bank of Ireland branches nationally, including this week in the Cork South-West constituency in the Dunmanway branch? These are the matters directly affecting the people now. How is it that the Government is in a position to rush this Bill through the Dáil when more urgent matters, as pointed out by me previously, are left on the long finger?

What is even more alarming, but not surprising, is the fact that Sinn Féin is in favour of this Bill. When has Sinn Féin ever been in favour of accommodating judicial appointments in any respect? Maybe it is a sign of a future coalition between Fine Gael and Sinn Féin. Will the Minister reconsider this Bill’s contents to ensure the best placed people are recommended to the Government by the people best placed to recommend them?

The fact the Government has allowed one Independent member of the Cabinet to railroad his agenda when there has been poor legislative progress over recent months shows contempt for this Parliament and what we know as new politics. There is also the duplicity of the Minister for Justice and Equality texting his backbenchers to undermine this Bill in the Chamber while he claims to support it. This is a Bill which has the support of one member of the Government, Sinn Féin and Fine Gael to keep itself in power for as long as possible. The Minister needs to examine those supporting this Bill. Sinn Féin is an expert in constitutional crisis and not a responsible party like Fianna Fáil.

We have significant problems with this Bill, as has been outlined by my colleagues. Putting a lay majority and a lay chairperson on the commission is populist, appeasing those who are significantly disillusioned with politics and with Parliament. It does not do the right thing for selecting judges, however. If the Chief Justice was appointed chairperson of the new judicial appointments commission, he or she would have the knowledge and experience to provide oversight and the necessary competence. To install a lay person as chairperson, whose competencies we are not sure about, undermines the commission.

The fact the Government has tried to schedule Committee Stage before the passing of Second Stage also undermines the Oireachtas. Today, the Select Committee on Justice and Equality decided not to allow the Government, the Minister for Justice and Equality, and the Minister for Transport, Tourism and Sport, Deputy Shane Ross, to railroad this Bill and will not be scheduling Committee Stage next week. For such a significant process to be undertaken in such a short time is an attempt to guillotine the legislative process. Even those who have tacit support for the Bill recognise it requires further scrutiny, debate and oversight. While it might give Fine Gael a headache in advance of the summer recess, it should spend the recess examining the Bill and how it undermines the process of judicial appointments.

The Judiciary, too, has commented on and intervened in a public way on this legislation. While some commentators have said it is an attempt to intervene and interrupt the separation of powers as set down in the Constitution, I have respect and high regard for all senior members of the Judiciary. That they have acted in such a public way to give a real warning to the Government shows there are considerable problems with this legislation. It also undermines the framework that should be set out into the future. The fact the Judiciary has intervened shows we must have further debate and oversight of this Bill.

If this were a selection process for a hospital consultant or junior doctor, one would not have a majority of people with no knowledge or experience in that area deciding on and chairing the process. Deputy O’Callaghan’s judicial appointments Bill ensured there was a spread of lay people from civil society and important groups. However, this Bill throws that away. We do not even know what the lay members’ agenda might be. It is all very good saying in the abstract that a lay person will chair a process to select judges. Who is this lay person? What is their background or political or personal experience? We know the Judiciary attempts to uphold the law, the Constitution and select the best people for the various levels of courts. Who is this lay chairperson? It is an agenda of the Minister, Deputy Ross, which has lasted several years and which is more about undermining politics than reforming the judicial appointments system.

It is about trying to undermine political parties, which try to uphold sensible, constructive and responsible legislation, and trying to construct this demigod or demigoddess. Who will select the laypersons? What will be their backgrounds?

It will be the same as jurors.

Jurors decide on the facts of criminal prosecutions; they do not review the competencies and experience of judges.

They will be selected by lottery.

Please allow Deputy Jack Chambers to continue uninterrupted.

The Fianna Fáil Bill has been ignored for seven months. It passed Second Stage and the Department of Justice and Equality has failed to allow it to proceed to Committee Stage to at least provide parallel oversight and a parallel process to be undertaken in order that the best aspects of both Bills could form the best legislative measure to reform the judicial appointments process.

We all agree that politics needs to be removed from judicial appointments but the issue of intervening and creating a political aspect to this was seen in the recent appointment of the former Attorney General, Máire Whelan, to the Court of Appeal. The Government claimed it is steadfast in reforming judicial appointments while, at the same time, it threw its own Attorney General under a bus by removing her from her position. If she had the competence and expertise, why was she not left in her position? Why was she removed? It was politically expedient to appoint her to the Court of Appeal and then move the agenda on to the reform of the judicial appointments process and throw it back at Fianna Fáil. My party made errors in the past in this regard but we want to reform and depoliticise the process. The best way to do that is put the Chief Justice, the independent arbiter of our legal system, in the chairperson's seat with a spread of representatives from civil society on a new judicial appointments commission. That has not been done in the Bill. I assure the Minister of State and others that we will not allow the Government to railroad it through the House. The Joint Committee on Justice and Equality has taken that decision. The Government, therefore, will have time to reflect on the flaws in its Bill.

The programme for Government refers to "a transparent, fair and credible reform of judicial appointments" and this legislation is anything but that. How can a transparent process be ensured if we do not know who will be the members comprising a majority on the commission? There will be a public appointments process but we are not sure who the appointees will be, what their agenda will be or what judges they will select. If anything, the Government is opening up the possibility of this becoming a more - not less - political selection process for judges. The best person to ensure a non-political selection process is the Chief Justice in the role of chairperson, as we have outlined.

The Minister and the Government have failed in another aspect by trying to railroad the Bill through the House and scheduling Committee Stage next week before Second Stage has passed. That undermines the democratic process. Many Opposition Members would like to table amendments. How will we have fair time and due process to amend the Bill if the Government is not willing to listen to us? The fact that the Government parties want this off the agenda and have it dealt with demonstrates how they do not have the democratic process at heart.

We proposed five judicial and seven non-judicial members on the commission, which would provide for a good spread of representatives from civil society, whereas the Government proposes a three-nine split. By excluding the District Court and other lower courts form the selection process, this would mean the majority of judges would be appointed to the lower courts and the Bill should be amended in this regard. The absence of a statutory framework for the selection criteria in the Bill highlights that the Government parties have not detailed in their own minds what judges they would like to see appointed.

The Fianna Fáil Bill makes it clear that we would like people of integrity to be appointed and we listed various criteria that would play a core role in judicial appointments. The fact that they have been ignored means we are not sure what type of experience and background the potential candidates will need. By ignoring that in the statutory framework, the Minister is creating a political vacuum and giving the commission the opportunity to appoint whomever it likes. There will be no ranking of candidates under the legislation, which means there could be a repeat of the Máire Whelan affair. The former Attorney General ignored section 18 of the 2005 Act but, in theory, the Attorney General of the day could form part of the small pool of candidates. This will not be ranked, which will give the Executive the power to select whomever it wishes based on his or her political background. We all want to avoid this. We want to remove politics from the selection process but the proposed statutory framework does not achieve that because the Department, the Minister and the Minister for Transport, Tourism and Sport have in a ham-fisted way tried to draft this legislation without examining either the political consequences or the consequences for the Judiciary.

While the Taoiseach and others have stated that the Judiciary needs to stay out of the legislation process, with which we all agree, the fact that the Judiciary has acted in such a public way at all court levels must alarm the Government. This is a significant departure but it is due to the consequences of this legislation for the independence of our Judiciary. This legislation could politicise the selection process in a greater way. We do not know how the unknown laypersons will be selected and what will be their agenda. What is proposed creates a vacuum and too much uncertainty for those who wish to be appointed as judges because there will no ranking criteria or statutory process to guide the Government and to construct greater barriers to prevent the Government over politicising the judicial appointments process.

The programme for Government states, "The new structure will include a transparent, fair and credible process". The statutory framework fails to achieve that aim. The programme for Government also states, "We will reduce the number of suitable candidates proposed by the judicial appointments commission for each vacancy to the lowest number advised as constitutionally and legally permissible". The Minister has failed to provide credible criteria for appointment in the statutory framework or a ranking profile, which would sideline the political process. That would not be transparent, fair or credible for those seeking appointment to the Judiciary.

The Minister needs to spend significant time gutting this legislation to remove many of its negative aspects. The Government needs to work collectively to ensure it removes the duplicitous, two-faced approach whereby text messages are being sent to backbenchers to encourage them to undermine the Bill at the same time as they are publicly supportive of it. No Member should have his or her unilateral agenda provided for in this legislation.

We in Fianna Fáil will stop that occurring. We will stop the Government from trying to appease one member of the Executive and from railroading his agenda through this House. It is important we uphold a credible, fair and transparent process that delivers the criteria impartially and delivers a process that can last a length of time.

I urge Sinn Féin to stop this happening. This is happening with the support of Sinn Féin and the Government is relying on Sinn Féin for support, something that has been ignored in the political debate over recent hours and days. Sinn Féin is facilitating this Bill. It criticised Fianna Fáil and criticised Tweedledum and Tweedledee. Today, Sinn Féin is Tweedledee. It is allowing a flawed process to progress through this House. The Government should examine the Bill further. As members of the Committee on Justice and Equality, we will not allow the Government to railroad this through the Dáil.

I remind Members that the relationship between the Oireachtas and the courts is a matter of significant constitutional importance and Members should accord respect to the Judiciary and the important role its members perform. I call Deputy O'Dowd.

This is very important legislation which concerns the quality of our justice system. It is not just about the appointment of judges. It is about how people are treated in our legal system, how they end up in court and what happens to them. It is very important when one goes through that process, whether it be as the result of a civil action or a criminal action, that it is fair and transparent, and that anyone who is before a court is treated fairly and properly and judged by one of his or her peers.

The controversy is very narrowly put by my colleague opposite. He puts a very narrowly based argument which does not address the equality of justice, the equality of our society and the equality of treatment of people. Of two people born today, if one of them is born in Castleknock, that person is more likely to be a judge than someone born in another part of Dublin city. The fact is where one is lucky or unlucky enough to be born determines a lot of what happens to a person. There are certain parts of Dublin city where a person is more likely to be a judge, a middle class lawyer, a teacher or a Deputy, and there are other parts of the city where a person is more likely to die younger, end up in jail or be poorly educated. They are called disadvantaged areas. Our modern society, particularly our Government, must be about equalising opportunity for everyone regardless of where he or she is born or his or her background, in order that everyone reaches his or her full potential.

The question is how we make it a fairer society. The question is how we make that judge a better person. The question is how we make sure all the Judiciary meet the requirement of understanding the lives of ordinary people, of understanding poverty, exclusion, poor education, poor health and the forces that drive people into crime. We all know what they are. It begins with a P - poverty - and with lack of access. As a teacher in the past, I have met very bright and capable people who came to our school but who did not end up on the right side of the law because they never got a chance along the way. We need a society that looks after everyone equally and fairly. If someone breaks the law, then that person pays the penalty, but before he or she comes to that process, or as that person goes through that process, there must be understanding and a commitment to equality and fairness. The Minister of State, Deputy Stanton, is committed to equality and fairness in our society. He is the person who brought in recognition of Travellers as a different ethnic group. To take the number of Travellers in our society as an example, I would ask whether there are a disproportionate number of Travellers in our jails. I think the answer is a definite "Yes" to that. Is there a judge who comes from a Traveller background? I do not know the answer to that, but perhaps it is time there was one, if there is not.

This process the Deputy opposite finds so flawed should address all these inequalities. Obviously, someone must be the chairperson and must have specialist knowledge. However, to imply that such a person is going in for no good reason whatsoever or that he or she will not have or could not have the good of all of society in his or her heart, does not make sense at all. The Deputy's argument is flat and fallacious. In fact, it is rubbish. It is a waste of time talking about the future of society in that way.

The question is how we make sure the Judiciary represents society through the way in which people are brought in to be judges. How do we do that? We do it by making sure, at the very first stage, that every single child in this country has equality of access to health, a decent home, which they do not have in this society, a decent background and supports, if they happen to come from unemployed families or poor families. We need to discriminate positively in favour of those who come from the most disadvantaged part of our society. That is not to be soft on crime or soft on anyone who breaks the law. It is to make sure that those who are most likely to end up before the honourable justice will have the best chance not to be there and also have the best chance to become that judge or that lawyer.

When people go into the court, what do they see? They see someone sitting there with a wig and a gown. If someone is representing them, they cannot tell if that person has hair because he or she has a wig and is dressed in funny clothes. It is alien from society and alien from ordinary life. In the Circuit Court, the Central Criminal Court and the High Court in particular, people meet all these guys who speak with posh accents - nothing wrong with that, but most of them do - and who come from privileged backgrounds. How does an ordinary person get represented in that system? They get represented if we have equality of opportunity, if we pick out the brightest and the best and if we encourage people as they come through our schools. As they come up from primary school, the best and the brightest should be identified and we should make sure they get the opportunity to develop. I know our society is much fairer than it was when I was young but it still has significant difficulties and disadvantage.

I would have thought that if someone wants to be a lawyer or a judge, there ought to be a special track for him or her to follow. I understand that in other countries, in particular France, and the Minister of State can correct me if I am wrong, one may opt to go into a career as a judge or in the area of what I understand is called jurisprudence. That point is that if I want to be a judge, I should be able to opt in to a special university course and I ought to be put through a course on understanding our society and understanding all the issues I have raised, for example, why people end up in jail and why they break the law in the first place. There should be an important emphasis on understanding and meeting the needs of society. Ultimately, if someone does become a judge, he or she will have gone on a specific training course. This applies to the point made by the Fianna Fáil Deputy about the person with knowledge who is going to make that decision. A person decides to be a judge and then follows a track that brings him or her on that course in order that he or she is skilled, knowledgeable, well educated and has wide experience before he or she sits behind any Bench or judges any human in front of a court.

That is what I would like to see in the passage of this legislation. I would like to see at the core of our judicial appointments process a recognition of equality, transparency, accountability, fairness, equal access and real justice, which is what people want in this country. That is what this Bill has in its heart. It has change. Obviously, it is resisted by some people, eminent though they may be. However, the fact is that the more holistic the approach and the more skills and knowledge one brings into that final decision-making process, the better. We pick people of eminence, knowledge and influence in these areas. To me, that makes the most sense and is the only way to go. Some people have criticised this Bill for its inclusiveness. It is inclusive legislation. It is bringing more people into the process and bringing in new skills, new knowledge and a new way of doing business. I understand the Minister for Justice and Equality made it very clear that the President of the District Court, the President of the Circuit Court and the Chief Justice of the Supreme Court will be in position in the context of these judicial appointments as and when they are being made.

There are many positive things in the legislation before us.

Many good things could happen but we have to make them happen. We must ensure this legislation is properly proofed. I welcome the statement from those on the other benches to the effect that they do not want it rushed through next week and that they do not want Committee State rushed through. That is fine; I do not disagree with them. We should consult more on legislation. When the Minister of State, Deputy Stanton, was Chairman of the justice committee, he often consulted different groups about the legislation that was coming before it. I do not know if that has been done with this legislation yet. If it has not, it should be. Ideally, we should identify the type of people, as opposed to the names of individuals, we want in this process.

I once had the temerity to take a couple of builders to the High Court because they had demolished a listed building in the middle of the night. I brought them to the High Court. It was some experience and we won our case. They knocked down the building and we made them build the damn thing up by handmade bricks. The building stands today and represents the integrity of our historic buildings and the determination which I and other people had to make sure it happened. The funny thing was that we had to go through six High Court judges. Some people opposite might have been before a few in the past, but I was before six. Imagine that. The problem when one goes to a law court is that one must win every time. We had to win six times before the different judges.

I ask the Deputy to propose the adjournment of the debate because we have reached 12 o'clock and it is now time for Leaders' Questions.

I was told to keep going for 20 minutes. I propose the adjournment.

The Deputy is filibustering again.

The Deputy is a hostile witness.

I will continue with my story in the second half. I hope all Members will be present to listen to me.

We will wait for the Taoiseach.

He was late for Donald Trump and he is late for the Dáil.

We will have to buy him a watch.

The adjournment is agreed.

I am sorry to leave the House on hold.

I thank the Taoiseach for coming.

Debate adjourned.
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