This amendment has the purpose of removing from the Long Title of the Bill words contained at lines 14 to 22.
Those words are as follows:
... to provide for the aforementioned matters having regard to the recommendation of the Council of Europe’s Group of States against Corruption (GRECO) that the system of selection, recommendation and promotion of judges target the appointments to the most qualified and suitable candidates in a transparent way, and having regard to Recommendation CM/Rec(2010)12 of the Committee of Ministers to Member States on judges: independence, efficiency and responsibilities adopted by the Committee of Ministers on 17 November 2010, under the terms of Article 15.b of the Statute of the Council of Europe.
The words in question are, in effect, an attempt to introduce to the Long Title of this Bill, on the basis of some reference to European law, cover for the proposition that the terms of the Irish Constitution ought to be overwritten in this particular way.
It is important to state that the Council of Europe's views are not an assistance, in any sense, to the interpretation of the Irish Constitution. They are opinions and they are opinions given by a diverse body which has many member states in it with many different forms of constitution and judiciary. When you look to the GRECO document, to which I will return in a moment, you can see that it is primarily aimed at ensuring standards of integrity and honesty and at eliminating any possibility of corruption in the judiciary. That is what GRECO is about. I regard it as an insult to the Irish Judiciary that it should even be mentioned in the context of the appointment of Irish judges that these measures are somehow required to eliminate risks of corruption, lack of integrity and improper standards on the part of the Judiciary.
There has never been a case of corruption made out against a judge in Ireland, even in outline. There was the case of Mr. Justice Brian Curtin, where I, as Minister for Justice, Equality and Law Reform, had to move a motion for his impeachment, but that was nothing to do with corruption but with a personal matter and an infringement of the criminal law which was alleged against him. Looking to now, after a century of judicial activity in Ireland it has never been suggested that a member of the Irish Judiciary has acted corruptly. Yet in the Long Title of this Bill there is a reference to GRECO, the exact nature of which I will come back to later, in the context of a need for reform of the way in which Irish judges are appointed. It is a shame that such a thing should be done. That reference is only there to provide some kind of advertisement, perhaps to the Judiciary, that the provisions of this Bill on a commission were motivated by a desire on the part of the State to comply with European standards for the appointment of members of the Judiciary.
I mention the recommendation which is referred to, "Recommendation CM/Rec(2010)12".
It is notable that the document in question and the explanatory memorandum that goes with it are written in careful terms. Chapter 4 of the recommendation states, regarding the status of judges:
44. Decisions concerning the selection and career of judges should be based on objective criteria preestablished by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.
45. There should be no discrimination against judges or candidates for judicial office on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, disability, birth, sexual orientation or other status. A requirement that a judge or a candidate for judicial office must be a national of the state concerned should not be considered discriminatory.
I will halt my quotation here to state it is interesting to note that Irish law makes no such provision and does not require anybody being appointed to the Irish bench to be a citizen of Ireland.
The recommendation continues at paragraph 46, "The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers". This proposition is one that is an expression of opinion by a group of European ministers but it flies directly in the face of what is provided for in the Irish Constitution. It states that the selection of eligible persons to be judges is a matter for the Executive, that is, the Government to act on when advising the President.
The recommendation continues by stating, "With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers." This brings onto the stage the notion that the Judiciary should have a key role in selecting themselves. In Australia, New Zealand, Canada and the United States, all of the great common law countries with written constitutions like ours, no provision whatsoever is made for the selection by judges of their own colleagues or for the granting of a decision-making power regarding who should be promoted within the judiciaries of any of those states.
The case was made earlier in the debate that somehow, what we were doing was applying internationally accepted standards here. In so far as we are a common law jurisdiction and we have a common law tradition, and the role of Irish judges is fundamentally different from the role of judges in the civil law countries from which come the majority of members of the Council of Europe, it should be clearly understood that at no point has any self-respecting common law jurisdiction with a written constitution ever stated that its judiciary should self-select in order to be free from the taint of being politically appointed. There is a very good reason for this. We have a Supreme Court that consists of potentially nine but at present eight ordinary members and a Chief Justice. The Supreme Court interprets for the Irish people what their Constitution means. The Constitution means what the Supreme Court says it means in the last analysis.
That court has considerable power in that it determines the nature of the fundamental law of this land and how it can be applied in any particular circumstance. Therefore, the members of that court can have a potentially radical effect on the development of Irish society. If someone is progressive, liberal or radical in his or her intent or temperament, or in his or her approach to jurisprudential matters, and is appointed to the Supreme Court and joins a collegiate body, there is clearly the possibility that his or her outlook will determine the future characteristics of decisions of fundamental importance to citizens because they touch on the interpretation of the Constitution. A candidate may be liberal or conservative, radical or progressive, an inventive person or a person who is more inclined to be hidebound by previous decisions of the courts, a person who is notoriously pro-life or pro-choice, a person whose views on our relationship with the European Union lie one way or the other, or a person who is likely or more likely to take a view as to the extent to which the property rights, family law or education provisions of the Constitution should be interpreted in any particular way. It is obvious that such a person being appointed to the Supreme Court is not the same as anybody else being appointed.
The fallacy at the very heart of this Bill is the banal and slightly asinine proposition that everybody should be appointed on the basis of merit. In this context, "merit" does not mean anything to do with the issues I have just raised. Is a pro-life person more or less meritorious than a pro-choice person? Is the fact that somebody is notoriously pro-life or pro-choice to be considered irrelevant? Is there some other measure of merit which makes a person's views on those issues irrelevant in the decision as to whether that person should or should not be appointed to the Supreme Court?
That is the problem with this legislation. It is giving to a commission of four judges and four laypersons a role in determining which of the eligible judges of the superior courts should be in the Court of Appeal and Supreme Court, and who should become the president or Chief Justice of those courts. The commission will decide which judges should be promoted and which should be left in the courts where they are and where they have demonstrated conservative or liberal tendencies, or whatever. It is giving to the commission a choice which on the face of the Bill is to be entirely determined by merit.
In debating this Bill, I must go back to the debate on the previous Bill, which the then Minister for Justice, Charles Flanagan, was reluctantly pushing through this House. I asked at that time whether the four judges interviewing or promoting somebody could take into account issues such as philosophy, liberalism, progressiveness and all the other issues I have mentioned as they apply to the candidate in determining the meaning of "merit". At least at that stage, it was agreed that they could not, and that the four judges were not there to impose their own views on, for instance, pro-choice or pro-life matters or on the meaning of the family or family provisions in the Constitution.
That was accepted then but it is now being swept under the carpet. We are now being asked to decide whether this body, which is reduced in size from the previous Bill's proposal of eight persons, four of whom are judges, two of whom are ex officio members, subject to standing aside when the court in question does not concern one of them, and two of whom are elected by the members of the Judicial Council, will determine the future complexion of the Irish Supreme Court. They have no mandate to do it; none of them have. The present presidents of the Court of Appeal and the High Court have no mandate to do this. They were not appointed on the basis that they would come to a view about the desirability, yay or nay, of putting a liberal or conservative on to the Supreme Court. They were appointed to hold judicial office and be impartial arbiters in litigation between citizens and between citizens and the State.
Although I know many of the people involved and those likely to be the involved, it seems to me that their outlook has nothing to do with the future composition of the Supreme Court. I can go further. I can say without breaching any Cabinet confidentiality that the outlook and philosophy of persons who were under consideration for appointment to the High Court and Supreme Court - I was not there when the Court of Appeal was constituted - was something that was considered by those who made proposals at Cabinet for the selection of members of those courts. There can be no doubt about it. The Cabinet thought long and hard about who it actually wanted to appoint. The Minister for Justice and the Attorney General were obliged by the Cabinet handbook to consult with the Taoiseach, Tánaiste and leaders of the parties in the Government with regard to such appointments. It was not a matter of the Minister for Justice, which is an office I held, coming in one day and slapping down the name on the Cabinet table and saying, "I have the agreement of the Taoiseach and this is what we are doing". It was always the right and prerogative of the Cabinet to ask who that person is and what we know about him or her. That applied to appointments to the High Court in the first place and it applied to appointments to the Supreme Court.
For a certainty, the issue as to whether somebody was a social conservative or social liberal was something that was carefully considered in making the proposal for his or her nomination to Cabinet and was discussed by the people who are required by the Cabinet handbook to confer with each other before a proposal was made. Now, we are saying that Cabinet will have no function in that anymore, unless it considers that among the three people selected by the four judges for any particular appointment, it can detect a difference in outlook or philosophy or whatever at that late point.
What is more, let us suppose there were three conservative members of the Supreme Court and none of their names appear in the shortlist because the four judges have effectively left them off it. The consequence is none of them, if this Bill is to be believed, can be appointed to the position of Chief Justice. It is likewise with promotion from some lower court to the Court of Appeal or Supreme Court.
It is not simply a matter of making a recommendation and letting the Government choose from a smorgasbord of judicial temperaments in accordance with the direction the Government wants the complexion of the Supreme Court to move in. With this legislation we are doing the exact opposite. We are saying a group of people, in which the Judiciary will have a blocking vote because of the way the whole thing is structured, will have the power to exclude any member of the Judiciary from inclusion on a shortlist. Thus, we are saying a choice now open to the Government is to be put back and people the Government might prefer to appoint, for the reasons and on the bases I have just mentioned, will be withheld as potential appointees by the decision of some of their colleagues in the various courts. That is radically wrong and radically unconstitutional because it is not somehow infirm that the Cabinet of the day should determine the future direction and philosophical direction of the Supreme Court by the appointments it advises the President to make. There is nothing wrong with that.
We seem to think every decision made by the Government behind the cloak of Cabinet confidentiality is somehow infirm because it is not made in the open and because the media cannot see precisely what criteria the Cabinet took into account in deciding one person should or should not be made Chief Justice, a member of the Supreme Court, or whatever. There is a retrograde and damaging undercurrent below the GRECO considerations and across the European Council that somehow to have any discretion in the matter is to give to politicians something they will abuse, whereas the Constitution gives them that discretion.
I asked the then Minister, Charles Flanagan, whether he could give me one example of a question that could be asked at an interview of a candidate seeking promotion to the Supreme Court. Could he for instance say whether it was legitimate or not for the interviewers to ask them questions about their fundamental philosophical output about the direction of the court before making the appointment? He inclined to the view they could not and that it would be none of their business. That was at the time when the body making the appointment was one in which the Judiciary was a minority, but the principle does not change. Are the members of the judicial council entitled to take into consideration the general philosophical outlook of an applicant, including whether he or she is of the left or right, known to be pro-choice or socially conservative, or whatever it might be, when compiling their shortlist?
This legislation in draft form strongly suggests that they are not and that they cannot ask questions, the drift of which would tend to suggest that, if appointed to the court, they would tend to use their judicial power as a member of that court in future issues. However, that is the precise point the Government must have in mind when it makes an appointment. For instance, at the moment we have a housing crisis. We see in the newspapers various commentators arguing that amendment of the Constitution is needed and a referendum should be held in order to help us to deal with the housing crisis, the implication of which is that those commentators believe that the constitutional guarantees for property rights at the moment and the constitutional recognition of the right of the Oireachtas to legislate for the common good are considerations that will clearly be affected if one inquires of a judge or candidate for the Judiciary, directly or indirectly, where he or she stands, broadly speaking, on how the property rights in the Constitution should be interpreted and applied. Anybody who says that this is a non-issue in the selection of the Supreme Court, and possibly the Court of Appeal and High Court, misunderstands the constitutional function of our Judiciary. We do not have a situation under any circumstances in which the Government is obliged to be blind to the attitude and philosophy of a candidate for the Judiciary. To take an example, I am ineligible because of age but if Deputy Boyd Barrett and I were both eligible, he having done a Bar degree and having practised and I being younger, of course it is of significance where he and I are perceived by a Government to stand on issues to do with ideology, Marxist or otherwise. Of course it is a matter of significance.
I remember in my time as Attorney General or Minister for Justice - I cannot remember exactly when - a person was appointed to the House of Lords, or maybe it was the Court of Appeal, who was known to have been a member of the Communist Party in his youth and to be an active Marxist as a practising barrister. How can anybody say that a Government should not take that into account in determining whether that person should or should not be given senior office? It may be that the Government might come to the view that one Marxist out of eight in the Supreme Court would be a good thing. However, a Government might take the exact opposite view and say it does not want that person to be the swing vote on a divided court between different interpretations of the role of the State or the provisions of the Constitution.
The reason I say this is that there can be people who have radically different views and are both competent lawyers. The particular person I have in mind, and I do not want to misname him, was clearly a competent lawyer and his decisions seemed to me, as a lawyer reading his judgments, to be competent ones. However, when it comes to what happens in Ireland, that is, that the fundamental meaning of the Constitution is determined by members of the Supreme Court, the presence or absence of a person of his kin ideologically on the Supreme Court is a matter of huge consequence.
In the context of the Bill, the question arises, therefore, as to what criteria the commission is supposed, by statute, to apply to the making up of its shortlists. It is supposed to look to issues such as diversity, gender equality, capacity to speak the Irish language and factors that would make the Judiciary more reflective of the diversity of society as a whole. Those are statutory criteria it is obliged to take into account. It is then supposed to say that the decision should be made on merit after that. How is a strong capitalist more or less meritorious than a strong socialist, however? The answer is simple - merit has nothing to do with it. Both of the candidates could be perfectly intelligent people who got the same marks in their exams the whole way up and are perfectly capable of deciding a personal injuries case in exactly the same way but, when it comes to the meaning of the Constitution, one of them is highly likely to go in one broad direction when considering decisions and the other is likely to go in a diametrically opposite direction. The recommendation of the Council of Europe must be read very carefully. It states in the memorandum:
However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges [That is, people becoming judges in the first place and those receiving subsequent promotion] an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations [That is the first thing] or to express opinions [The second thing] which the relevant appointing authority follows in practice.
That is the giveaway that there was clear recognition that the most that could be expected of an advisory body was that its views would be followed in practice but not as a matter of law. If the Cabinet is given three names for an appointment to the position of Chief Justice or ordinary member of the Supreme Court but does not like those three nominations for any of the reasons I mentioned, it must, in exceptional circumstances, be free to say "No". Under the Constitution, it is the responsibility of the Cabinet, not anybody else, to make the appointment.
The recommendation of the Council of Europe states that, "the head of state [which would be the President], the government or the legislative power takes decisions". In some countries, it is necessary to get legislative approval. In the United States, the President's nominations have to be approved by the Senate judiciary committee. That is provided for in the US constitution, however. It is not something the US Senate dreamed up one afternoon or that the entire US Congress decided would be a proper amendment to the appointment of judges in America even though there is no mention of it in the constitution. It is provided for in the US constitution that it is the way in which judges of the federal courts of the United States are appointed.
I will go back to the point that no mention whatsoever is made in the American system of judges having any say, still less a veto, over the appointment of any of their number to any federal judicial position. The same applies in New Zealand. The same applies in Canada, where they have a written constitution, and in Australia. It is the Government of Australia that advises the Governor-General, and the same in New Zealand, to appoint persons to their highest courts. I think the same applies in Canada.
I have no problem with a judicial appointments commission which would make recommendations or express opinions. That is fine. However, it is an entire difficult thing to say that their opinions effectively determine the constitutional power of the Government to exercise its own discretion in these appointments. We will come to that at a later stage with other amendments, so I do not want to trespass on them. However, I want to ask that if three names, as provided for in this Bill, are somehow considered to be okay, why not five, or why not one? What rule of thumb, or constitutional slide rule, says three is enough for the Government to choose from, especially when the Government is prohibited from choosing anybody who is not on the list?
Effectively, we have to remember that the four judicial members of this body will know each other. Two of them, the President of the Court of Appeal and the President of the High Court, will be in daily communication with each other, and whoever the other two may be. The way things are stacking up, because of the pyramidal shape of the Judiciary, it is quite possible that one will have a Circuit Court judge and a District Court judge there. In effect, those four men or women will be in a position to say about anybody that, in the first place, they may never become a judge, because they will never put them on a list; second, that if they are a judge, they will go no further; and third, that if they are a judge in the superior courts, they will never be put onto the Court of Appeal or the Supreme Court. That is what we are actually providing for.
I am amused that Senator Ward's amendment has not been accepted, but it is notable that he asked what happens if the four judges go one way and the four lay people go the other way. What happens in such circumstances? The answer is that the list cannot contradict the view of the four judges, because there is no casting vote. There is no way of deciding such an impasse. A much more important question arises here. What is the likely cohesion of the four lay members regarding their knowledge of judges, and their knowledge of the outlook of judges and the like? What is going to happen with regard to them?
I believe there is nothing in the Council of Europe document which authorises a national parliament to override its constitutional arrangements. Where it states "which the relevant appointing authority follows in practice", it is using carefully chosen language. It does not state "which the appointing authority must follow" or what it is "legally bound to follow".
It is clearly put there that the practice should be that one follows the advice from such a body. There could be no constitutional objection were that kind of advice to arrive on the Cabinet table. The Government could say it knows the Supreme Court, has a good idea of the attitudes of the three people on the shortlist and, frankly, does not want to appoint any of them to the position of Chief Justice but would much prefer to select one of the other five members of the Supreme Court who it is prohibited from appointing because the Bill claims, for the Houses of the Oireachtas, the power to prohibit the Government appointing somebody whose name does not appear on the shortlist. If the carefully chosen language of the Council of Europe is that the relevant appointing authority follows in practice, which is clearly not a de jure obligation to follow it but just the expected norm, there could be no constitutional objection to this legislation. However, we have gone way past that. If the Council of Europe had wanted to say the relevant appointing authority "must follow", it would have said so. If that had been its meaning, it would have said it. Citing this opinion as a reason for the judicial commission in its present form is to misread the document in question. In any event, by any standard the opinion of the Council of Europe Ministers, no matter how firmly or universally held, cannot be something which authorises the abrogation of a constitutional discretion vested in our Government.
I want these two references removed from the Long Title because they are window dressing. They suggest in a slightly underhand way that the mandatory exclusion of the power of the Government to appoint eligible people either to the office of Chief Justice or ordinary membership of the Supreme Court, which is contained later in the legislation, is somehow required or directed by a decision of the Committee of Ministers. That is what those two references actually mean. They are not so required. I have no doubt the practice would be to follow a recommendation but, on occasion, the Government must be given the power to say it is sorry but it is not doing that; that it and not the commission bears responsibility for this appointment; and that, having watched the commission shortlist a lot of people and leave out many who it would have considered desirable appointees, the Government is now saying the group of three is not the best selection from the Supreme Court and it does not agree it should be tied to making a selection from among them. If it had been the intention of the Council of Europe that the judiciary must always select its own members and the government, no matter what is written in the member state's constitution, must always follow the judiciary's view on this matter or the judiciary's view when attached to the views of four laypersons, it would have said so. What it merely asks is that the practice should be to have regard for advice, recommendations and opinions. In this legislation we are going one unjustifiable step further and saying to the Government that a practice that is there must be made mandatory.
It should be noted that in respect of persons in the superior courts, the Judicial Appointments Advisory Board, JAAB, was never designed to give advice to the Government on those kinds of appointments. In fact, when Dermot Gleeson SC, one of our great Attorneys General, drafted an Act in 1994, he specifically provided that the JAAB should not trespass on the composition of the Supreme Court in the sense that the only way in which the board's views on that court could be relevant would be if somebody who was not a judge at all applied to the board to be recommended for appointment. There have been a few such instances. There have been very distinguished judges whom the Cabinet of the day selected from outside the existing Judiciary for inclusion as members of the Supreme Court. Those people were encouraged to apply to the JAAB and to be recommended by it. That was, to use the relevant phrase, the practice. All the Council of Europe says is that this should be the practice, but we are now saying it must be the rigid rule. That cannot be right. I have said enough in proposing the amendment.