Fianna Fáil was in possession. I call Deputy James Browne.
Judicial Appointments Commission Bill 2017: Second Stage (Resumed)
I welcome the opportunity to speak on the Bill. There are three branches of Government - the Legislature, the Executive and the Judiciary. The regulations, structures and functions of these principal organs of Government are fundamental to the protection of our democracy and the rights of the people who live within that democracy. The Constitution was carefully crafted to regulate the relationship between these institutions by setting out the balance of power between them. It does this by means of the separation of powers. The doctrine of the separation of powers operates by putting in place a degree of independence between the parties whereby a system of checks and balances can operate. The three institutions are to work as a counterweight to each other. Any erosion of the separation of powers or those checks and balances must be fiercely resisted. Erosion of the separation of powers can occur by the encroachment of one arm of the State on the other. It can also occur when one arm of the State attempts to undermine another arm of the State.
To return to the Government's proposed Judicial Appointments Commission Bill 2017, I have carefully read it and it is clearly a flawed Bill. It fails the test of the separation of powers, both legally and philosophically, and in doing so it undermines all three institutions of our State and, consequently, the protections in place for our citizens and non-citizens. The consequences for the public may be profound and long term. Why do I say this? First, there is the politics. It was obviously cobbled together in haste to keep the Minister, Deputy Ross, on side with the Government. The legislation is clearly ill-considered and poorly constructed. It reminds me of a farm animal put together by a committee. It is a hodgepodge of compromise between Fine Gael and the Minister, Deputy Ross, with more than a nod to Sinn Féin to ensure its support.
We know the Minister, Deputy Ross, has long displayed a resentment towards the Judiciary and has been only too willing to cast aspersions on the highest judges in the land. He has regularly sought to undermine their credibility and reputations. One only has to read the record of his statements in both houses of the Oireachtas to know that. I want to examine a number of those statements. On the Seanad Order of Business on 15 February 2006, the following exchange was recorded involving the then Senator Ross:
Senator Ross: Senator Jim Walsh raised the matter of the Judiciary on which Senators Norris and O’Toole and I tabled a motion some time ago. I refer to political appointments to the Judiciary and seek a debate on ending political appointments thereto.
Senator Lydon: Certainly not.
Senator Ross: For so long, one party has put its own people in power and then another party has appointed its people to the Supreme Court.
Senator Wilson: That is not correct.
Senator Feeney: Five High Court judges were appointed and they had nothing to do with our party.
Senator Ross: Occasionally a dummy is appointed to fool people. I wish to finish without interruption. In the Bar Library people predict the outcome of Supreme Court decisions on the basis of party affiliation.
This was both a slur on those appointments and a slur on the Supreme Court judges. During the debate on confidence in the Taoiseach on 16 June 2010, the then Senator Ross stated:
If one talks to people in the Law Library, they will say, “That one is yours or that is theirs”. They identify judges in private conversation and when they talk about Supreme Court judgments, they can say which way they will go according to the political colour of the judges.
That is not only wholly incorrect but, again, is a slur on judges in the Supreme Court. In the Seanad on 28 February 2007, at a time when the then Senator Ross wanted this House or committees to scrutinise judges, he stated:
I seek a debate on No. 21, motions Nos. 8 and 9, so that we can discuss in a calm way the possibility of making appointments to semi-State bodies and the Judiciary subject to the scrutiny of the House. Unfortunately, the Independent Members have never had an opportunity to make such appointments.
That last sentence is the important one. There, we are getting to the nub of the motivation for this Bill. For the Minister, Deputy Ross, this is an issue about power, in particular the Minister's lack of power, as he sees it. There is clearly resentment and a bitterness towards the Judiciary. It is one of the oldest issues in the book.
The Minister, Deputy Ross, now seeks to have the Government bring forward legislation that will seek to put in people he claims are independent or ordinary people to appoint the judges. He consistently refers to them as being ordinary people. The Minister, Deputy Ross, obviously circulates in more rarefied positions than I do. Where I come from in Wexford, ordinary people are mechanics, electricians and people who work in supermarkets. The Minister, Deputy Ross, seems to consider ordinary people to be those in the establishment, such as people who work in funds, accountants and stockbrokers. These are not ordinary people; these are people who have their own vested interests.
As a result of the demands of the Minister, Deputy Ross, we find ourselves discussing the Bill for three days. We are approaching the end of the session and there are crises in mental health and waiting lists for medical appointments while thousands of people are homeless, yet none of these issues is given priority by the Minister or the Government. Why is there no mental health legislation before the House? Why has desperately needed legislation such as the child care Bill, which seeks to give a voice to children in the courts, not been prioritised? Why has the affordable child care Bill, which will help people with the crippling costs of child care, not been prioritised? Why has the gambling control Bill not been prioritised? This will regulate the Wild West that is our gambling laws and help to protect our children from gambling addiction. The Government could bring forward an endless number of desperately needed Bills to strengthen citizens' rights, yet none of these has been prioritised and, instead, the hobby horse of the Minister, Deputy Ross, was made a priority. His Bill seeks to weaken citizens' rights by undermining the independence of the Judiciary through the politicisation of appointments.
It is clear the Bill will achieve three things. It will damage the quality of justice administered by our courts, politicise the appointment of judges even more than is currently the case and establish an unnecessary and costly super-quango. The administration of justice is a fundamental role played by the courts under our Constitution and it is a cornerstone of the separation of powers. Article 34.6 clearly provides that justice should be administered in courts established by law by judges appointed under the Constitution in public. Hundreds of thousands of cases are dealt with by the courts each year from the District Court all the way up to the Supreme Court. Every case has an impact on our society, even the most minor ones. The most common cases are taken in the District and Circuit Courts. Some of them might seem minor to the outsider, but their outcome is fundamental to the individuals who are involved in them. District Court cases are often fought with the same veracity, hope and determination as a Supreme Court case. The cases are heard by judges who have been appointed under the Constitution. They must have a knowledge of the Constitution, statute law, EU law and common law. In short, they must be experts on the law.
However, they need much more than that. They need a good temperament and they need to weigh up individual cases. The best paid lawyers in the State would make terrible judges. A judge needs to have confidence but not be a zealot. He or she needs to be fair minded and to have the self-awareness to know his or her weaknesses and to acknowledge and address them. A judge must have strength, but must also be willing to yield when necessary, and he or she must have a deep understanding. It requires people who understand the workings of the court to have the expertise to know what makes good judges and the difference between what makes a good judge and a good lawyer. They are not always the same. Deputy O'Callaghan touched on a crucial point when he referred to the consistent determination and attempts by the Government to confuse lawyers with judges. They are not one and the same. When someone is appointed a judge, he or she leaves behind his or her profession as a lawyer. Judges are professionals, but it is not a profession. They are an independent arm of the State and they have the same position under our Constitution as the Taoiseach, but with a different role. It is important that they are kept separate and that they are not undermined by another arm of the State.
One of the stated aims is that the legislation will remove politics from appointments, yet we know from analysis that it will do the opposite. Those and, in particular, the Minister for Transport, Tourism and Sport, who say it will end this either do not understand the Bill or they are fully aware of what it will do. The Bill provides for a majority of lay persons to decide who should be recommended as judges. These people will have no expertise or knowledge in what is required to make a good judge but they have expertise and knowledge about the running of the establishment. There is no doubt they will be nominated from some of the powerful vested interests in the State. The process will be even more politicised. What will their agendas be? What will they seek in the appointment of judges? As Deputy O'Callaghan mentioned, will pro-life or pro-choice viewpoints be considered, for example? Will people who are looking to undermine the State seek appointment or people who would like other viewpoints in judgments? Will people who feel aggrieved over past decisions and judgments seek to become members of the commission in order that they can control who is appointed to the Judiciary? One of the oldest tricks in the book in politics is where a Minister cannot decide the outcome, he or she decides the people who will be on the body that will decide the outcome. It puts a reasonable distance between the politician and the body. It makes it look independent while doing quite the opposite. This undermines transparency and accountability.
Even with the legislation, the super-quango it will create, the hundreds of thousands of euro it will cost, and the people who will be transferred from the Civil Service to staff it, the Government can still ignore any decisions this advisory body will make. It can do so in the same way it ignored the 1995 legislation two weeks ago. It remains the prerogative of the Executive to appoint who it wants as a member of the Judiciary. The Bill does not even provide for nominations to be ranked in order. It will remain the case that three names will be put forward and the Government will be free to do what it wants, irrespective of this legislation. It will, therefore, do nothing to depoliticise the appointment of judges. It will strengthen the politicisation of appointments but put them at a remove from the Government and in the hands of unknown persons.
One of the reasons the State survived independence, unlike many countries that secured independence but struggled for a long time to establish a strong and stable democracy, was judicial independence. When the new Constitution was introduced, judges who may not necessarily have agreed with it or who came from a different era abided by it and the decisions of the House and continued to act independently. While every judicial appointment has been made by the Executive over the decades, throughout the debate on the Bill, no example has been provided of a judgment where there was interference by a judge or a political party. The Minister for Transport, Tourism and Sport has uttered a great deal of invective in the past about that and I referred to some of his quotes earlier, but he has been unable to give a single example. One of the notable aspects of the debate over the past few weeks has been that people who may not be considered to be friends of Fianna Fáil have said that judges, once appointed, have always acted independently, whether they were appointed under a Fianna Fáil-led or Fine Gael-led Government. Using another old trick in the book, the Minister is trying to deflect by trying to solve a problem that does not exist. He is trying to create a problem to be seen to have solved it while he ignores issues in his own Department, such as the lack of enforcement of penalty points on driver licences.
It has been consistently put forward that the new body will comprise a majority of lay persons but no explanation has been given as to why people who are expert in the running of the courts or in what is required to be a judge should be in the minority. People who may never have set foot in a court will be in the majority. On paper, somebody might look a good potential judge by having been involved in many significant cases, but he or she may have been a junior counsel who sat beside a senior counsel and may never have led a case. He or she may have a successful career, earning lots of money in the courts, but that does not mean he or she will make a good judge.
They may have top marks or top degrees from universities, but that does not make them good judges. As I said earlier, they might not have the right temperament or right sense of fairness.
This Bill also attempts to undermine and demean the Chief Justice of the Supreme Court. She is expected to sit on a committee but not chair it. Instead, she is to sit on the side and effectively be told what to do. As was highlighted earlier, can one imagine the Taoiseach being expected to sit on a committee but not chair it? It would not happen because it would undermine the Taoiseach. Here we have one arm of the State trying to undermine the head of another arm. It is wholly unacceptable to see that being attempted.
The Taoiseach gave examples of regulatory bodies on which the majority of members are independent. Of course, they should be independent. It is demanded that they be. However, these boards are assessing the actions of a professional within a certain profession. It does not involve the separation of powers or one arm of the State trying to interfere with another arm. Trying to bring Supreme Court judges down to that level where they are seen as a body to be regulated is not acceptable. It shows a misunderstanding of judges’ role in the Constitution.
The Minister for Transport, Tourism and Sport, Deputy Ross, compared the process to juries which are composed of ordinary people. They are ordinary people but they are there to bring their common sense, common knowledge and common understanding to the facts of a case. It is the judges who continue to run the court and apply the law. It is a different situation.
This is a flawed Bill which will be overseen by a super-quango. We know that on average 15 to 20 judges are appointed every year. However, one could go six months with no judge appointed. What will the civil servants in this super-quango be doing in that time? No one knows. They will probably be sitting around, maybe empire building. We do know, however, that we have three-year olds waiting three years to see a psychologist. We have people who cannot access maternity benefits, as well as delays in medical card and fair deal applications, because we do not have civil servants to administer them. There are three civil servants in the Department of Agriculture, Food and the Marine dealing with one of the most existential crises the State has ever faced, Brexit. However, we can afford to put loads of civil servants into some new commission, give them a lot of money and, perhaps, nothing to do for long periods.
This is a flawed Bill because it undermines the independence of the Judiciary and politicises even more so the appointment of judges, but in a way that reduces transparency and accountability. It is motivated by the whim of one Member who has had a particular agenda for a long time and who has sought consistently to undermine judges. At the very least, this Bill needs more time to be considered and should not be rushed as it is. As I said earlier, it is beyond me why this Bill has been given such priority when so much other legislation badly needs to go through this House. In those circumstances, I ask the House to reject this Bill.
Fianna Fáil has had a Bill on this matter which has passed Second Stage. It is much better legislation in bringing about fairer change for the Judiciary. The Judiciary itself has said it wants change, but not this hodgepodge change being brought through in haste based on a personal agenda which will only undermine one arm of the State.
I welcome the opportunity to speak on this Bill. It was introduced in a rush over recent weeks when damage had been done, especially with the public, as to the way appointments are made to the Judiciary. What went on at Cabinet with the most recent judicial appointment was disgraceful. For politicians, who are with the public in their different constituencies, what went on calls into question the whole cronyism and nod-and-wink approach to judicial appointments. This is not good when, over the past year, it was claimed that politics was to be cleaned up along with the systems that were in place down through the years.
The Bill will set up a new advisory body for judicial appointments. I looked at the list of those who will be on it and there is a fair representation right across the board. One can have the most expert people on this body with in-depth knowledge of the whole judicial system. However, at the end they have to go with a list of three names but the Government still decides who it will accept. In my book, this is an unusual way of doing it.
When a person goes for a job in the county council or the Civil Service, he or she does an interview, is rated and is given a placement, be it No. 1 or 1,001. That person knows where he or she stands. Councils have an appointments system, which stands for two years and then it is updated. What is wrong with having a system where an independent body interviews those who apply for a particular court, assigns ratings and then appoints them on this merit, rather than the Government deciding it will pick the third candidate, even though there might be two other names ahead of that candidate?
Sadly, it is undisputed that people with certain leanings in certain ways have got the nod down through the years. Was it the case that whoever composed the list was told what names to put forward? We need transparency in the judicial appointments process. We need to show the public that, for once, these processes are changing and are becoming more transparent. There should be a process where people can google to see who applied and their ratings. It can be done through a letter if one wants to keep it confidential. If one applies to be a District Court, Circuit Court, High Court, Supreme Court or Court of Appeals judge, or even to two courts, one should at least know where one stands. This Bill, however, allows the Government or a Minister to decide which of the three names which go forward will be appointed, be it Tweedledum or Tweedledee. That is not good, especially after the tarnished image portrayed over recent weeks.
The one thing that galls me is the fact we spent 80 days in talks, and new politics, a new way of doing things and more transparency were to result from that. It is sad when I look at people I sat down with who would have gone to bank AGMs, who would have taken on the heads of the banks about the way they conducted their business and the way shareholders were treated, and who put forward the need for transparency in the judicial system as one of their leading agendas in the programme for Government. Those people were in Cabinet two weeks ago and did not speak up. It was not the 11th hour and 59th minute. This Bill could have been introduced nine or ten months ago if it was that urgent. It is possible to delay the appointment of someone and go through the process that is required, but someone should not be given a prize just because they were with one for one year, five years or six years. People have asked me whether it bothers people. On the weekend when this issue blew up, it was the most talked about issue in all our constituencies throughout the country. When someone holds themselves up as believing in a new system for judicial appointments, and it was a pretty tough debate when the programme for Government was being put together, but closes his or her eyes when the harm is being done and the horse has bolted, and then comes back and says we need this Bill urgently and this is how we are going to clean it up, it does not give that person credibility. The Minister for Transport, Tourism and Sport would have been better off concentrating on transport because there is a huge deficit throughout the country that needs funding, and a focus on it is needed. Any Minister has enough to do in his or her own job much of the time instead of minding a few different Departments.
Another issue the Minister needs to clear up relates to the fact there is a lot of chat circulating that he made approaches for certain people to be appointed to certain posts in the Judiciary. This needs to be clarified one way or the other because one cannot bring in a Bill or shout about bringing it in when one did what everyone else did down the years. This issue needs to be clarified.
The Bill needs time and needs to be teased out. We need to make sure it is not just under the control of a Minister. I have read the Bill. The only way we can sort this out is to have a system where there are one or two people on it, because if we do not do that, we will have situations where someone will say to give a particular person the twist, as it were, because he or she is leaning that person's way or whatever way. The Judiciary has served the country well in many cases but it is not good that there would be any political influence on the appointments such that they are a reward for being with someone or in favour of a party or group. That is not a good system.
When I talk to people, I can see that much harm has been done at a time when politics tried to gain a bit of momentum and people believed that politics would be pursued in a new way. In respect of what happened two weeks ago regarding the appointment, let me be very clear that I am not questioning the person's ability. I do not question a person's ability because who am I to judge someone's ability? However, that is not what it is about. It is about the system and the way it was done. The system down through the years has been rotten and there is no doubt that we need to change it. I agree with this argument 100%. However, are we changing it with this Bill? At the end of the day, when one brings three names forward, one can pick any of them. I ask the Minister for Justice and Equality to ensure one part of that Bill would ensure a candidate would be on a list and everyone would know where they stand. Everyone would then have the right to say whether they are interested. As was pointed out earlier, there may be ten, 15 or 16 appointments one year and none the next year. That is the way it is. As was pointed out earlier, the other thing we need to watch out for is that we do not have a heap of people wondering what their job title is if there is no appointment because surely there are other things we could get people to do.
I have heard the Judiciary argue that it does not have enough say in it. I have looked at it. In respect of solicitors and different bodies that would be on that board or commission, that is not something I would worry too much about. I still do not think we are solving the problem of the appointment where there are three names. Someone could be the greatest in the world and still not be in it. They could be in three times or be one of the three names the next time and still not be in it. Someone could go on and on. There are solicitors throughout the country who might not lean one way or the other or might not have been politically involved. They will say very bluntly that they never got a crack at the whip. They never got a chance. They might be phoned every now and again to see whether their tax clearance is in order, but that is the end of it. People ask whether this should be said in the Dáil. This is what is being said on the ground. We need to make sure we clean up whatever is wrong and the type of impression it gives.
The harm has been done. The horse had bolted when we started bringing in the Bill. Much harm has been done. It has been one of the most destructive things that has happened to people's confidence since I entered the Dáil. Unfortunately, everyone gets tarnished then. "Isn't it the same craic", is all you will hear from everyone. That is not good. That is not the way it should be done. We have excellent judges in places and many appointments have been good. Let no one criticise that part of it. However, there may be some appointments one would question. That is debatable when one looks at certain cases. Politics has to be taken out of this. There is one problem with the Bill. I know it will be said that we must change something in the Constitution but if we have to change something, let us change it if it is for the good and for more transparency. I am an Independent Deputy but I think Independents have been damaged. The Minister for Transport, Tourism and Sport was asleep at the wheel when that Cabinet meeting took place and he did not block that appointment because it was not life or death and it was not a week, two weeks or a month. We could have let this Bill come in if it was going to come in and then take the high moral ground and say, "Aren't I great?".
The problem is that the damage has been done. Anybody who is speaking of bringing in a Bill now needs clean hands. He who comes seeking equity must come with clean hands and needs to clarify whether he ever made such representations.
I understand Deputy Eugene Murphy is sharing his time with Deputy Ó Cuív. Is that agreed? Agreed.
I will make a short contribution on this Bill. I welcome the opportunity to make a brief comment on it.
I have to say at the outset, I agree with Deputy Fitzmaurice that this is a rushed scenario. It is an issue for many Deputies as to why this matter needed to be rushed through so quickly. I make this quite clear because I have been picking up comments outside over the past few days and I am a little concerned at comments that Fianna Fáil does not want change or some changes. We want change but we want it done in the right way and we want time and space given to reform. It is somewhat misleading to have a charge out there that Fianna Fáil does not want change. The fact is that, in October 2016, we published a Bill which was totally committed to achieving reform in this area. I believe genuinely, as my party colleagues do, that some change is needed in this scenario in order that people have full confidence in the system.
It is important to state that the judicial system as a whole has been really good and in a European context is often referred to for its equity and fairness. While now and again one might have reservations about some judgments or whatever, generally we have a good system of justice.
As for political connections, I hold the view that everybody in Ireland has a political connection. Everybody in this country believes in this or that. They believe in a party or some other party, or they believe in Independents. I never buy into this argument about political connections. It is overplayed. I acknowledge that down through the years, those who perhaps were close to one political party or another were appointed to positions but when one looks at the overall administration of justice in the country, the vast majority of those appointed carried out their work diligently, equitably and fairly. Whatever concerns some, including the Minister, might have about political appointments and why we need transparency, the way justice has been handed out by the Judiciary over the years has been good in general.
It is true to say some have political connections and one could say they are at an advantage if their names are on the list which goes to the Cabinet, while it is often said that canvassing should be prohibited. Many who are appointed because of political connections, as I have already stated, will turn out to be excellent judges. We should not have a system whereby a person should be excluded from subsequent nomination to judicial office because he or she was involved in politics. We should face this question head on. Why should they be excluded more than anybody else? What we do not know is if there are good candidates who apply to be judges and who, because they did not know anybody in Cabinet or any Deputy, were overlooked and never got the opportunity of being promoted to the position of judge.
For all of those reasons, the system needs to be changed. We need a recommending body that can identify who it believes will be the best person for the position of judge. We should have a recommending body that ranks individuals in terms of their suitability for that job.
Under the Constitution, which is appropriate, the Government has the final say. One should remember this all is well laid out in the Constitution. Regardless of the system in place or how it operates, the Government can disregard the list of candidates provided by the Judicial Appointments Advisory Board and appoint a candidate of its choosing. That is the scheme that currently operates under the Constitution. However, it need to be changed and broadened to ensure that it is fairer and that the best - there may be persons who we do not know and who do not have connections - have an opportunity to be considered and appointed.
I remind Members that the Fianna Fáil Bill was published in October 2016. I stress that point because of what I hear from some of the public that Fianna Fáil does not want change. We were advocating change as far back as October last. That Fianna Fáil Bill sought to establish a judicial appointments commission to recommend to the Government the names of the individuals who it believes would be the most suitable to be judges based on merit. For each position, it would recommend three persons.
I will conclude because Deputy Ó Cuív has a major contribution to make, as have Deputies Kelleher and Thomas Byrne.
Welcome back to quango land, the quango land to which the Minister and the Government were so vehemently opposed. They are right that there have been too many quangos but here comes quango number one under the new system. How much is it going to cost? It is estimated this will cost €1 million to start off and as all will be aware, that cost of €1 million will quickly rise to €2 million and €3 million. In my view and that of my party, it is necessary and important to point out to the public that there will be a significant and unnecessary wastage of public money on what has been proposed here.
It is important to look at what actually happens in the appointment of judges. As somebody who was in Cabinet for a considerable period of time, I am aware of the reality. The reality is not what is spun in the media, namely, that politicians put their pals into these positions. In the vast majority of cases many members of the Cabinet, particularly those who were not in the legal profession before politics, do not know the names that come before them. Under the present system, they get a long list of names and are told those are suitable. That, obviously, is flawed from an information point of view as were one appointing a board, for example, one would try to get some reason as to why those who were being proposed to one for appointment were suitable for the job. Therefore, the system is flawed because it does not give the Cabinet enough information.
We must preserve the absolute right of Cabinet to make a decision having followed a good process, not because it is in the Constitution but because it is right to be in the Constitution. In other words, on the one hand those who make decisions with a lack of information are not acting responsibly and the Cabinet has to act responsibly while on the other, the ultimate appointment of judges has to rest with those elected by the people.
As my colleague, Deputy Browne, stated earlier, a coterie of powerful people in this city would like all appointments to be made by a clique that we would never see and who we would never know and they want everything done by that clique. I checked one day by putting down a parliamentary question to every Department. I asked for the geographic location of all the members of all the boards of all the agencies under each Department and what became apparent was that a disproportionate number of those board members came from Dublin, not from the rest of the country.
I suspect that if I had seen those people's addresses on Google Maps, I would have found a very large number of dots between the south bank of the Liffey and Bray, in the most salubrious areas. No doubt, I would have found no member of any State board from some of the poorer parts of the Minister of State's constituency. Increasingly, in all the processes we are putting in place, we are promoting circumstances in which, in reality, a small group of people who know one another, mix in the same circles and come from the same class are obtaining more and more power unseen. I object to that. What democracy is about is saying the small person has the exact same vote on election day as the most important person, be it the President or a millionaire. That is right because it is what democracy is about. The only committee in this country elected by and answerable to all the people is the committee called Dáil Éireann, of which there is a sub-committee called the Government, which we elect democratically and openly and which the people can fire if they feel it has acted in an improper way. Therefore, we must guard with jealousy the constitutional right of that committee to be the final arbiter.
There is a certain deficiency that I accept. I know from having been in Cabinet that one got a list of names, big or small, and was told the individuals thereon had been checked and were all suitable. One looked at the list of names and did not know any of them. One did not have any recommendation or any cur síos as to why they were suitable or why some were more suitable than others. I do not know the stance of others of the National University of Ireland, NUI, candidates on the Seanad ballot paper. If one does not know them at all, one gets a bit of a blurb about them. If one knows someone and believes he or she is a good character, one will probably give him or her a high enough stroke because one knows what one is getting. Therefore, I accept there is a deficit of information given to the Cabinet on why one person is more suitable than another. The Government's Bill does not address this, however. It states three names will be given but there will not be any information on why the candidates believe they are suitable and why some might be more suitable than others. It shortens the list by comparison with the previous arrangement but it does not eliminate the difference.
May I address another challenge we have to face? At present, if a very good person who is appointed as a judge happens to have a relative in politics, it is very easy in our present system, because we have a small country, to point the finger and say, "Aha, wouldn't you know?". Again, our proposal, unlike that of the Government, deals with that issue. Where that charge is made under our proposal, one can say that, based on information given by someone who examines candidacy independently, it stands up that the candidate fits the criteria. People should not be put into jobs or fail to get a job because they happen, by birth, marriage or any other relationship one can think of, to be connected to a politician. We need a system that defends not only the person who might be appointed but also those who make the appointment. Under the Government's proposal, this does not happen.
Let me refer to the usual end-of-term madness that seems to arise in this House. At the end of a term, either by political direction or because the Civil Service suddenly acquires a massive amount of energy - I have seen both - legislation has to be rushed through as if the future of the country depended on it. I am sure the Minister of State got the Friday afternoon memo, and I am sure the Leas-Cheann Comhairle and Deputy Kelleher got a few in their time. The memo arrived on a Friday evening with a very nasty decision to be made very urgently because time had run out. When the memos arrived, I used always to get someone to ring the relevant section and find out when it got the file. If I learned it had it for six months, I would say I was going to hold it for six months. In the normal course of events, however, I normally signed off on a file on the same evening if I got it in good time. This Bill is the equivalent of the Friday evening memo. It is of no urgency and will not tackle the real problems that the real people are trying to deal with, including losing houses, social segregation in Dublin city, traffic congestion, the inability to buy a house for love or money, and homelessness. If the Government were rushing legislation today to try to deal with those issues, I could understand it, but it has been trying to rush a Bill that not one person in my constituency has raised in my clinic. Not one person has been pressing me about it because most people accept that no matter what human system, safeguards or processes one puts in place, there will in a large group of people be a few who are suboptimal. There is no human way of guarding against that, but most people accept two points, the first being that the vast majority of judges are good and that there are good appeals mechanisms within the system if a judge gives a decision that is flawed, and the second being that no matter what might be said about judges, they act independently. No Member of this House would ever talk to a judge about a judicial matter or try to interfere or influence him or her in any way.
I sincerely believe the Government should withdraw this Bill and enter proper dialogue on the best way of dealing with this issue. It does need to be dealt with but it is not of overwhelming urgency. It would be far better to do this right than to rush through a flawed Bill only to realise, having passed it, that it contains a major mistake. One of the most wrongful provisions in the Bill is such because of the position in which it is putting the Chief Justice. We must protect the status of positions like that, not because of the person but because of the office.
Being Chief Justice should mean that one is the leader in justice, in right and in standards. To say that the person the Cabinet will have picked because it believes he or she is the best, who under a proper system would have been recommended as being the best, should not chair the commission is demeaning of one of the highest constitutional offices in the land. I do not understand the reason somebody is proposing that. As has been pointed out here today, judges have to have legal training, but they are not practising lawyers; they are practising judges. The Chief Justice is not a practising lawyer but is a practising Chief Justice.
It has been baffling and quite embarrassing the way issues relating to this Bill have been played out both inside and outside this House. I stress that if there is such a sense of urgency to reform the judicial appointments system, why has it only taken place after the Taoiseach and the Government appointed the former Attorney General to the Court of Appeal? Much has been made of the fact that this Bill will take the politics out of the appointment of judges, but the reason it is coming forward is purely political. It is coming forward with such a sense of urgency to appease the junior partners in the coalition Government.
Fianna Fáil had a similar Bill in committee which the Government killed off, so to speak, by the use of the money message because it was not in its interests, again for purely political reasons. It was also because the Bill could have stolen the Minister, Deputy Shane Ross's, thunder and his reason for being. If the Government was mature and proper, it would have joined with Fianna Fáil and allowed the Minister, Deputy Ross, and Deputy O'Callaghan to move the Bill through Committee Stage and we could have reached this point far quicker without the sense of urgency and without any opposition in the Dáil.
The Dáil has been unfairly blamed for the slow progress of Bills being passed. However, Fine Gael is obstructing the progress of Bills while at the same time fast-tracking the particular Bill we are debating today. That shows it is not new politics that is at fault here but the inability of the Government to maintain the integrity of the legislative process because it does not have the courage to engage in democratic debate.
My colleague, Deputy Catherine Connolly, in her contribution to the debate on the Bill, rightly said that all of this is an illusion. It is an illusion that the Government is serious about reform, an illusion that politics will finally be taken out of the equation in judicial appointments and an illusion that this reform will adequately filter down to address the grave inequalities and elitism plaguing the rest of the judicial system.
Even if this Bill gets through the House, and it might not as it is possible the justice committee will use its procedures to stall it and not have it passed before the summer recess, the Government still retains the power to appoint as a judge whoever it wishes. In fact, the Government could essentially bypass the new judicial appointments commission if it does not like the three recommended names put forward by the commission because that power is protected within the Constitution. It would require a referendum before that is ever changed and since we already have a Citizens’ Assembly tasked with debating the need for certain referendums, we have missed that boat.
How can we take politics out of the process when the Attorney General, which is a political appointment, will sit on the new commission and where no rationale is given for the recommendation of candidates in the text of the Bill? The Bill is becoming more and more reflective of the farcical political process at play between the coalition and Fianna Fáil.
The Bill provides for the commission to be made up of a lay chairperson and a majority of lay members. I note the commentary focusing on lay people in the appointments process and what is essentially a fear some seem to have of lay people in general. It is as if we are terrified of anyone outside the inner circle of the elite having a say in what is in essence an institution that upholds the Constitution of the people’s Republic. The people are the final arbitrators regarding the Constitution, so surely the people should be able to have a say in who interprets and implements that Constitution.
Earlier in the week, I listened with amusement to retired judges discuss on a radio programme how we could not have lay people being in a majority on the new commission and putting forward names for selection. The serving judges know all the applicants and they believe they are best placed to make a recommendation, but I do not believe the Judicial Appointments Advisory Board has ever made a recommendation. We hear that it has put forward seven, eight, ten and, in some cases, as many as 20 names. That shows that those involved in the existing system are incapable of offending any of its elite members in that they do not want to choose one name over another to put forward as a person who is best placed for the job. The process of putting forward three names still allows the political process to choose the person on whom they want to bestow patronage.
The retired judges said that in no other system would it be expected that people who were not intimately involved in the actual job would put forward names. I cannot think of any other job application process in this country or in the world where three, seven or ten people's names are put forward as being good enough to do the job. Any application and interview process results in the person who is best qualified for the job being appointed. That is not a slight on anybody else who applied for the job. It just means that at that particular time they were not the best qualified persons. Every ordinary mortal in the country has to go through that process to get a job, but we are told it is not right to expect judges or those in the legal profession to go through that process. That is wrong.
This commission should put forward one name and say that of all the candidates it has this person is the one it believes is the most suitable for the position at the time. It should put it up to the political process and allow the political process appoint the person recommended by the commission.
If ordinary citizens are trusted as jurors to make very important decisions on the guilt or innocence of people before the courts, which perhaps might destroy their lives, and nobody questions the jury system, why are we questioning the role of ordinary citizens now? The Medical Council has a lay majority as do other regulatory bodies for different sectors. I agree with the sentiment that no regulatory bodies should be self-regulating or self-appointing.
The Judicial Council Bill, which was only published in recent weeks, should be dealt with and a judicial council put in place before this Bill progresses as it will provide a mechanism for the investigation of complaints against judges and enable the preparation of draft guidelines concerning judicial conduct and ethics. That should be part of the process of deciding whether a candidate is suitable for a particular job and if that code of conduct and ethics is in place, the proposed candidates can be compared in that regard.
Surely this culture needs to be established before we bring in a new process to appoint judges. The commission must also be accountable and take heed of the ethical guidelines as set out by the judicial council. It is clear there is no co-ordinated or concerted effort to bring about reform in the Judiciary, despite this issue dominating the political career of the Minister, Deputy Shane Ross.
Ultimately, we need to focus on the diversity of the sector, not just between lay people and professionals but within the pool of professionals themselves. We need to foster diversity within the law profession by encouraging people of all classes, gender and ethnicity to take up law. That will mean reforming the way people can enter law school and significantly reducing the cost of getting a qualification, which is prohibitive. The nepotistic and patronage culture inherent in both the Law Society and the Bar Council are further prohibitive in terms of those already practising, particularly for women in the sector.
Unfortunately, the Bill as it stands will not address this issue, particularly as section 7 of the heads of Bill has been removed from the text of this Bill. That section would have ensured that the Public Appointments Service and the commission must have due regard to gender balance and diversity as well as merit in the decisions it makes for judicial appointments. Throughout our system we insist on gender balance and gender equality in appointments, including the local authority system and so on, yet we will not insist on it in this case.
Fostering diversity starts at the very beginning - in our society. I have tried on two occasions to have passed an economic, social and cultural rights Bill in the Dáil, which would enshrine the rights to housing, health and education in the Constitution. That would have been a basis by which we could foster equality among all our citizens and ensure that class, gender and ethnicity are no longer barriers to employment or even to accessing our justice system, such as the provision of free legal aid. It is important that we change our society to ensure we bring about more diversity in the legal profession and, subsequently, in the judicial profession.
It cannot go unsaid that the cost of access to the justice system is still an outstanding issue about which the Government could care less. There does not seem to be a sense of urgency to address this, yet if the Government was serious about reform, it would have started with more genuine measures, for example, increasing access to free legal aid for people who cannot afford to access the justice system, rather than playing a political game to appease its coalition partners.
I welcome the opportunity to speak on this Bill. It is disappointing that we are not speaking in a more unified voice on this legislation, which in a way is important, because we are talking about appointments to the Judiciary and given that an earlier Bill, published by Deputy O'Callaghan, addressed many of the issues that were of concern regarding the appointment of judges.
Two issues are being mixed up in this debate. One is the issue of the appointment of judges and the other is how judges act after appointment. Very few Members of this House have claimed that our judges have acted inappropriately once appointed, that they would be still politically motivated or that they would be partisan or would make decisions for political reasons. During my time in this House and during my lifetime as a citizen, I have found that the members of the Judiciary, by and large, have behaved impeccably in the context of their interpretation of the Constitution and the discharging of their duties in the various courts on a daily basis from the District Court right up to the Supreme Court. Many of the major decisions that have been made in the Supreme Court have caused headaches from time to time for Governments that may have appointed those particular people. I certainly believe that the impartiality and the independence of the Judiciary is fully intact, even though the system of appointment is flawed. That is an important point to put on the record.
In any analysis done and any comparisons made between various common law jurisdictions and those without common law across the world, Ireland ranks very favourably in terms of the independence and impartiality of the Judiciary. It is one of the key components in ensuring that any democratic country functions and citizens' individual rights are protected and upheld, that laws are scrutinised by the higher courts and that a Constitution is protected and upheld as well. That is important for the rights of citizens right through to commercial rights, copyright, research and development and in respect of international investment and mobility. When consideration is given to locating in Ireland, the independence of the Judiciary is considered. Therefore, the impartiality of our Judiciary cannot be questioned. I have heard very few Deputies in this House, of all political colours and none, question the impartiality of its members.
Therefore, the point at issue goes back to the original matter of the appointment process. There is no doubt it is flawed because, as has been pointed out, there is a better chance possibly of being appointed to the Bench if one is of a political persuasion. Equally, if one is of the wrong political persuasion at a particular time, one may not get appointed to the Bench. A person who had previously been involved in politics could find himself or herself not being able to be appointed, even though he or she may have eminent qualifications because of a political association, or, otherwise, he or she is being appointed because of a political association. Equally, I do not think in a country of our size where many people have been and are involved in politics, that it should either be an impediment or an impetus to one being appointed. That said, there is a need to put in place a process that is more transparent and brings forward names of people of merit and substance to Cabinet for appointment to the Judiciary.
There are many aspects to assessing an applicant's ability to be a judge and we should not have a box-ticking paper exercise. There needs to be a robust interviewing process. There also needs to be an assessment of the broad range of skills required for a person to sit on a Bench of any court, namely, fairness, humanity, knowledge of the law, of the Constitution and of society and the challenges facing it. All these elements must be brought into play when assessing the suitability and merit of a person who has made an application to become a member of the Bench.
In that context, this Bill, as proposed, is flawed in a number of ways. Perhaps I can be accused of being partisan because Deputy O'Callaghan and I are both members of the same party, but I believe the Bill he proposed provides for a fairer assessment of how to assess the merits of a person making an application to become a member of the Judiciary.
Ultimately, the Government - unless we change the Constitution - will always have the overriding responsibility in appointing a member of the Judiciary. That is clear and evident in our Constitution and it has served us well, as Deputy Ó Cuív pointed out, in the context that this Parliament is elected by the people and Government is elected by this Parliament. Therefore, there is accountability and answerability and those members will have to stand by the decisions they make at some stage either to this Parliament or, ultimately, to the people during a general election. There are checks and balances on the broader decision-making process at Cabinet.
A major problem for Cabinet under the current process - it will even be worse under this Bill being proposed by the Minister, Deputy Ross, and sponsored by the Fine Gael Minister for Justice and Equality - is that reasons are not given as to the suitability of those who are proposed to Government for consideration, other than a list of the names being handed to Cabinet for it to make an adjudication thereon. The process will not give the reasons those people are suitable or a varying scale of their suitability and quality. Many times judges have been appointed to the Bench where nobody in the Cabinet would have been familiar with the individual. We must have a robust system if the members of Cabinet are to appoint judges through this system and where their hands are tied in making any other decision in that context because of this proposed legislation. We must have a robust system of scrutiny to assess the merits of the various applications, distil them down and present the various names to Cabinet and the reasons those people are suitable. That is very important. Otherwise, the Government will be appointing members without any knowledge as to why those people have been recommended other than the fact that they have been recommended. That is not good enough if we are passing legislation that sends out a message that there is a robust system in place to assess the suitability of the recommendation to Government to appoint members of the Judiciary.
The Minister, Deputy Ross, has been on a personal crusade on this issue for a long time. In advance of being elected to Dáil Éireann, he was previously a Member of the Seanad and he also wrote articles that appeared on the back of the Sunday Independent on a regular basis. He would have shouted from the high heavens about cronyism, sweetheart deals, pork barrel politics, grubby political parties and all that flows from that. Since he was elected to the Dáil, but more importantly since he was appointed to Government, he has not exactly exonerated himself from engaging in pork barrel politics. Rather, he has been very much to the fore of it in getting his nose stuck well into the trough by giving out constituency goodies, namely, the reopening of Stepaside Garda station. He was so anxious, enthused and excited to inform his constituents that it was to be reopened that on the day Máire Whelan was appointed to the Court of Appeal, he sat stum and silent at Cabinet and refused to open his mouth when at the very least, the decision that was being made was questionable. I am not questioning the individual who was appointed but the system and the process was very questionable. What is more questionable is the fact that the Minister, Deputy Ross, was in such a hurry to stand outside Stepaside Garda station with a banner espousing his pork barrel politics, that he had not time to disapprove of the appointment and point out that the process should have gone through the Judicial Advisory Appointments Board and that people should have applied in the normal course of events. He believes that judicial appointments and cronyism had been at the centre of all the ills of the State for many years, yet when he had a chance to stop something like this happening, he had not the time, energy, inclination or the wit. Whatever he had, I know one thing for sure, which is he was in a fierce hurry to go to Stepaside to hold up a banner to announce that Stepaside Garda station was being reopened because he insisted on it at Cabinet.
I listened to the debate. I was in the House for some of the contributions, which were interesting. Deputy Jonathan O'Brien made very valid points. He spoke in support of the Bill, but conditionally. Deputies O'Callaghan, O'Dea and many others made very positive contributions. Deputy Tóibín opened his contribution by scathingly attacking the Fianna Fáil Party for its appointments to the Judiciary over the past 50 years. He more or less said that all of the ills of society are due to Fianna Fáil and its appointment of judges to the Bench. I went back to my office and checked the various appointments that Fianna Fáil made over the past 50 years. Many of them were of no note whatsoever and left no lasting impression on the Bench, but the individuals involved did their job diligently. Some were the finest legal minds and, subsequently, very wise judges who made very profound decisions. By and large, they did their duty and were appointed by Fianna Fáil Governments, under the Constitution, in accordance with the law at the time. When they were appointed, they upheld the Constitution and worked within the law.
I then checked the appointments made by the Sinn Féin Party to see what judicial appointment it had made over the past 50 years. Of course, it ran a parallel system of justice at the time. I could not find the name of any person it appointed to its benches. I know it had systems of justice in place. Last week, I was accused by Deputy Adams of having a brass neck because I am a member of the Fianna Fáil Party. My face and my brass neck are available for public inspection at all times. The brass neck and face of Sinn Féin were not always available to the public when it dispensed justice. That is an important point. I cannot stand in the Chamber on a continual basis and be lectured by a party that had very questionable appointments to its judicial process. The only person I found who was appointed to the judicial process by Sinn Féin was Freddie Scappaticci, one of the finest dispensers of justice we have seen this country. Young boys were taken down laneways and alleyways and had their kneecaps shot and their elbows beaten in with bars. That was the justice that was dispensed.
I can stand here and say that those judges appointed by Fianna Fáil Governments were appointed in accordance with the Constitution and the law of the time. Their primary motivation when they took up their positions was to uphold the Constitution and stand by the law. I cannot accept lectures from Deputies Adams or Tóibín about what Fianna Fáil did or should have done with regard to appointments to the Judiciary. By and large, our appointments were for the right reasons. People may sometimes have had political associations. However, let us be clear. They may sometimes have had political associations with other political parties but they were still appointed by Fianna Fáil-led Governments.
The brass neck and face of Sinn Féin was not always available to the public when it dispensed justice. That is an important point because I cannot stand in the Chamber and be consistently lectured by a party that had very questionable appointment to its judicial process. The only person I found was appointed to the judicial process by Sinn Fein was Freddie Scappaticci , one of the finest dispensers of justice we have seen in this country. Young boys were taken down lane ways and alleyways, and had their kneecaps shot and their elbows evening with Boris. That was the justice that was dispensed. I can stand in the House and say that any judge appointed by the Fianna Fail Governments were appointed in accordance with the constitution and law of the day. Their primary motivation when they took the bench was to uphold the Constitution and stand by the law. I cannot accept lecturers from Deputy Adams or to been about what Fianna Fail did or should have done with regard to appointments to the Judiciary. By and large, our appointments were for the right reasons. Sometimes there may have been political associations, but sometimes people had associations with other political parties and were still appointed by Fianna Fail led Governments.
In terms of the context of the actual process of justice in this country in recent years, it is the District Court which interacts with the citizens of the country on a daily basis. As has been pointed out, there has been many a robust defence put up by a citizen in our District Court and passionate debate from passionate solicitors defending citizens. Judges adjudicating on such cases are not from an elitist imaginary group. Rather, they are people who were fairly good at doing the leaving certificate, who got the required points, who went to college and who subsequently earned degrees and became solicitors or barristers. It is more than likely they were solicitors because barristers like to climb to the higher courts a little more quickly. They are not people of elite standing; rather, they are citizens of the State who happen to be smart people. I would like to think that we would have smart people on the Bench. I would like to think that the people sitting on the Bench and dispensing justice on a daily basis in our courts throughout the country hail from all walks of life. If there was ever a move towards elitism in terms of where one comes from, that is not necessarily a failing of the judicial appointments process. Rather, it is a failing of our education system. Addressing the issue of investment in primary and secondary schools in socially deprived areas and ensuring there are access programmes for people who are unable to get to college is the real solution if there is elitism, as has been suggested by some, in the District Court. It is not a failing of the appointments process, but of our education system and broader social solidarity.
Part 5 of the Bill deals with the judicial appointments commission office and states, "There shall be attached to the Commission an office to be known as the Judicial Appointments Commission Office (in this Act referred to as the “Office”) which shall assist the Commission in the performance of its functions." With all due respect, we have many quangos in this country. I cannot understand this. The Government of the day, on behalf of the people of this country, appoints between 16 and 20 judges. In order for those decisions to made, it is proposed that we will establish an office. Part 5 goes on to state, "The Office shall be funded by moneys provided by the Minister with the consent of the Minister for Public Expenditure and Reform."
I assume the Minister for Transport, Tourism and Sport, Deputy Ross, will have to be consulted, particularly as he predominately acts as the Minister with responsibility for opening Garda stations and - in cases where the Minister for Justice and Equality is told what to do - justice. I honestly believe that, in their heart of hearts, Fine Gael Members are hoping against hope that the Bill will be defeated or, at best, substantially amended. I am quite definite about that.
Some of the measures in the Bill are quite extraordinary. The Chief Justice, Ms Susan Denham, whom I have never met in my life and about whom I do not know anything, is eminently qualified and sits in the highest court in the land, as outlined by the Constitution. She will not be allowed to chair the appointments commission. I have no difficulty with laypersons being on the commission but at the very least the Chief Justice should chair it.
Questions were asked as to whether we trust juries to dispense justice. Of course, we trust juries throughout the country to dispense justice. We would be very concerned, however, if a proposal to appoint the chairmen of juries as judges and appoint judges as members of juries were put forward. We would raise eyebrows about such a proposal. I suggest that the office of the President of the Supreme Court be afforded respect, not in a deferential way but in the context of its importance as a constitutional position and that the holder of the office be appointed to chair the appointments commission. At the very least, that should be done.
When the Minister of State goes back to the Department, she might take note of what has been said not just here but by many others who have concerns. It would be nice if we could get broad political support for a Bill that will address the accepted flaws in the process by means of which we appoint judges in order to ensure that the best people are always appointed and that those who may have political affiliations or who may have had such affiliations in the past will not, regardless of the nature of those affiliations, be penalised if they are best qualified for particular positions.
I urge the Government to withdraw this Bill so that this process can be revisited. Given the pace at which justice and politics move in this country the judicial system or the political system would not grind to a halt in a couple of months. I do not commend this Bill: I condemn it.
Deputy Kelleher's face and brass neck may be open to scrutiny but that is not the case in regard to all in the Fianna Fáil Party, particularly some previous Taoisigh in respect of whom tens of millions of euro was spent on investigations because their faces and brass necks were not open to scrutiny. I refer the Deputy to all of the tribunals that had to be conducted in this country to get to the truth.
I have been struck by some of the comments from Fianna Fáil, in particular the flowing rhetoric of Deputy O'Callaghan about the separation of powers and the sanctity of the Judiciary. His emotional rhetoric was so strong I thought at one point that he was going to break down. Given the language used one would think this Bill was a revolutionary assault on the judicial system in this country and that the entire legal apparatus of the State was under threat. Dire consequences will ensue if God forbid lay people were to meddle in the sanctity of the work of the judicial system. All sorts of horrors would unfold if the barbarians were to breach the walls of the King's Inns. Perhaps the most hilarious comment was that the Solomon-like wisdom of our impartial Judiciary could be fatally compromised, and the process sullied, by virtue of a majority of laypeople on an appointment board or commission.
Listening to Deputy O'Callaghan one would be forgiven for thinking that the right of the King's Inns inherited from the British Crown - the legal system the British gave us - is all that stands between us and some sort of apocalypse. We are told that judges and the wider legal system are independent, fair and impartial and that judges are skilled and learned wise people with such specialist and accumulated knowledge that no one, certainly not a layperson, could deign to play any role in the dispensing of law. I find this hilarious, as would most working class people who have had dealings with the legal system and the dispensation of justice. I have listened to judges outlaw strikes, grant injunctions against protesters, sentence poor people to prison and defend the rights of private property over human and economic rights, as evident from the tens of thousands of evictions that have taken place in this country to favour the banks and the building societies.
My overwhelming impression of our Judiciary and legal system is that its number one defining element is not justice and impartiality or non-politically deciding on matters like King Solomon on impenetrable law or legal points. It is a class-ridden system that dispenses law, not justice, in a class-ridden way and on behalf of a particular class. I will reiterate what other Deputies have reported from The Irish Times about the road to becoming a barrister:
...it can be "prohibitively expensive" and the financial drain sometimes makes it impossible to continue practising law.
The Barrister-at-Law (BL) degree at the King's Inns costs €12,560. For would be barristers without an undergraduate law qualification, a diploma or legal studies required before the BL, it costs another €12,560.
Fledgling barristers have to "devil" with an experienced barrister (a "master") for at least one year and often two years or more. This mandatory work experience is unpaid. A master might pay a devil's expense but it is at the master's discretion.
This is generally but not always the case. For example, I know a young barrister from Ballyfermot, an area with a very dense population, whose family, which is a large family, had to endure great sacrifices to ensure he had that education - one barrister from an area the size of Ballyfermot. Let us not pretend that this is an open profession or a representative group of Irish citizens. By its nature, it is overwhelmingly the higher classes and the wealthy who attend the King's Inns and become barristers.
In regard to how we currently select judges, listening to Fianna Fáil Members one would swear there was some elaborate process that sifted the great and good and selected them on the basis of their accumulated knowledge and nothing else. One judge, a Fianna Fáil appointee, told us in the media last year that at least one third of the Judiciary are straightforward political appointees selected for their political alliances. If Fianna Fáil is in government, we get Fianna Fáil judges, selected not for their wisdom but for what cumann they were in. If Fine Gael is in government, we get Fine Gael judges, again selected not for their wisdom but for what networks they built up when in Young Fine Gael branches in college. Despite the hype and the mystique that Fianna Fáil and others are attempting to spin the deciding factor is not their accumulated academic Trojan work or the legal tracts that they have published but the group of select friends they made when in Young Fine Gael or Ógra Fianna Fáil during their attendance at various colleges, or the spurs that they earned in the L&H debating societies.
For those who argue against this Bill to say that what is in place is a perfect system and we risk collapsing it by sullying it with a majority of laypeople on a commission is an insult to our intelligence. This is not a radical proposal. It is a mild change that will not fundamentally alter the class nature of the legal system in this country. It will sift candidates by wealth and background before they get to the Bar much more robustly than any appointments board can do. It is telling that barristers, judges and Fianna Fáil are intent on keeping the system as is, a system that is clearly political, elitist and class-ridden. Solidarity-People Before Profit wants greater radical reform. We do not believe in the myth that our legal and judicial system is impartial, non-political and based on merit. We want it to be much more accountable and open. We have faith in ordinary citizens and their ability to dispense justice and fairness. The law as it is practised requires the old boys' networks of Fianna Fáil and Fine Gael, with the odd crumb thrown in for the Labour Party when part of a coalition Government. This Bill will not change or challenge this but it opens up the system to scrutiny and we welcome this. We will seek to push it further and we will seek greater democracy and transparency in the system. A majority of laypeople on the commission will not signal the start of any revolution but it opens up debate on this area.
I am unsure about the appointment of the Attorney General to the commission. It is clearly a political appointment and this should not happen. There should not be an emphasis on the financial or commercial expertise of appointments rather the emphasis should be on social diversity and class diversity. We propose to table amendments to that effect and to open further the slight crack that this Bill provides into the class-ridden judicial system in this country.
The genesis of this Bill is not new politics or reform but the worst kind of grubby old politics, a deal done with undue haste to satisfy a pet project of an Independent Minister who seeks to hold the Government to hostage. The Government, led by Fine Gael, the party of Collins, O'Higgins, Cosgrave et al, which claims to be the genesis of this State has unashamedly bowed to the Minister in respect of this particular hobby-horse of his. One wonders to what new low it is prepared to stoop to allow this Government to shuffle towards the summer recess.
The crusade of the Minister, Deputy Ross, in respect of the Judiciary is reminiscent of the worst excesses of the jingoistic, little Englander, Brexit yellow press - my grandfather called them "The Tory Papers" - which engaged in an anti-judicial assault during the Brexit debate. The front page of The Daily Mail was festooned with pictures of Supreme Justices, named and shamed as enemies of the State. There was shock horror and indignation that one of them even spoke a continental language, among their rabid culture of the Brexit debates. Unfortunately, this type of anti-electoral tyranny appears to be at the heart of this Bill. Having been kept at bay, thankfully, for close on 12 months because wiser minds in Fine Gael prevailed, despite the promises during the formation of Government, the Bill was advanced following the recent scandal. The Bill is now being progressed at shocking speed at the expense of all other business.
As an Opposition first-term Deputy trying to submit Private Members' Bills and work them through the system to reach even First Stage, it is shocking to see the speed with which all other business has been disregarded and cast aside so that the hobby-horse of one Independent Minister can take centre stage and be the subject of 19 hours of debate this week and possibly more discussion next week. That undue haste is matched only by the unseemly speed at which the Taoiseach sped to the Phoenix Park, at least metaphorically, the previous Sunday to prevail upon the President to fast-track the appointment of the former Attorney General in order to cover his and the Government's blushes.
It is also notable that since the Minister for Transport, Tourism and Sport, whose Bill we all know this is, took office, his Department has published only one item of legislation. As my colleague said few moments ago, perhaps he is the Minister for Stepaside Garda station but he is certainly not the Minister with responsibility for transport because we see problems across the transport sector, with creaking park-and-ride facilities, a lack of investment in the motorways and the entire greater Dublin area suffering from a lack of commuter infrastructure. I was not surprised to see very little substance in replies to parliamentary questions yesterday because I am accustomed to it at this stage. The greater Dublin area transport plan was produced and then forgotten as quickly. Perhaps the Minister would be better advised to concentrate on his own Department.
With regard to the one item of legislation he did introduce, on the Order of Business prior to Christmas I was obliged to remind the Government that implementation of the provisions of the Vehicle Clamping Act 2015 was long overdue. That legislation was originally introduced in 2014 but I was obliged to raise the matter with the Taoiseach in December 2016 to ask when its provisions would be brought into force. Thankfully, the process in that regard has commenced but it took some prodding to make it happen. This is in stark contrast to the speed and passion with which this Bill is being pursued.
It is certainly the case that Fianna Fáil sees the need for change in the judicial appointments system and we are open to this suggestion and reforms. One is reminded of old politics in the sense that Deputy O'Callaghan proposed a very detailed, thorough and considered Bill on which he had been working for some time. There was cross-party support for and interest in the Bill in question from Deputies on all sides, and particularly those on the Opposition benches. Many Deputies spent time finessing proposed amendments to the Bill, none of which ever actually got off the ground because, unfortunately, the Government, falling back on the worst type of old politics, found it was a money Bill and would involve a charge on the Exchequer. The latter meant that the Bill could not be progressed. The financial charge on the Exchequer would have been slight, but it was nonetheless used as an excuse by the Government to avoid dealing with the substantive matter until now, with the Minister for Transport, Tourism and Sport, Deputy Ross, successfully bringing it back onto the agenda.
Even now, when it has effectively admitted its error in the handling of, and procedures used in, the recent appointment of the Attorney General to the Court of Appeal, will the Government concede that an apology is due to the three High Court judges who were overlooked, disregarded and ignored and who had made their cases clear to the Attorney General - we understand the Tánaiste was aware of the latter - but whose applications proceeded no further? Will the Government even have the good grace to issue an apology to those three judges, who went through the correct procedures and channels and yet their cries fell on deaf ears? An apology would be welcome. They did everything right in terms of applying through the appointments board and informing the Attorney General. While the appointment may have been within the letter of the law, it certainly was not within the spirit of it.
There have been repeated and substantial observations from senior members of the Judiciary, the Bar Council, eminent judges, judicial experts and experienced commentators in recent days, all offering stark warning in the context of the advancement of the Bill. Yet it appears, as per the worst excesses of Brexit, that we have had enough of experts. The likes of the President of the Supreme Court, the Chief Justice, the President of the Court of Appeal, the President of the High Court, the President of the Circuit Court and the President of the District Court are all to be disregarded. We have had enough of experts. Their joint letter to the Taoiseach was an unprecedented step. The Government has refused to engage and publish it. This is a first in legal history. The substantive concerns raised in the letter are unprecedented in the history of the Irish State, but some members of the Government are determined to press ahead, although we have heard welcome concerns raised from the Government benches in recent days. The Minister, Deputy Ross, knows better.
It is reminiscent of when the Government attempted a power grab on Dáil committees not so long ago. At that point, it was forced to consult the people in a referendum. At the time, seven former Attorneys General signed a letter and published it in The Irish Times warning against proceeding in that regard. The Government went ahead regardless. It had had enough of experts. We see the same pattern today. Thankfully, on the occasion to which I refer the people put a brake on the Government's advance. The mandate of the people was sought at the ballot box and they said "No, enough is enough". People rightly put a halt to the gallop of those involved in that power grab. In the same way, an attempt was made to abolish the Seanad shortly afterwards but the people also put a halt to that. They respect the separation of powers and the Houses of the Oireachtas even if, perhaps, the Government may not always do so.
On Tuesday evening we heard how the most fundamental layer of local democracy was also whipped away by the previous Government, when town councils were abolished by the then Minister with responsibility for the environment, Phil Hogan. At least the Labour Party, which was a substantial part of that Government, has had the good grace to admit regrets about this move and express its concern. It has had the courage to do so and yet the Fine Gael Party, which remains in power, has had no such Damascene moment and has not yet considered the error of its ways.
Recently the Taoiseach spoke in the House about a book club. He spoke about books he might recommend for people to read over the summer recess. One of these books is Hillbilly Elegy by J.D. Vance, which I read recently. It is a good read. It was one of the Taoiseach's favourites and he regaled us with tales of it. However, I am not sure whether he has read it yet - perhaps he will do so on his summer break - because if he had done so, he surely would have learned from it a tale of a dysfunctional society, fake news, a distorted value system and a dysfunctional anti-establishment, anti-intellectual frenzy that ultimately elevated President Trump to power. The Government now appears to be engaged on the same type of cowboy crusade against the Judiciary.
Continuing with the book club theme, I will consider another volume, The Irish Constitution by J.M. Kelly, a seminal work known to law students for decades. It is probably the most authoritative work on the Irish Constitution. It is littered with references to judicial independence, the importance of the independence of the Judiciary, respect for the office, respect for the Chief Justice and respect for the State. At one point in the book, Kelly suggests that any attempt to interfere with the system of judicial appointments would be unconstitutional. It is notable that the late John Kelly was a previous occupant of the seat now held by the Minister, Deputy Ross. The late John Kelly was a Fine Gael Deputy for many years. He was a Minister, he served as Attorney General and he was an extremely eminent and distinguished legal academic. Could he ever have foreseen that his beloved party, Fine Gael - the party of law and order - which he served so well, would cast aside his ideas and volumes and all the decades of legal thought behind them?
Turning to the substance of the Bill, the concept of a lay panel, a lay chair and the anti-judicial bias, there is no evidence that these are required or necessary. Dr. Eoin O'Malley published research in April which shows that there is no evidence to back up the contention that political appointments or appointments that are politically influenced have any bearing on the exercise of functions, or the outcomes of same, or on the performance of the judges. In that context, the position here is in stark contrast to the United States, where Senate hearings, appointment hearings and ratification hearings are highly politically-charged affairs and where and Supreme Court vacancies are kept open for years. In some cases, such as the vacancy arising from the death of Justice Scalia, no appointment was made because the partisan tensions in the US Congress are so extreme and great that agreement could not be reached. We have not seen this system in Ireland. This has not been the case. In fact, evidence would suggest that Fianna Fáil Governments certainly reached across the floor in every sense and appointed many judges who may not have been of the same political persuasion. Academic evidence confirms this. Dr. Eoin O'Malley's recent paper highlights the fact that political appointments or appointments that are politically influenced have no bearing on judges' performance of their functions or duties.
We do not have such a politically charged, highly partisan approach to the Judiciary as may occur in some other jurisdictions. Ireland is not the United States; ours is not a partisan culture. I think reference was made earlier today to Ruadhán Mac Cormaic, who carried out a study of the Supreme Court going back over 80 years of jurisprudence, the Judiciary, evidence and decisions. Mr. Mac Cormaic, in his article in yesterday's edition of The Irish Times, stated "if you were to be asked to come up with a way not to design a piece of legislation, this would be it". That is Ruadhán Mac Cormaic, an expert on the Supreme Court - but we have had enough of experts. Again, there is no evidence of any kind of excess or persuasion. I would tend to think, "If it is not broken, do not fix it", but perhaps the Government or the Minister, Deputy Ross, knows better.
I ask the House to consider the international experience across the common law world. We are part of the common law judicial system, another reason it is imperative judges follow within the ranks and follow certain procedure. That is how law is made. In the common law system, the system of precedents and stare decisis is exactly how these decisions are arrived at. We can compare Ireland with other jurisdictions across the common law world. New Zealand, for example, is considered to be the country affording the greatest degree of freedom to the State and the Government in terms of judicial appointments. The way in which New Zealand conducts its appointments to its Judiciary represents the greatest freedom in terms of the Government having the most latitude. Yet it is ranked first for judicial independence and judicial integrity. Despite many claims, much debate and suggestion to the contrary, primarily from supporters of the Minister, Deputy Ross's Bill, Ireland is ranked fourth. That is not bad. England and Wales, whose system is probably the closest in the common law world to the system the Minister, Deputy Ross, wants to introduce, is ranked sixth. That is within the top ten but far behind Ireland and behind New Zealand, which has no such system in place. It does not lead to better outcomes.
The language of this obsession with a lay majority and the idea that nothing but a lay member will do is wrong. The concept of judicial versus non-judicial is also unclear and there is a gratuitous disregard for the Chief Justice. It would appear the judges targeted in this legislation are excluded and forced into a minority position and it appears to be a form of perverse logic that they are precluded by virtue only of having professional expertise in the field in which they are asked to make considerations. They are excluded for knowing something about it because we have had enough of experts. It is wrong for any appointment to be made on the basis of political bias but it is equally wrong to suggest that a politically involved individual should be excluded from any elevation or career progression.
In the past few days, we have heard much talk of the King's Inns, to which I will return in a moment, but it is worth considering some of the political alumni from that institution. We can look to Wolfe Tone, Robert Emmet, Daniel O'Connell, Patrick Pearse, C. J. Haughey, Garret FitzGerald, Mary Robinson and Mary McAleese, to name seven or eight. The concept that a political appointee is somehow to be excluded from consideration for judicial office is a nonsense. Many of the most eminent politicians, statesmen and leaders who have served this State graduated from King's Inns or the Law Society at Blackhall Place because the two go hand in hand. That is, the practice of the law and the practice of politics have so much overlap and so much interest in the Constitution and the way in which the State functions that the type of individual who pursues one invariably pursues both and that is normal across the western world.
If one were to analyse why there may be difficulties in appointing judges, perhaps one would find it is less to do with the system and more to do with the reality that the attractiveness of judicial office has been diminished in recent years by the Government in many ways - in practical ways, such as in respect of pension entitlements and salary. There is often very little sympathy in this regard because people do not like to talk about politicians, judges or holders of senior office, but the reality is they are experienced, qualified people. It is a reality that a senior counsel will earn more at the Bar than by taking judicial office. The new pension rules mean that senior counsel will have to wait 20 years to accrue pension entitlements. Considering it takes the guts of 20 to 30 years to build up a practice after study for five, six, seven or eight years and five, six or seven years of devilling, by the time one is advanced in one's career or reaching career peak, one is probably ten or 20 years away from retirement, usually the former. These kinds of pension rules and changes to entitlements are therefore an inhibitor to people joining the Bench and taking on appointments and perhaps this should be considered.
Another point that should be considered, and it is recognised and has been amplified in this debate, is the political culture that has pervaded the Judiciary in recent years and the clashes. The separation of powers has not been observed, despite many claims to the contrary, and the Government again paid great lip service to this in recent weeks. The temerity of any Member of this House or anyone else to question the Judiciary was challenged, yet it is the Government itself that has led an assault on the Judiciary over the past number of years, which has led to a highly charged atmosphere in which judicial appointments are less attractive at this point than they once were. It is a fact that for many judges, it is an extremely stressful environment and there are difficulties in the position. The role of judicial integrity and political perspective, that increasing conflict, makes many less inclined to make that leap. Again, the position of Chief Justice, the highest judicial office, is needlessly assaulted in the Bill. We respect that office. We respect the office of the Ceann Comhairle. We respect the office of the Taoiseach. We bow when we enter the Chamber. That is correct and proper and these are high constitutional offices which deserve respect. The Chief Justice is, for no other reason than being gratuitously inflammatory, being reduced to a bit-part player on these judicial committees.
It is also true that the Cabinet, even if this Bill were in place, could still ignore the recommendations proposed. In Deputy O'Callaghan's Bill, that is, the Fianna Fáil Bill that was introduced, if the Cabinet were to ignore a recommendation from the appointments board, it would have to produce a good reason and a statement stating why it had done so. In the Bill before the House there is nothing of the sort. The Bill could pass the Houses and be entered into law and signed by the President and the same thing that happened two weeks ago could happen all over again. There is nothing in the Bill to address the recent controversy and this must be considered by all in the House before we proceed.
There is also a potential conflict of interest with the Attorney General sitting on the board, the same board that makes and then accepts the recommendations. Nemo iudex in causa sua, as one would say at the Bench, but this clear conflict is contained, writ large, in the Bill. There are measures against former judges and many others.
I am conscious of the time but references have been made in the past few days to the King's Inns establishment and practice and study at the Bar. It is worth putting on record that not every applicant who walks into the King's Inns has a silver spoon in his or her mouth. Many, including myself, worked in other walks of life, had other jobs, finished a day's work and cycled over to night studies at the Bar. I was fortunate to be working in Dublin at the time, so the King's Inns was only a short distance away. I studied at weekends and by night. Many come from the country - from Galway, the west, all corners of the island - and that traditional route of night study, evening diploma and weekend course in the King's Inns is very valid. In fact, our former Taoiseach, Jack Lynch, went along the same path and there are members of the Supreme Court who did the same, so the idea that the Bar is this elitist, unattainable, inaccessible institution is simply untrue.
I call Deputy Thomas Byrne and ask him to propose the adjournment of the debate.
I want to say one thing before I propose the adjournment. How dare Fine Gael line up with Sinn Féin to transform radically our Judiciary?
It is an absolute outrage. How dare Sinn Féin-----
-----give its unqualified support to the most controversial legislation?
The Deputy did not read my speech-----
At least when we facilitate this Government, we do so on the basis of achieving something for our voters. Sinn Féin has given unqualified support to the Bill, and Fine Gael is disgracefully lining up with Sinn Féin on it. It is absolutely outrageous. They are bringing the whole system of administration of justice into disrepute.
That is what this unholy alliance will do.
Come off it.
I propose the adjournment. I will speak on the substance of the Bill when we resume the debate.
The Deputy might get his headline now.