Skip to main content
Normal View

Dáil Éireann debate -
Thursday, 28 Apr 2022

Vol. 1021 No. 3

Judicial Appointments Commission Bill 2022: Second Stage (Resumed)

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

Significant recommendations were made during pre-legislative scrutiny and many of them are important. I acknowledge that. The Minister did not accept some of the recommendations, however. First and foremost of these is the recommendation for the names of three nominees to be ranked in order of preference. Should the Cabinet decide not to go with the recommended ranking, it would have been required to provide a written reason for doing so. This is really crucial and it is one of the main points I will cover.

The ranking of candidates has been very specifically asked for by senior judges, legal academics, the Judicial Appointments Advisory Board, GRECO, the Irish Council for Civil Liberties, the Irish Human Rights and Equality Commission, the Law Society and the Bar Council. How could we, in good conscience, ignore this when many legal experts and anti-corruption bodies have been seeking this measure for some time? Allowing the commission to provide the Government with a small number of ranked candidates would only provide greater transparency and limit the degree of real or even perceived political influence exercised in making judicial appointments. What is the purpose of the Bill if it is not for that?

If the Government is serious about reforming the judicial appointments system, this must be done. We cannot have a repeat of the Judicial Appointments Advisory Board, JAAB, Bill where reforms fell short because there was a reluctance to relinquish political control. We need a proper merit-based appointments system for judicial appointments. The Minister cannot, in good faith, say the Bill will achieve that goal without candidates being ranked.

A ranked list would not be unconstitutional and it is disingenuous to suggest all those legal bodies in the country have somehow got this wrong. The Executive would, of course, retain discretion in the appointment of judges and it can be explicitly indicated that the ranking is not binding but merely advisory. If the Cabinet chooses to pick a judge who is not ranked first, it would be entirely possible for it to do so. All the benefits of the independent merit-based assessment would be undermined if three unranked names were to be sent to the Cabinet, as the coalition partners could divvy the names between them. All the accountability and transparency we are building into the appointments process will fall at the last hurdle if, in essence, we retain the exercising of political choice over judicial appointments. We are trying to get away from that. The GRECO evaluation team explicitly criticised the proposal to have an unranked list of nominees sent to the Cabinet and called on the Government to really tackle the matter of Executive influence over the judicial appointments system.

The argument given during pre-legislative scrutiny against the ranking of nominees really does not stand up. It was argued that excessive constraints on the discretion of the Executive may be unconstitutional but the Executive would not be bound by ranking, which would be purely advisory. It was argued that some nominees may be of equal merit and that can be catered for by having a joint position. It is perfectly possible to do that. It was also argued that ranking would result in possible reputational damage but the entire appointments process protects candidates from such damage. The selection process is exempt from the freedom of information framework, for example, and the Cabinet is bound by Cabinet confidentiality.

There is no doubt that amendments will be put on Committee Stage seeking the Minister to accept the change so we can get ranked candidates. I ask sincerely that the Minister would seriously consider the matter. It is a mistake and its consequences can be foreseen. This undermines the very objective we are trying to achieve.

Like previous speakers, I also have concerns about the role of the Attorney General in the process and ask if it is appropriate. The Attorney General would not have a vote in the selection process but it is undeniable the Attorney General would play a central role. We all know we look to certain people for influence and advice, etc., and there is no doubt the Attorney General would be in such a position. When the names are sent to the Cabinet, the Attorney General would again have a significant influence on the final pick. Nobody doubts the qualifications of an Attorney General but it is a political appointment nonetheless and having a representative of the Government at the judicial appointments commission would undermine its supposed independence. Others have made the point as well and I would like it considered seriously.

It is not standard in other jurisdictions that a position like the Attorney General would have this role. The Attorney General is also responsible for purchasing many legal services in the State and there are significant risks of conflict of interest that need not arise if a change is made to the Bill here. If the Government decides the nominees should remain unranked because it wants to make a decision as independently as possible, the Attorney General should not be involved in the judicial appointments process.

There is also an added complication whereby many Attorney Generals take on a senior role in the Judiciary when they leave office. With that being a well-established precedent, it is entirely inappropriate for the Attorney General to sit on the judicial appointments commission. I am looking for that be re-examined.

There were some blanket comments made that we have all been well served by the Judiciary. At times we have not been. Some of the changes will be helpful, for example in terms of training. Sentencing can be very inconsistent. We might look at the kinds of resources that have been put into designing and upskilling judges in other jurisdictions. The UK would be a case in point. It is not just about legislation. It is about the resourcing, in order that we do work that builds confidence. I say this because on occasion people will ask about it. This is particularly true in cases where there has been a sexual assault. It is hard enough to get people to go to court. Sometimes there will not be a custodial sentence for a crime that is on the high end of the offences. I think that undermines the Judiciary. The resources will be just as important in building up that capacity.

The number of judges is another issue. Again, the legislation does not necessarily deal with it. While you can have very good legislation, if do you not have the resources to deal with matters appropriately, you will have difficulties. In the District Court, for example, the priority will obviously be given where there is a criminal case. As a result, civil cases and planning cases can take years to go through the District Court. Sometimes they get scaled up to the Circuit Court. Sometimes you find an injunction at High Court level because the District Court takes too long. There is a huge waste of time at local authority level, for example, when people go down to the courts to wait for a case so that they can get a date, but it keeps being postponed. There is a real issue with the capacity to deal with the number of cases at every level. I ask the Department and the Minister to take that on board.

The point and provision that has been made for diversity is important. That goes across gender, socioeconomic status, people’s racial background and maybe their experience in other jurisdictions. It is important that we see it in practice. It will be important to see how that happens in practice, given the closed environment that is in place in some aspects of the system. It will be necessary to get to a point where we get the kind of diversity that is needed to have an understanding of people’s lives. We do not want the kind of potential groupthink whereby the Judiciary is drawn from the same socio-economic cohort and background, for example.

Those are my main points. There is a lot to be welcomed, as I said when I started speaking on this Bill yesterday, not least that the Bill has come before us in the first instance. However, changes are required. The changes in relation to resourcing issues will require much attention if we are see our criminal justice system functioning as well as it can.

I spent much of my time in the previous Dáil debating judicial appointments commission Bills. I am sure the Leas-Cheann Comhairle contributed to those debates as well. I am sure Deputy Martin Kenny, who I see across the Chamber from me, did likewise.

I bring to this debate a certain amount of knowledge of those Bills, which ultimately got caught up in the politics of the last Dáil, unfortunately. In October 2016, my Fianna Fáil colleagues and I introduced a judicial appointments commission Bill. It got the support of the Government on Second Stage. It then went to Committee Stage, but it did not get through Committee Stage because the Government decided not to provide a money message for it. However, the Government said it was committed to introducing its own judicial appointments commission Bill, and that was subsequently introduced in May 2017. The history of that Bill's progress through the Houses of the Oireachtas could be written in about four volumes. It got through the Dáil fairly rapidly and then it went off to the other House, Seanad Éireann. In fairness to the then Minister, Deputy Flanagan, I think he spent 30 or 40 days there debating amendments to the Bill, which ultimately was not enacted. In fairness to the Houses of the Oireachtas, I think that we were right in the last Dáil and Seanad not to enact that legislation because it was not good legislation. Unfortunately, it got wrapped up in the politics of the last Dáil.

We need to be clear that we should try to get consensus on this. It is difficult to try to set out a statutory mechanism pursuant to which people would be recommended to be members of the Judiciary. As we have all stated before, on balance we have been well served in this country with the Judiciary we have had since independence. The most important feature of the Judiciary is that its members have been independent. They have been able to say to governments, “You are not allowed to do that”. They have been able to say to the Oireachtas, “We are striking down legislation because it is unconstitutional and infringes the rights of others”. They have been able to do so without any fear of the consequences. The reason they are able to do it without fear of the consequences is because it is extremely difficult to remove a judge in this country, as it should be. The last thing we want is the type of tyrannical regime we see in other countries, whereby judges whom the government does not like can be removed very easily.

We have never really had a satisfactory mechanism or scheme for the recommendation of people to be judges. I want to point out that it is a difficult task to do. First, it is difficult because you are selecting from a very small group of people. The only people who are eligible to become members of the Judiciary in this country are qualified, practising lawyers: qualified, practising solicitors and qualified, practising barristers. That will be changed under this legislation. I welcome the fact that it will now be extended to include certain legal academics who also have experience of practice. However, necessarily, you are dealing with a small number of people.

I am conscious of what Deputy Catherine Murphy has said about increasing diversity. That will happen once the professions reflect increasing diversity. We have seen it happen already with gender balance. Approximately 20 or 30 years ago, very few women were on the High Court. Mella Carroll, as the Leas-Cheann Comhairle will remember, was the first woman appointed to the High Court. The main reason for that was that very few women were eligible for appointment to the High Court. That has considerably changed over the past ten years. This Government and the Minister are to be commended on the appointments that this Government has made. There has been virtual gender balance in the appointments to all the courts.

It is a difficult task to do. You are trying to identify what type of person you think would make a good judge. My experience is that people who are good lawyers do not necessarily make good judges and, similarly, people who are bad lawyers can sometimes make good judges. I emphasise that it is not possible to be a good judge unless you have a good understanding of the law. You could be a bad lawyer or, I suppose, an unsuccessful lawyer, but make a very good judge. However, in order to be a judge, the fundamental requirement is that you have a good understanding of the law.

We might look at other countries. It is obviously a political issue in the United States of America as to who is appointed for instance to the US Supreme Court. Fortunately, we have overcome that issue in this country. In this country, we resolve our complex social issues through political debate and, ultimately, through referendums. That is how we have dealt with contentious social issues in the past ten to 15 years. In the United States, they do not do it like that. They do it on the basis of how the US Supreme Court interprets their constitution. Necessarily in the United States, therefore, it will be a political decision as to who is appointed to the US Supreme Court. We have seen that in recent years with the appointments to those courts.

One of the contentious issues about this Bill has been what is contained within section 9, which relates to membership. The Bill I introduced in October 2016 proposed 12 members.

In the Bill that the Government proposed in 2017, there were 13 members. In this Bill, there is a proposal for nine members. Having looked at all three Bills again, this one is better than mine and the one the Government previously published in 2017. It is far better-off to have a situation in which one does not have the President of the High Court on a statutory body that advises on appointments to the District Court. It makes much more sense just to limit the body to the president of the court where one seeks to make a recommendation in respect of a judge.

I know the fact the Attorney General is included in the statutory body under section 9 is contentious. My recollection of the Bill that Fianna Fáil introduced before is that he or she was not included. The reason for that was one would have the Attorney General at Cabinet. What would be the purpose of having him or her there at the early stage? However, I have to say that ultimately when it comes to ensuring that good and qualified people are nominated to be judges, the Attorney General plays an absolutely crucial role. I commend the current Attorney General on the nominations he has advised on so far.

On balance, it is not something about which we need to have a huge row. He is on this statutory board but he does not have a vote. One of the most powerful parts of the legislation is section 51 which expressly states that the Government cannot consider for nomination anyone who is not recommended. That certainly goes further than any other legislation. On balance, I welcome it. Let us take our time and get it right. I commend the Minister of State, Deputy Browne, the Minister, Deputy McEntee, and the Attorney General for the excellent work.

There are concerns with this Bill. I hope the Minister will take on board the amendments we and others will bring forward to improve it. There are and have been concerns with the Government's role in judicial appointments over the past couple of years. The Oireachtas Joint Committee on Justice did not agree to waive the pre-legislative scrutiny, PLS, on this. More importantly, the Minister has had to correct the record on responses to parliamentary questions.

The days of the old boys' club has to end. People voted for change because they are sick of friends helping friends and of the State being run by a cosy circle and the revolving doors of Fianna Fáil and Fine Gael. Confidence in Government appointments is extremely low. We see this from the issue with Tony Holohan and Katherine Zappone. This Government has shown again and again that it is not capable of transparency and accountability. It is time for a general election. We do not need a Taoiseach to be under criminal investigation and that is where we will be if things do not change in the coming months. We need a new leadership and a new vision. That is what Sinn Féin will deliver.

I will discuss another topic briefly, namely, antisocial behaviour across the State and in Cork city and my constituency in particular. There are huge problems which Deputy Ó Laoghaire has raised here in areas he represents such as Carrigaline and Douglas. It is the same in my constituency. There are nightly occurrences of people burning bins, graffiti, damage to cars, antisocial behaviour, homes being attacked, intimidation, violence and joy-riding. This occurs throughout my constituency from Knocknaheeny to Mayfield to Farranree. Gardaí on the ground are doing their best but the problem is they do not have resources. We need joined-up thinking. We need gardaí to have the ability to tackle these gangs-----

It is the Judicial Appointments Commission Bill 2022.

Yes. I appreciate there is considerable work to be discussed in this Bill. It is vitally important. We talk about the Judiciary but ordinary people on the ground have to feel protected and safe. I ask the Minister of State to raise that at Government.

I thank the Leas-Cheann Comhairle and the Minister of State for the opportunity to speak on this Bill which I welcome. I agree with Deputy O'Callaghan that it is the best of the iterations that have come out over the past number of years. I thank the Minister of State for the response to the Oireachtas Joint Committee on Justice recommendations and the work on the Bill.

In response to Deputy Gould, the Judiciary has among the strongest support from the people in terms of institutional independence. It is internationally recognised in the top ten along with other countries such as Norway, Finland, New Zealand and Australia. New Zealand in particular is interesting because it appoints all its judges entirely by political means with no external reference. It is the attorney general who leads on that point. Therefore, it are not necessarily connected that political appointments mean a judiciary that is not respected or independent. It is much more complex than that.

Deputy Catherine Murphy said that the reform of the judicial appointments system in 1996 fell short of real reform. It was a real reform because before then the Government could appoint absolutely anybody it wanted as long as that person was ten- or 12-years qualified. It made a considerable reduction on political discretion for the Government. Instead of the universe of people being everybody who was qualified, it was now the seven names recommended by the Judicial Appointments Advisory Board. What happened was not the application of the legislation by the Government but most bizarrely by the Judicial Appointments Advisory Board which was set up and given extraordinary powers to reduce the universe of Government discretion from everyone who was qualified to the people who applied and the seven names it recommended having assessed them. From approximately 1995 to 2002, it recommended approximately seven names as the legislation described. It had the power to recommend fewer than that if that was what it wanted to do. That happened until 2002 or 2003.

At that time, the membership of the board decided to take a different approach which was to recommend all of those people who were not unsuitable. It got senior counsel advice to say whether the board was acting constitutionally. I do not know why it needed senior counsel advice when one looks at the composition of the board which included the Attorney General, the Chief Justice and the President of the High Court. It reinterpreted its own function under the legislation. I do not know why. I have never managed to figure out why it did it. However, the effect of what it did, which was not at the request of Government or the Oireachtas Joint Committee on Justice, Defence and Equality and was never reviewed in any meaningful way, was to recommend all of those people who were not unsuitable. If one had 150 applications for a District Court position, approximately 100 of those would be deemed suitable under the Act. Instead of recommending seven out of the 100 suitable, it recommended all 100, which gave all of the political discretion back to the Government. It was not at the Government's request or behest, but because of the decision-making of the Judicial Appointments Advisory Board. It is genuinely inexplicable.

That continued until 2014 or so when it was described publicly. It then brought its practice back to in and around seven. The question of political discretion is bandied about as though the Government wants it all the time and is trying to acquire as much as possible. The Government actually restricted its own discretion in 1995-96, got it all back from the Judicial Appointments Advisory Board, pointed out the problem and the discretion was reduced again. It is just not true to say it is some sort of cosy cartel of the Government trying to grab all this discretion for itself at all times. It is just not the way it worked. It was the procedures of the Judicial Appointments Advisory Board.

The other things it did not do well unfortunately was that it never interviewed. Despite having the statutory power, it never interviewed anybody. It could have but it did not for various reasons, mostly because it felt it did not have the expertise or capacity to do it. What that meant was that the Government had no real detail about who was being recommended to it or why.

We talk about whether it should be ranked. The political discretion point I make is important because it is an important constitutional point. However, it does not really matter if the Judicial Appointments Advisory Board or the commission will not engage in serious analysis of the candidates in a professional way, in the way that the Public Appointments Service does and Top-Level Appointments Committee, TLAC, do, and give quality information to Government about why it has picked this person and the person's relative merits and strengths and make an analysis.

It is perfectly possible to have candidates of equal merit who are candidates for very different reasons such as a very good commercial or criminal lawyer. There are many different types of candidates and it is important for the Government to make political choices between those people but they are not political choices with a capital P. They are not party political choices but subtler political choices such as that made by the Government in 2011 to remedy the gender deficit on the courts. That was a political choice to have two out of every three appointments being female. Those are the sorts of broad political choices that are needed.

I discussed this with Deputy McLoughlin, as he was in 2014 or 2015, on the Oireachtas Joint Committee on Justice, Defence and Equality and pointed out that if he or Deputy Kenny were Minister for Justice, they might wish to make broader political choices between three competent qualified people who have been assessed under a statutory process where there is quality information going. It is a sort of simple political charge that it is not being ranked and therefore the Attorney General is involved.

It is a little more complex than that.

This Bill is the best iteration, as Deputy Jim O'Callaghan has said. It is important that all appointments go through this, and it is important that the Minister be aware of all the people who have applied. In that way it gives the Minister a safeguard to be able to assess whether diversity really is coming through the Judicial Appointments Advisory Board. The board publishes its annual reports every year and gives a breakdown of who applied - the gender breakdown, the professional breakdown and so forth - but not of who came out the other side, which is a barrier to being able to assess whether real diversity is coming through the JAAB. It was impossible for the Government. Although it had the statutory power to appoint somebody other than a person who was recommended by the Judicial Appointments Advisory Board it only ever did it once, in the case of a person who subsequently became Chief Justice. The fact that it had the discretion to do it was statutorily relevant, but in practice it was irrelevant because it never did it. Again, there is this bandying about of political this and political that, but if one looks at the vast majority of the applications by the Government of the Act, it never used the scale of political discretion that was available to it all the way through. In fact, the real difficulty, which I am sure will be remedied in the case of the new judicial appointments commission, was the institutional drift that the body went through.

The Bill is very welcome and I will enjoy taking it through Committee Stage to continue the debate about the role of the Attorney General, rankings and so forth. However, there is a strongly independent Judiciary in Ireland and a very good system that is comparatively benched. This is an important institutional reform and improvement, but that is all it is.

I welcome the opportunity to speak on this Bill. It seeks to enact a wide range of reforms which will change the way in which judges are appointed in Ireland. We support the Bill although we will propose amendments to it to make it stronger. We must see the appointment of judges who truly reflect Irish society, not just a certain section of society. We must have judges who are in touch with all communities, especially working class communities because those communities live with the brutal reality of drug-related crime and antisocial behaviour. It is consistently said to me that judges are out of touch and leave gardaí fighting crime and social disorder with one arm tied behind their backs. Countless gardaí have told me how frustrating and disheartening their role has become due to out-of-touch judges. There are countless examples of violent offenders with 70 or 80 previous offences receiving suspended sentences from judges. Many violent offenders feel untouchable. This is having a devastating impact on local communities. It infuriates local residents and undermines the role of the gardaí.

Previously in this Chamber I have raised various gang feuds and the ongoing social disorder. Recently, it was in Creighton Street in City Quay and prior to that it was in Grand Canal Docks. The gardaí struggle for the required resources, but they do a great job with the limited resources they have. We must have judges who are not afraid to hold offenders accountable. Some absolutely horrible crimes are committed in communities across the country and the leniency of the sentences takes one's breath away. Residents tell me that judges are out of touch with inner city communities. As was mentioned earlier, the cohort of people who are qualified to be judges is small. It will be extended slightly. For me, the challenge is that we cannot wait for the natural change to happen. We have to be proactive to ensure that the judges reflect the increasing diversity sooner rather than later.

I welcome the Bill and thank the Minister, Deputy McEntee, and the Minister of State, Deputy James Browne, for bringing it forward. I also thank the members of the justice committee, two of whom, Deputies Martin Kenny and Carroll MacNeill, are present, while others have contributed, for their work on this Bill. Shortly after the Oireachtas Committee on Justice was established, this Bill came to it for pre-legislative scrutiny. It might have been the first Bill to do so. We now see it on Second Stage in the House. I note that a number of the recommendations we made following pre-legislative scrutiny have made it into the Bill. It is a good example of collegiate, constructive work across the Houses through the committee system. As chair of the committee, I thank the members for their constructive inputs throughout.

As Deputies Jim O'Callaghan and Carroll MacNeill mentioned, the Bill has taken probably the best from both previous Bills while removing some of the more problematic aspects that were attempted in the previous Dáil. The former Minister, Mr. Shane Ross, was particularly culpable, shall we say, despite not being the Minister for Justice, in driving certain views. Some of those issues have been addressed in this Bill and some have been removed where appropriate. The good in that Bill and, indeed, in Deputy Jim O'Callaghan's effort is taken forward in this new composite Bill. That is very welcome. The Bill is not a panacea and there is still much to do - "A lot done, more to do", as a famous previous Member of this House said, which is true of many things. It is certainly progress and I welcome it. It is important that we move it forward.

One thing struck me at the outset of this consideration to my great surprise. I had always imagined the Judicial Appointments Advisory Board to be a type of selection or assessment process, and I had understood that it would make recommendations, prioritise and present a slate from which the Government could choose. I was surprised to find that it really served as largely a form of clearing house, akin to no more than a Garda vetting, whereby somebody was eligible for a role as opposed to being particularly suitable or particularly useful, and there did not appear to be any ranking or assessment, which was a pity. I understand the freedom and power of the Government to appoint judges has always been constitutionally guaranteed, but that issue has been addressed in the Bill in terms of the far more rigorous, useful and practical process to shortlist and make a number of recommendations. The Government will then choose from those recommendations, as opposed to having a process and procedure, going around the houses and ignoring it by picking somebody off the bat, which was an issue previously. We know it happened. It happened many times in many jurisdictions. Perhaps many of those appointed worked out very well in the end, but a process to screen candidates, shortlist them and present them for appointment in an assessed manner makes far more sense. It is very welcome.

I mentioned that the Minister has taken on board some of the recommendations from the committee. One in particular, recommendation 6 made by the committee, referred to the definitions of experience required for academic selection. The concept of appointing academic practitioners or academic personnel to the Bench is not new. We have some very eminent jurists and legal scholars on the Bench in Ireland and we have benefited from their expertise, but what they have in common is that they have practical experience as well. That is very important. Something that is perhaps not always understood fully is that our appellate courts have a panel and a division. They have a number of judges sitting in parallel together. They consider an appeal on a point of law. It is very technical, detailed, scientific or academic.

However, the majority of decisions in the first-instance courts, which include the High Court, Circuit Court, District Court and all courts below the Court of Appeal that the majority of cases come through, are far more practical. They are all about inquisitions into fact-finding and also on any morning of the week managing a list, managing quite an unruly room at times, trying to put some type of structure on a number of cases that are being put before the court, trying to second-guess or read the room, trying to decide whether some ex parte application takes priority over some motion that was filed two weeks previously, whether some other matter is urgent and needs to be heard or whether a witness can give evidence or whether it is on affidavit only. There are all these practical considerations to manage a courtroom. For an academic non-practitioner to come in, who might have a fine and thorough knowledge of the law at academic level but has never set foot in a courtroom in his or her life, it would not be very practical and would not lead to good management of that courtroom. The point I made in the committee is that it is akin to taking a very eminent medical scholar who had never practised medicine and appointing the person as the head of a busy emergency department on a Saturday night, where the person with the least experience would be the most senior person in the room. It would not have good results. We made the same point in this context. Certainly, academics are very welcome and will enhance the Bench, but the requirement that has now been incorporated in the Bill is that they have a minimum of three years' experience. Three years is actually quite low, but that there be some degree of practical experience present before coming in is very welcome. I thank the Minister for taking that point on board.

Another point to be made in this debate is that we need to look at our per capita rate in terms of the numbers we have in the Judiciary to serve us. Ours is quite low compared to elsewhere in Europe and internationally. It is a fact that emerged in a number of inquiries in the committee, among many unexpected topics.

A point made by many stakeholders is that we need more judges. We need more people to hear court cases, hold proceedings and pass judgment because there are many matters to be dealt with. For example, a victim who is waiting time and again to come back to court and who sees matters delayed is being re-traumatised every time they have to appear in the court. Sometimes, a complex area of law has to be clarified for the benefit of this House or of other stakeholders or a particular sector, and there can be logjams in the employment courts and across the board. It is very important that we address that. I would say to the Minister of State, Deputy Browne, and the Minister, Deputy McEntee, that we need to do that. The Government is doing that and it has made a number of appointments over the last year, but we need an injection to get us up to the level that would be seen in comparable jurisdictions.

On a point that is not covered by the Bill, I believe the Judicial Council is considering the issue of judicial conduct. There is a lot of talk these days about safe spaces and dignity at work. Sometimes, particularly in the lower courts, one can be a king or queen of one's own castle. Dignity is not always afforded to those practising or appearing as witnesses, or to gardaí or officials. The Judicial Council is looking at some form of disciplinary or internal complaints procedure. It is needed and is something we have in every other walk of life. Just because somebody is sent to the Bench, they should not be immune from being asked to be accountable in that regard.

From the Rural Independent Group, I call Deputy Michael Collins, who is sharing time with Deputy Mattie McGrath.

Judicial appointments have been covered by politics for as long as appointments have been made. This is wrong from the word go and it cannot continue. It should be on the basis of someone's ability, not on a nod and wink basis because someone's father or mother supported a certain party all of their lives. There is no point in the Judiciary stating that we have to separate the Judiciary from the political system as most of the judges are here because of politics. They are linked and I have no doubt that many cases that come before the courts have been on the desk of a local Deputy at some stage. We, as well as the Judiciary, should play a part in law cases in this country to rid the country of crime.

We also need to strengthen the extradition laws of this country, especially with European countries which we have locked arms with. I know of some very suspicious characters in this country who roam the countryside free because they have escaped extradition. I call on the law of the land to rectify this. If they are as innocent as they claim to be, why not go to the country that is most affected by the crime that was committed and either clear their names or face jail for the rest of their lives if found guilty? We seem too relaxed in this country about extradition and fall on the side of protecting the guilty, which in turn makes it look like we made mistakes in the lead-up to these people being brought to justice, and in turn these people try to make our gardaí look weak, which if looked into properly, is not true.

I have seen law cases in this country where gardaí have been attacked and, to my astonishment, the criminal gets a very small sentence. How can gardaí apprehend hardened criminals when the law of the land fails to protect these gardaí? Gardaí end up being badly injured in the line of duty. Sentences for these types of crimes need to be stronger. We need to show this country and the world that Ireland does not go easy on the thugs who commit these crimes.

On my behalf and on behalf of my colleagues in the Rural Independent Group, I thank the Master of the High Court, Edmund Honohan, for carefully crafting the Impaired Farm Credit Bill 2022, which has been sponsored by the Rural Independent Group. This is an innovative Bill which aims to protect the family farm from vulture funds and boost low interest credit for farmers. It was cleared for debate in the Dáil on Tuesday last. For too long, the Government has facilitated the vulture funds and banks to seize and sell family farms in Ireland. This Bill would create a policy platform to tip the scales back in favour of landowners and farmers. It is all about protecting the small man or woman against predatory financial institutions.

I remind the Deputy that this is the Judicial Appointments Commission Bill.

I have spoken on that and I will refer back to that again. It is good to see the Judiciary has played a part in this to bring forward this Bill and it is very important that we explain that.

He is not a member of the Judiciary.

Only for Edmund Honohan, who is a member of the Judiciary, it would not be before us.

He certainly is. It is unfortunate the Minister of State did not attend the audiovisual room the other day when he was here discussing what was before us in regard to this Bill. The Minister of State would have found out a lot more.

Farmers are under attack from all quarters. First, the Government is targeting deep cuts to farmers’ ability to earn a living through climate action reductions and an inadequate CAP programme. Second, banks and vulture funds continue to seize and sell off family farms all over the country, with Government policy stacked in favour of these institutions. We have observed at first hand the destruction and crippling impact that these vultures have caused to families and rural communities. That is why we have brought forward this imaginative new Bill.

This would not be possible without the exceptional and invaluable contribution of the Master of the High Court, Edmund Honohan. His first-hand knowledge of the difficulties faced by farm families and his exceptional legal expertise have been instrumental in the publication of this Bill. The Master of the High Court, Edmund Honohan, has himself stated that the new world of banking is not geared towards agricultural lending. It is simply that the banks do not get agriculture and their business model will not allow it. Between banking as we know it and agriculture as we now know it, there is a grave mismatch and it is farmers and their families who are the losers in the process. This Bill provides an approach to credit and impaired credit which is sui generis, or of its kind, and unique to the farm enterprise.

The Bill is an invitation to all stakeholders to engage in a searching reappraisal of the current dysfunction in the banking model as it applies to Irish agriculture. Naturally, the usual gang of anonymous and highly paid banking lobbyists will beat a path to the door of any Minister who might appreciate a briefing on the measures in this Bill in a desperate attempt to block or delay open discussion and to protect the interests of the banks. Instead, we invite all of those individuals and institutions to come on record and direct their observations to the committee of the Oireachtas, where they can be subject to constructive analysis. After all, it would be nice for once to hear a Minister undertaking to put on the record of the House a full record of all comments he receives from front-door or back channels when it comes to this Bill.

I know the Deputy is doing his best to make it relevant but it eludes me.

Thank you very much. To be in the company of Edmund Honohan is to meet a mild, humble man who is more than willing to help, in my opinion. I am sure many will agree the Master of the High Court, Edmund Honohan, is someone every judicial appointee should aspire to be.

I am delighted to have the opportunity to speak on the Bill. It is very loose and very weak and, unfortunately, it is not doing what it says on the tin or what it was meant to say on the tin. The Minister needs to get that opener for the tin and open it, because we know what happens to the fruit inside if it is left too long - it goes out of date. We are stale.

Mention was made of a former Minister for Transport, Shane Ross, who I fought with tirelessly with regard to rural issues. However, I supported him with regard to the Judicial Appointments Advisory Board Bill that he was trying to bring forward. Deputy Jim O'Callaghan mentioned that political shenanigans in the last Government stopped it. There was no appetite for it. The former Minister did his best and I salute him for the large amount of work he put into it. He wrote about it before he came into the House and he made promises to people. He did his best and more than his best, but it was not to be because of the political masters of the day, unfortunately, with no disrespect to the Minister of State, the Leas-Cheann Comhairle or anyone else who has served at the Bar, as a solicitor or at legal level, and there are a lot of good people. However, there is a huge job in shifting the balance from across the river to here. Power is meant to lie here and, unfortunately, it is across the river that the power seems to rest. Goodness, we have seen that in many cases, most recently with the so-called and very poorly named "golfgate", when there was a lot of media and it was a circus really, but that was a superficial war dance. There are a lot of serious issues and many families are very hurt by the justice system in this country, which has not served us well.

The joint committee’s report set out ten recommendations in regard to the Bill. A number of changes have been made to the general scheme following the pre-legislative scrutiny process and subsequent recommendations of the joint committee. However, certain concerns remain regarding the role of the Attorney General and the fact the recommended candidates are not ranked in order of merit. The system is going to pick the three candidates and send those three candidates forward to the so-called commission, but there is no ranking, so it is going to give the Minister of the day the political choice that he or she wants. That is what it is and that is what is going to happen.

Three names will go up.

I have some experience of discussing these issues with Ministers for Justice. I was involved in a strange court case following which I was cleared by a jury of my peers in County Tipperary, thankfully, after spending a long time in the court. I thank the jury and all the legal people who were involved. I met the then Minister and was very frustrated. This happened after the court case, not before it. I was told that Minister had not appointed the judge but had received a bit of paper from the then Taoiseach to tell him to appoint the person. That is the way it works. It stinks to high heaven and has done for a long time. The system must be cleaned out and it is wrong. I could highlight countless cases from counties Tipperary and Waterford in which justice was not served for ordinary citizens by a long shot.

Deputy Michael Collins mentioned the former Master of the High Court, Mr. Edmund Honohan, who offered a briefing to any Member who wanted to attend it on Tuesday evening last. He gave us a wonderful briefing and he gave us a great help. In fact, he drafted our Impaired Farm Credit Bill. Deputy McGuinness, Senator Norris and other Members did their best in this area previously. Anybody who stood before this very humble, decent, upright and respectful man of the people, whom the justice system is meant to serve, in his chambers was treated with dignity, respect, the utmost decorum and fairness and was made to feel human. I have attended many court cases along with distraught families. The system in many courts is not very humane, and it got even less humane earlier in the Covid pandemic. Justice delayed is justice denied. People were locked out of court cases. Businessmen and farm families throughout the country have been put through nothing short of a torture chamber, and some members of the Judiciary have no halos above their heads after what they did. We have seen this before, where massive sums have been written off by banks for certain individuals, and they have then sat on a case instead of recusing themselves because they have a vested interest in the form of an investment with the bank. That would not happen under Putin, as awful as that man is.

Is that related to the Bill?

It is, of course. This is supposed to be a reforming Bill. I thank the Acting Chairman for his advice but I am, of course, referring to the Bill.

I am referring to serious anomalies. There will be no lay chairperson, a major flaw. What does the Government have against laypeople? Is everyone not entitled to exercise his or her intellect and to respect, whereby he or she can bring another perspective to the table? No, the legal eagles want the power. The Attorney General, the highest legal officer in the land, will be there in an advisory capacity, even though there have been some recent decisions in which he has scratched his head and asked what had happened. I mean nothing personal against the Attorney General but his office was there. There will be four on four and the legal eagles will win out again because there will be no lay chairperson, a major fundamental flaw. It is a major design, architectural flaw that will ensure the Bill will not reform, will not do what it says on the tin, will not do what people are waiting for, and will do nothing along the lines of the efforts the former Minister, Shane Ross - I again salute him - made to tidy up the issue and to bring some sense of normality and fairness to the process.

I mean no disrespect to the Minister of State, Deputy James Browne, and the Minister for Justice may have attended an earlier session of the debate. I understand the Minister of State has some skin in the game, given he is a qualified barrister. I say "fair dues" to him in that regard - I have nothing against that - but whenever a debate gets around to our, smaller groups' speaking slots, the senior Minister will have left the Chamber, like a cat out through a skylight. You would think someone was chasing after them with a pellet gun. You cannot do that, of course, because of animal cruelty laws, but that is the way it is. It is patently insulting and downright disrespectful to the section of the electorate that sends us here. I refer to me, my colleagues in the Rural Independent Groups and other small groups as well. It happens all the time. Surely the Government can organise a structure whereby if the Minister has to leave before the debate has concluded and if a second session has been scheduled, a Minister can attend the second session for a while to listen to our views. Our views are not weird or off the wall. Our voices, and the voices of the people who put us here, have to be heard too.

To return to the Bill, the three names will be recommended to the Government. I have sat on many an interview board as a voluntary board member of both a national school and a vocational education committee, VEC, school. There is always a ranking system. The interview panel tries to get the best person available and, in second level at least, there was always an education inspector who was very good and gave sound advice. On many occasions, there were two wonderful ladies who had retired from the Sisters of Mercy order, who were brilliant in their knowledge and their in-depth line of questioning and advice for us laypeople. I was the chairman of the panel many times and I would not have been able to do that without the expert advice of those people. We recommended the candidates in order of our preference in case, for some reason, the number one choice could not leave their previous job or could not take up the new job. We always had to do that and we would give three or four options in order of preference, but that will not be the case following the commencement of this Bill. Three names will be handed to the Secretary General and the Minister's Department, and there will be a pushing and shoving at the Cabinet meeting, a nod and wink and whatever. The political appointee will get the job every time. It is plain and simple. If it looks like a duck and walks like a duck, it is a duck. The Bill will not change that one iota.

We talk about juntas in African countries and elsewhere. We fought here and got our freedom and our democracy. We got the courts and the legal system but it has not served us well. It may have served us in the main, but I could mention countless instances where it has not. I could mention Tom Kennedy's family in Tipperary, who have suffered an appalling vista of abuse, Kieran Hartley, whose case is currently before a Waterford court, where the witnesses were locked out of the court, or my own case, but I will not because, thankfully, the jury saw through what was going on. It is totally, scandalously political and it is what is going on up and down this country. That needs to be tackled and it is what the then Minister, Mr. Ross, was trying to tackle. As I said, I fought with him on transport issues and many other issues relating to rural Ireland but I am that kind of person. I deal with issues as they come before me. Above all, I like to be straight and honest and support issues where I can and if I can point out flaws, that is what I do.

The Bill contains many failures and inadequacies, the main one being that relating to na triúr ainmneacha. They will be on a piece of paper in a white envelope with no ranking. That is not an interview process. An interview process is meant to pick out the best person from the four, eight, 100 or however many people come before the panel. It should pick the best person who has applied to do the job, in the opinions of the eight people on the panel, with the advice of the Attorney General. There will be plenty of advice in the room. Moreover, although I may stand to be corrected on this, the Chief Justice will chair the meetings and will be available to offer advice. In any event, there will be plenty of advice on the legal side, so why will the Government not allow for a lay chairperson? He or she would not be Mattie McGrath coming in, running amok and wrecking the place. That person would respect the place. Mol an óige agus tiocfaidh sí, mol na daoine agus tiocfaidh said.

We should get people of valuable experience. I do not mean people from NGOs. I was shocked to learn we now have 36,000 NGOs, costing €5.5 billion annually. I want ordinary, true laypeople to be involved. I refer to people of the country, that is, ordinary people who have lived their lives and raised their families like any normal person and who have a lot to offer. Many of them have done tremendous work in voluntary organisations throughout the country, unlike the NGOs. You are nobody now if you are not an NGO. We need to re-evaluate that system also, although that is not included this Bill and I will not get into that. The Group of States Against Corruption, GRECO, has on several occasions criticised what is going on, the delay, the inaction and the obfuscation that went on when the then Minister, Mr. Ross, was trying to make changes. I have ears and can hear what goes on. Tá dhá chluas agam.

I could hear what was going on in this building, outside of the Chamber. People said they would make sure it was buried, and it was buried. All that was lacking was the funeral and the praise. It was buried because it was not wanted. It was not because of who the former Minister, Shane Ross, was but because it was unpalatable to some. It was trasna na habhann, across the river.

We had a seismic shift here. I am looking at the Acting Chair here. I should not comment on the Chair but I am looking at Sinn Féin, which is champing at the bit to get into power. It has made many promises. I will live in hope and wait and see. The system is so cumbersome now that it will take a fair amount of courage and dedication to change it. You would need a jackhammer or a pickaxe to get the hands of the very senior civil servants, such as Mr. Watt and others, senior officialdom, some NGOs and the whole cabal that exists off the handlebars of power and to give a small bit back to the people and to his House. We have token power here. We saw this in how this House acted during the Covid pandemic. Any legislation requested was passed. We saw legislation on hearsay included in emergency legislation on health during a pandemic. That was the biggest joke of all time. There was not a word from any of the major parties here, including the main Opposition party. That was put in. That was the boldest, most audacious move. The Government thinks it can do what it likes with the people, including the people in here as seen in the inclusion of that legislation on hearsay. It is devastating that hearsay can be allowed as evidence. Dúirt bean liom go ndúirt bean léi go raibh fear i dTiobraid Árainn a bhfuil póca ina léine aige. That is what hearsay is. I will finish but this is useless, toothless and fruitless.

I have great respect for Deputy Mattie McGrath but I do not agree with him that this is toothless, fruitless and useless. In fact, I welcome the Bill and the amount of work the Department and the Minister have put into it. I often criticise written speeches but I will not on this occasion. It was succinct and to the point. Of course, it does not deal with the issue of the Attorney General or the thorny question of the concerns raised in that regard, but it deals with the matters it deals with. It talks about fundamental reform and I acknowledge that. This is fundamental reform and I acknowledge that openly.

However, what is missing from the speech is the context. It is as if this Bill has arrived from nowhere. The background to this is that it has been a long time brewing. Let us put it like that. I have read all of the submissions and I once again acknowledge the work of the committee. In fairness, it highlighted the different opinions among its members. It did not come down on one side or another but certainly highlighted different issues, including the issue of rankings, concerns over the Attorney General being placed on the committee and so on.

Why do we need this? It is not a reflection on the judges. I will put up my hand and say that, in a different life, I was there. I am highly critical of any institution, including the Judiciary, when necessary but the older I get and the more time I spend with institutions, the more I realise they are the last bastion of the people who managed to get there. Unfortunately, not everyone has access. I wish we were discussing equality before the law in terms of access and the number of judges we need rather than this but this is the first step in looking at that.

We have at least four academics, including three in Ireland and one from outside, acknowledging we need a fair, transparent and rigorous process. They say this Bill goes a long way towards that. The Irish Council for Civil Liberties, which we often quote here, tells us that an independent, fair, transparent and effective judicial appointments system is crucial for protecting the independence of the Judiciary and the right to a fair trial. The Irish Human Rights and Equality Commission tells us, "An independent and diverse judiciary are fundamental components of a functioning democracy." It also points out that, "Judicial independence is a cornerstone of the rule of law and access to justice." Access to justice is another thing we do not talk about in here. It goes on to say, "Independence of the judiciary is an essential element for an individual’s perception of the judiciary and confidence in the judicial system." Perception is very important here. The commission states:

Perceptions about the independence of a judiciary can affect an individual’s decision to:

“bring cases to court, to refrain from legal action or, if available, to use other methods of dispute resolution”.

Interference with judicial independence and attempts at influencing judges can severely undermine the protection and recognition of human rights.

It also states, "Furthermore, from a rule of law perspective, a judiciary should be representative of the diversity nature of society." I could go on but these fundamental principles have been pointed out for quite some time.

We are here today with a Bill that certainly is reforming. There are many positive things in it. I do not agree that the former Minister, Shane Ross's Bill was the right way to go about this. It was most unfortunate that it served to deflect from the real necessity for a debate on justice, access to justice, diversity of the Judiciary and many other issues. If this is the start of that debate, I welcome it. The positive aspects include the fact that, for the first time, judges will be appointed based on merit. That is set out in legislation. There will be published criteria, selection statements and diversity statements. An interview will be essential.

The number of candidates from which the Government must select a judge has been reduced to three. That is welcome. All of the organisations I have mentioned, as well as international organisations like the Group of States against Corruption, GRECO, have said that a big number of names going forward to any government is unacceptable. The reduced number of three is acceptable. I have an open mind with regard to ranking. I know a lot of issues have been raised in that regard. I feel that concern has been met to some extent by reducing the number to three, which still leaves the Government the discretion it must have under the Constitution. A good balance has been struck there.

I welcome the underlining of the importance of education and training. It is fundamental. I welcome that there is to be a diversity strategy published with the particulars set out. I may come back to that point. I welcome that all applicants will go through the same system regardless of their position. The existing system, under which there is a difference, is unacceptable. The proposal in the previous legislation put forward on this issue, that there would be a trinity, including the Attorney General, to appoint the top judges, was simply unacceptable, so I welcome that, under this Bill, all applicants will be treated in the same way and will have to go through the same process. I welcome that eligibility has been extended to include the President of the High Court and legal academics. Although I know the Bar Council has some concerns with regard to experience, I do not share that concern. I believe it is a welcome change that legal academics are to be allowed in.

I welcome the accountability and that a report will be produced annually and presented to the Dáil. I welcome the built-in review in the legislation, which will go some way towards bringing about accountability, although I have concerns about a matter that is not set out - perhaps I have misread it - which is the review not being publicised. Perhaps the Minister of State can clarify that point. The review that is to be conducted by the commission in due course is to go back to the Minister but I do not see any provision for it to be sent to the Dáil. If we are seriously interested in increasing diversity among judges at every level, it is essential we see what the commission is saying, what we are learning and what further changes from the Dáil are necessary.

I welcome all of those changes but I will now move on to some of my concerns. I see no reason for including the Attorney General in the judicial appointments commission. The judicial appointments commission is to replace the Judicial Appointments Advisory Board, JAAB. It is a change of letters but it may theoretically be a lot more than that, depending on how the replacement is implemented.

If it is implemented properly and the review is carried out properly, it will ensure fundamental reform. Practically every single submission expressed serious concerns about the presence of the Attorney General, with the exception of the Bar Council. Its concern was simply that there was no provision for a replacement when the Attorney General steps out where he or she is going for promotion and would have no part in the process. That is the most basic requirement, that he or she would step out. If the judges on the commission are going for promotion, they must step out and there is provision for their replacement. The Attorney General is on the commission, but if he or she steps out, there is no replacement. That is one practical problem the Bar Council pointed out.

However, there is a far more fundamental problem that is totally at odds with the fundamental reform in this Bill that I am praising and which the Government is praising. There is no fundamental reform if we have the Attorney General on the commission, albeit in a non-voting capacity, because he or she will be there every step of the way, as has been pointed out, and will be there at the end when the Government decides. As pointed out by the submissions, the Attorney General will inevitably be involved in the final selection once names are sent to the Minister. Therefore, having the Attorney General sit on the appointments commission, albeit without a vote, seems to give an overly dominant - I would say influential - role. The Irish Council for Civil Liberties has pointed this out, the legal academics who made submissions have pointed this out, and the Irish Human Rights and Equality Commission, IHREC, has pointed it out. Specifically, IHREC says the rationale for the presence of the Attorney General on the judicial appointments commission is unclear.

Significantly, there is a gap in the speech where there is no reference to it at all except one line saying it will be a non-voting role. It does not deal with the issue raised after the process of consultation has been completed and when the vast majority of submissions have raised the most serious concerns in regard to having the Attorney General on the judicial appointments commission. I would love if the Minister dealt with that, with why we are avoiding dealing with it and giving us a rationale. It does not make sense. I think the rationale that was given by a colleague – it has gone out of my head but I might come back to it, and I think it was Deputy Lawless but I had better check - certainly did not ring with me as a rationale for having the Attorney General on the commission. The Attorney General is the Government’s legal adviser and arguably this provides a means of Executive involvement in the judicial appointments commission’s proceedings. This is not me talking - it is from the submissions - but I fully endorse this. This is particularly so given the Attorney General also sits at the Cabinet, again in a non-voting role. The risk is that having the Attorney General on the judicial appointments commission presents the obvious risk of double counting the view from the Executive.

Independence from the Executive and the Legislature was precisely the issue, and this has been pointed out and gone into in detail, and I share all of those concerns. The Law Society of Ireland said it is not appropriate to have the Attorney General on the judicial appointments commission. It outlines six different persuasive reasons the Attorney General should not be on it. There is also a suggestion the Attorney General should be ineligible for appointment as a judge of the Supreme Court or the Court of Appeal for at least a period of 12 months after leaving office. That is another concern that has not been dealt with. As I mentioned already, the Bar Council said there is no provision for a replacement for the Attorney General when he or she steps out of a commission meeting. Obviously there cannot be because there is only one Attorney General. That in itself is a problem.

The Bar Council raised an interesting point in regard to the cost analysis and the danger of a new quango. I fully agree there has to be a judicial appointments commission and that it has to be staffed, but the Bar Council raises serious issues in regard to the creation of a new State body and whether it is proportional to the function for which it is created. In any given year there might not be any judges appointed and we are providing an office, funding and a director. The basis for the potential extra expenditure has not been identified in the Bill. Perhaps it has somewhere and I am not aware of it.

There are concerns about confidentiality, which is another concern of mine, where an offence has been put into the Bill. Only one submission raised this and it was the academic who is, I think, based in Oxford. He raised the question of the necessity for creating an offence for canvassing or for disclosure of confidential information. I understand in the previous legislation there was simply a prohibition on disclosure. Now we have gone further and created an offence. It could may well be that there is a need for that but I see no evidence. Has somebody broken that in the past? Have they contravened the prohibition? Why do we need that? How is that dealt with in relation to the Attorney General? He or she sits on the judicial appointments commission and then goes back to Cabinet and talks to the Ministers and so on. Where does confidentiality come into that? Will that person who is Attorney General be treated differently in regard to confidentiality? I would like that to be clarified. If we are going this far, and I think it is a major step in fundamental reform, why shoot ourselves in the foot by keeping an Attorney General on a commission when there is no rationale for it?

I mentioned already that ranking was a serious concern of many of the submissions. It is not a concern for me now that the numbers have been reduced down to three. The other matter was in regard to judges being elected by their peers. It is not clear to me if that is the case or whether they will be nominated. It would seem to be an international practice that they would be by their peers.

In regard to diversity and gender equality, it took 101 years to get the first two females appointed to the Bar. We are dealing here with 100-year periods. The year 2021 marked the centenary of the call to the Bar of the first two women, Frances Kyle BL, and Averil Deverell BL, in November 2021. They were the first two to be called to the northern bar. That was the 100th year. It took another year to break the barrier for solicitors, and they were appointed in 1923. Mary Dorothea Heron was the first woman to be appointed. I think great strides have been made. Some 40% of barristers are now female, although there is a complete imbalance in regard to senior counsels, of whom only 17% are female. However, the promotion of judges is from the pool of senior counsels. I acknowledge Deputy Carroll MacNeill’s work in this area, the book she has written and the research she has done. It has taken quite a long time to get this far where 40% are female. The diversity strategy and the gender strategy need to mean something in reality. The first review that is carried out will be essential to learning and to seeing whether we mean what we are saying when we pass this legislation. Will it be implemented?

The other thing, when I looked at this, is that very often there can be strong legislation and strong strategies, as they have in England, and it does not make a difference. We are actually ahead of England in terms of gender equality, as I understand it. Having it is one thing; implementing it is another.

In regard to diversity in terms of socioeconomic and ethnic backgrounds and so on, we have no data. It is another fact that jumps off the pages. We know anecdotally the judges do not reflect society, that they come from a particular background and a particular education system, which is absolutely no reflection on them. In my opinion they do a good job, relatively speaking, compared with other institutions, as I said earlier. We need data urgently. One of the first jobs for the commission is to have data and to commission and carry out research. Its strategy should be based on that. It should have targets and objectives that should be reviewed. It should be brought into the Dáil or the relevant Oireachtas committee in order that we can look at it.

Why do we need this Bill, besides any of the political debates that have gone on about it? Given the recent developments in Poland and Hungary, and again this has been identified in the submissions, it has become all the more clear that we cannot rely on convention or tradition alone and assume the goodwill on the part of any future government.

We need an independent process inasmuch as we can do that under the Constitution. I think this strikes the balance in that regard.

I will finish by saying that I would love a discussion in here when we have this done and the system is set up to monitor it, the targets that are set and on access to justice. The President of the High Court, Mary Irvine, has pointed out repeatedly that there is an absence of judges and the five recent appointments in the past year were already counted, so we need more judges.

In response to the argument that judges are a cabal, let me point out that back on 30 January 2014, eight years ago, the Judicial Appointments Review Committee set out 16 recommendations in a report. They are fundamental. It was stated that: "The present system of judicial appointments is unsatisfactory." That is the senior judges speaking. They also stated: "As a matter of principle, political allegiance should have no bearing on appointments to judicial office." They went on to say that there should be no distinction between the appointments of judges on a higher level and a lower level. They asked for ranking in recommendation 16. There were the senior members of the Judiciary crying out for change. I agree with a lot of what Deputy Carroll MacNeill says, but not on this. The Judiciary itself highlighted that reform was necessary and that it should not depend on political patronage.

The final issue that is not addressed is what happens if the judicial appointments commission fails to nominate somebody, if it does not pick anybody or it is not in a position to recommend anyone. I do welcome the fact that the Government has to pick from the three candidates, but what happens if three candidates are not chosen?

I am pleased to have an opportunity to speak on this important legislation, which was very laborious in its birth, had a long gestation and on which we anxiously awaited the outcome. I agree with many of the points made by the previous speaker, but I want to warn about a couple of issues that cannot be remedied in a small country. No matter what board comes up for renewal, in what capacity it comes up or on what basis an interview board is set up in this country, it is a small country and there is no way we can be certain that nobody on the board knows the person who is being interviewed for appointment. It cannot be done in a small country. Neither can it be guaranteed that they do not know their relatives or something about them.

I have the highest respect for the Judiciary and the need to keep the separation between it and the political system because of our constitutional requirements. That must not change, because if there is any movement towards change it would give rise to a problem that would manifest itself in early date. Like many of us in this House, I have been before most judges. I have been impressed by many of them. I found the judges of the High Court, Supreme Court and all the other higher courts to be exemplary in the way they discharged their duties. I would be the first to say that. Occasionally, in some of the lower courts one would raise questions about decisions taken or the basis of the decisions taken, which could be on whether a person liked politicians. For instance, I have been a witness in a case where a judge refused to allow the witness to speak on behalf of a defendant. I know as much about this system as they know about the system in that regard. A witness is a witness. Whether he or she is a public representative or not, he or she is entitled to be a witness. I have seen various witnesses in courts discharge themselves admirably and I have seen witnesses discharge themselves dubiously as well. We would ordinarily expect to be in a position to quiz them as to their authenticity and so on, and it might not always work. I remember being told by a judge that the court was not a political arena, to which I had to respond that I was not there in a political capacity, I was there as a witness, a distinction that has to be observed.

In the system that now prevails there is no way that we can be certain that we have taken all the knots out of the woodwork in the course of our work. It was a good system heretofore which worked well generally. There was the odd one here or there, but sure there is the odd one in this House from time to time and I ask how they got in here, and they could say the same about us. The point is that in a small country it is well nigh impossible to get an interview board at any level whereby somebody who is being interviewed does not know somebody who knows those carrying out the interview. It is not possible to do it. For example, they might know the school they went to. They all know that, and there is no use in pretending otherwise. Despite the fact that this was a long drawn out debate, some of the debate was well placed and some of it was not. We have to depend on two things in our system: the integrity of the judicial system and its separation from the political system. There must be a strict observance of that division at all times.

In the past, I and I am sure many other people in this House have challenged whether somebody was stepping over the system and wandering into each other's territory. It is not possible to do that. It is not possible for the Members of this House to sit in judgment on every judgment either. There may be judgments that we can question and that the public will question, but we cannot go through every case. It is not possible to do that. In fact, it is a dangerous thing. The courts should not be looking behind them in the rear-view mirror wondering whether or not something would meet the approval of the political group. That is not the way the system works. It is not supposed to work that way and it should never be that way. Let us hope that this system irons out some of the perceived kinks that were in the system. I say "perceived" because there are always explanations as to why different decisions were made. We could all raise questions, but the fact of the matter is that we have to respect the integrity of each other's positions and the importance of the Constitution in this country. We look across the water at our nearest neighbour, which does not have a constitution - it has a different system there. We do have a Constitution here which must be strictly observed whereby the State and the judicial system are completely separate and independent.

Dependence on the integrity of this system is important to every citizen, whoever it may be, whether he or she is an influential or important person or of no importance at all as far as the general public are concerned, but people are entitled to their day in court. They are entitled to justice, in so far as they can get it, but what they get in court is the law, in many cases, as opposed to justice. We recognise that if the law says a particular application must be made in a particular way, that is the way it is going to be. That is where solicitors differ. Some solicitors say we can change that, and some lawyers say they can challenge that. Sometimes they win and sometimes they do not. That is as it should be as well.

In the final analysis, I hope this works well. I also hope that people recognise that we are a small country, and everybody knows everybody else in some way, shape or form. It is impossible to avoid that. I hope we will learn to live with the new system, get the benefit from it and as a result get improved stature for the system - both the system of politics and the judicial system, and that both will grow in strength.

I thank the Deputies for their contributions. We have had an interesting debate both on the previous occasion and today and very useful contributions. This legislation meets the commitment in the programme for Government to overhaul our judicial appointments system. We are debating serious and meaningful reform.

It is significant that all judicial offices in the State and outside the State will come within the commission's remit to recommend. It is critical that all applications must be made to the commission, and only to the commission, including from serving judges. It is important the Government may only appoint or nominate a person recommended by the commission.

I may not have the opportunity to cover all issues raised, but I will endeavour to respond to some key points. Deputy Martin Kenny welcomed the Bill and questioned the chairing and lay complement. The Judicial Appointments Advisory Board is, and has been for about 25 years, since its inception, chaired by the Chief Justice of the day. The Chief Justice has a unique perspective on the workings of the entire judicial system and has a particular understanding of what is required to become a judge at any level of the judicial system. The Chief Justice is chair of the Judicial Council. I accept that the commission we are providing for and the council are not the same and have different functions and objectives, but I believe there is not a person better placed to guide and lead the function of selecting judges into the future. It is not always the choice of comparable jurisdictions to have a leading judge heading up this role, but some jurisdictions, such as Northern Ireland, have this arrangement and I am satisfied that it works particularly well.

The context is increased lay involvement. Judges and lawyers outnumber laypersons on the Judicial Appointments Advisory Board by eight to three. The Bill represents a large vote of confidence in what previous and existing lay members will bring to this function and the future expertise lay members will bring to the commission under section 13. Under section 9, four lay members, openly recruited, will have the exact same weighting on the commission as judicial members, that is, four to four. A smaller commission with a balance of lay and judicial voices will be efficient and effective at making recommendations to the Government. The judicial membership has been reduced from what was previously planned and what currently pertains under the Judicial Appointments Advisory Board. There is no particular need to have all court presence sitting all the time. The Bill provides for the fixed membership of the President of the Court of Appeal only. Other presidents will come in and out as members, depending on which court vacancies are being considered. Overall, with the Chief Justice's chair, this is a sound, effective and balanced arrangement.

Deputies Martin Kenny and Catherine Murphy also mentioned ranking of candidates or an order of preference among the three recommended names. The Minister's advice is that, for the Government to discharge its function under the Constitution, it must have a choice of candidates. The Minister is of the view that three names, without an order of preference, is essential to maintain this balance.

Deputy Howlin reminded us of the context of the inception of the Judicial Appointments Advisory Board arrangements. He also touched on the important context of the rule of law in the EU for the Bill.

Deputy Howlin and others also referred to the position of the Attorney General on the commission. This matter was the subject of the committee's pre-legislative scrutiny report and thank them for raising it. As noted in the committee's report, the general scheme of the Bill provided that the Attorney General shall not, as a member of the commission, have a right to vote, and section 9 provides for that. The committee's report notes it was argued that the general scheme of the Bill contained a significant weakness in the proposal for the senior judicial appointments advisory committee including the Attorney General. However, the Bill does not include this proposal, as the Minister mentioned yesterday.

As the legal adviser to the Government and the chief law officer of the State under the Constitution, the holder of the Office of the Attorney General is a suitable person to be a member of the judicial appointments commission in the performance of its functions under the Bill. The provision that the Attorney General shall not have a vote as a member of the commission allows for an appropriate balance between the four judicial members and the four lay members. Under Article 30 of the Constitution, the Attorney General shall not be a member of the Government, and the Attorney General does not have the role of representing the Government on the commission.

Several Deputies mentioned the importance of the diversity objective. I agree this is a concern and I thank them for raising this important issue. I have two points to make. First, section 28, in a development of the general scheme, now provides for the periodic publication of a diversity statement by the commission. This will set out the manner in which the commission gives effect to the objective, set out in section 39, that membership of the Judiciary in each court shall reflect the diversity of the population of the State as a whole, as well as related matters specified in section 28. The commission must prepare such a strategy periodically. It should be noted that section 61 requires a review of how the key objectives of the Bill, including diversity, are being met.

Second, focusing more so on the legal professions, the Minister is engaging with the Legal Services Regulatory Authority, LSRA, on the matter. The Minister asked the LSRA to examine further the remuneration of trainee barristers and solicitors, the other costs associated with joining each profession, the information available to prospective trainee barristers and solicitors on available masters and solicitors firms, the information available on the terms and conditions available and how they are selected, and any other barriers facing young barristers and solicitors, including the ability to take maternity leave. The Minister asked the LSRA to pay particular attention to equity of access and entry into the legal professions and the objective of achieving greater diversity within the professions. The authority has reported on the matter and the Department is currently engaging with the authority.

Deputy Connolly raised the issue of access. Access is an important component of Mr. Justice Peter Kelly's review, wherein 90 recommendations were made, including several relating to access. An action plan will be brought before the Cabinet shortly in the implementation of these recommendations.

As to the number of judges, there was a recent increase in the number of High Court judges, from 37 to 42, and a review is being carried out to assess the need for judges across all courts.

I thank the Deputies once again for their engagement with this topic. There is clear acknowledgment of the importance of a judicial appointments process and the need to get the various aspects and balances around the procedure right and fit for purpose. The selection, recommendation, and appointment of persons to these critical roles with such a bearing on peoples' lives and on communities and greater society is a focal point of the administration of justice. This will be enhanced by the reforms put forward in the Bill.

Question put and agreed to.
Top
Share