Select Committee on Legislation and Security debate -
Wednesday, 6 Dec 1995

SECTION 12.

Mr. O'Donoghue

I move amendment No. 10:

In page 8, to delete lines 30 to 33 and substitute the following:

"‘judicial office' means an office being the office of Chief Justice, ordinary judge of the Supreme Court, President of the High Court, ordinary judge of the High Court, President of the Circuit Court, ordinary judge of the Circuit Court, President of the District Court or judge of the District Court.".

The purpose of this amendment is to provide that the Judicial Appointments Advisory Board will not only be involved in the appointment of every judge other than the Chief Justice and President of the High Court but that it will also be involved in an advisory capacity in these appointments. There is no reason why this should not be the case if the board is deemed competent to meet Government proposals on appointments to the Judiciary. Whether the individual is a District Court or Supreme Court judge, there is no logical reason for the Government to retain the sole discretion without any reference to the advisory board with regard the appointment of the Chief Justice and President of the High Court.

Ms O'Donnell

Section 12 of the Bill covers the interpretation section for Part IV which, with the Minister's proposal for a Judicial Appointments Advisory Board, is deeply flawed. We will deal with that later. We would be disingenuous in discussing this interpretation section if we did not remember the basis on which this legislation came about, creating a new system to radically change how we appoint our judges.

This Government took office on the back of one of the most divisive and bitter episodes in Irish political history. The crisis centred on the appointment of the President of the High Court. The damage it inflicted on both politics and law at the time leaves nobody in any doubt that all judicial appointments should be made in a fair and transparent manner and free from the possibility of any shadow of political bias or favouritism. The fact that this Bill seeks to exclude from that new appointments procedure the very office that brought down a Government is an absolute folly and a tribute to the shortness of this Government's memory.

It is crucial that all judicial offices should be subject to the same appointments process. If a new system is being introduced, it is wrong to exclude the presidencies of the various courts from it. It is also inherently unfair. Individuals appointed to ordinary judicial offices will, in theory, have the appearance of being appointed on merit, while appointees to the presidencies of the various courts will be perceived to have been appointed by reference to other criteria, such as political allegiance.

This exclusion is manifestly unfair and goes to the heart of the purpose of this Bill. I cannot believe that the Judiciary would support it. The exclusion of the appointments of the President and the Chief Justice of the High Court under our proposed new procedure, which is supported by members of this committee and the House because it is in the public interest that we have a new system of judicial appointments, is a deep flaw in the Bill, given the recent history relating to that appointment.

I hope members will support this amendment. In the debate surrounding the 1994 Bill, Fine Gael and Democratic Left Deputies were vociferous in their condemnation of the Bill because it failed to cover the presidencies of the various courts. I ask the Minister to put on record the arguments in defence of excluding these important offices from our new procedures for judicial appointments. It is fundamental that all judicial appointments be on the same basis. Making different rules for ordinary judges would be remarkable and could undermine the whole purpose of this Bill.

Mr. O'Dea

Deputy O'Donnell is correct in saying that the original Bill was drafted in the same way; the presidents of the various courts were excluded. Members of Fine Gael and Democratic Left were extremely vociferous about this on Second Stage and if it had reached Committee Stage, I am sure an appropriate amendment would have been put down.

It seems to make no sense to retain this section as originally drafted. The central purposes of the Bill are to provide a filtering system for the appointment of judges — we can talk about the merits or demerits of that system subsequently — and an independent appointments board which will be empowered to make a recommendation as to whether somebody is fit or worthy to be appointed an ordinary judge of any court. However, there is no filtering system for the appointment of presidents of those courts. The board is given no power to make any recommendations on somebody's fitness to be president of a court, but it can make a recommendation on somebody's fitness to be an ordinary judge of that court. That makes no sense. I cannot understand why the Bill cannot be amended, as suggested by Deputy O'Donoghue and Deputy O'Donnell, to allow the board, which will of course not involve the person looking for that appointment, to recommend who should be president when the vacancy arises.

If the Presidencies of the High Court, the Circuit Court or other courts are vacant, the Government of the day can bypass the entire independent judicial appointments system. It can appoint somebody from one of the professions straight onto the bench and make them president. For that reason, and since a different, more stringent and controlled system applies for the appointment of ordinary judges as opposed to those in charge of the courts, the Minister should accept this amendment.

Mrs. Owen

I will not be accepting the amendment. Its effect would be to put all presidents of the courts into the board's procedures which will, as Deputies said, be set up when this Bill is passed. I stress that the board is advisory. Under the Constitution, the Government advises the President on whom to appoint to these positions. Because of that, we cannot pass that final decision over to anybody else.

Deputy O'Donoghue and Deputy O'Dea are correct in saying the legislation did not contain this amendment in 1994. It did not contain it because, even with the speed with which this legislation was introduced, the people putting it together decided it was right to exclude the presidents of the courts. This legislation has a further section, section 23, which supports the approach requiring Government to first have regard to the suitability of serving judges when appointing persons to these offices.

There is a view prevailing that once people have been appointed as judges, we will not be able to see how they are behaving and performing as judges. There is no better way of knowing the quality of people as judges than having them on the bench and seeing how they perform. This is why section 23 has been included in the Bill. The suitability of the serving judges must be taken into account in the filling of these senior positions. It is not appropriate that somebody the Government would consider putting into these high offices would have to go through the system of the judicial advisory appointments board, which will have its own modus operandi. It is appropriate, rather, to leave to the Government the power to decide on the president, having due regard to the suitability of the serving judges available.

Deputy O'Dea suggested that the Government could select somebody straight off the street, or with ten or 12 years' practice, whichever is relevant to the specific courts. However, section 23 obliges the Government to first have regard to the suitability of serving judges. This is the way it should be. We either have faith in our judicial system, where judges can be tried, tested and examined to see whether they are suitable material for promotion to president, or we do not. I believe that once a judge is appointed, we have confidence in that judge. However, of necessity, not all judges will make the promotional system. In any walk of life people will not make it to the top as there is not room there for everybody.

The amendment would weaken the hands of the Government of the day in deciding who would be a suitable person to be a president of a specific court. I regret I cannot accept it. I would stress again to Deputy O'Donoghue and Deputy O'Dea that it was not considered suitable in 1994, even with the political temperature pertaining at the time, to which Deputy O'Donnell referred——

Mr. O'Dea

There was opposition in the Minister's own party at the time.

Mrs. Owen

There may well have been. However, Deputy O'Dea did not go on to say that Fianna Fáil members of the then Government would have moved amendments. It is easy for the Deputy to say that the provision may have been changed in the course of the Bill. I can only take his word that, as he said yesterday, he was given word that he could move some amendments, or that the Bill may have been amended on Committee Stage. We will never know, as the Bill never reached Committee Stage. This enables the Deputy to advise me now that the provision was not included in the 1994 Bill but that he was given a commitment or some kind of indication that, perhaps on Committee Stage, the position of the presidents would be put back into the remit of the Judicial Appointments Advisory Board. The Deputy did not say this at the time, so it was clearly not something he seriously pursued in the 1994 Bill, which was correct to exclude these positions.

Mr. O'Dea

Was the Minister's party incorrect, therefore, in criticising it?

Mrs. Owen

Some members of my party criticised it, but — and we addressed this earlier when we spoke about other matters — not everybody has the necessary wisdom, or a monopoly of wisdom. These matters must be debated and discussed. I am sure that the then Minister, ably aided and assisted by the Deputy as Minister of State in the Department of Justice, would probably have argued strongly, even against some of her party colleagues, that this section, as it was set out in the 1994 Bill, should remain. I regret I cannot accept the Deputy's amendments.

Chairman

I must ask Deputy O'Donoghue and subsequent Deputies to be as brief as possible in reply to the Minister. We are making very slow progress and I ask members to be conscious of this, as I am anxious that consideration be given to all sections of the Bill.

Mr. O'Donoghue

I fully accept the concept of the doctrine of the separation of powers as provided for in the Constitution and I am conscious of the fact that in the final analysis the Government, and the Government alone, has the sovereign duty of appointing a judge of any court in the country. In so far as it advises the President, the President makes the appointment, but only on the advice of the Government. The President's role in the appointment is, therefore, interventionist only and the decision is an act of the Executive, the sovereign Government.

It appears that, on balance, the Judicial Appointments Advisory Board does not interfere with this executive function. If it should ever become the case that the board exercises even a moral authority on the Executive to appoint judges, this could become a convention, which in turn could become a custom. The only question remaining then would be: when does a custom become a law?

In this context I am aware of the Minister's argument regarding the appointment of judges being an act of the Executive. However, if, on balance, one accepts that the appointment of judges of the courts can be done by the Executive, having taken advice from the Judicial Appointments Advisory Board, one cannot argue with any logic that the presidents of the courts, those who are in charge of them, should then only be chosen by the Executive.

The only reason I can conclude as to why this should be the case is that the Government has decided that it wishes to retain the control for itself, and to itself alone, as to who would or would not be the president of a given court, or, for that matter, the Chief Justice. The only reason the Minister and the Government would wish to do this is that, while it is provided that it must give consideration to those who are already judges, it nevertheless wishes to retain the absolute discretion to go beyond the Judicial Appointments Advisory Board and pick somebody with the relevant experience off the street, from the Bar or, hopefully, from the solicitors' profession — I do not suggest that there is anything wrong with this — and make this individual even Chief Justice.

However, we must look at the political reality. This Bill and this provision was an urgent imperative of the Labour Party this time last year. It is a testament to the political hypocrisy and opportunism of the Labour Party that, since Committee Stage on the Bill resumed here this morning, not a single Deputy from the party has attended to speak on the Bill. It is an extraordinary situation and one which cannot be let go without comment, derision and criticism.

Chairman

Deputy O'Donoghue, you will recall a contribution by Deputy Ferris on an earlier amendment wherein he stated he would raise the matter of the appointments to the higher courts at his parliamentary party meeting. I am sure that Deputy Ferris and his colleagues are at this meeting at present.

Mr. O'Donoghue

Deputy Ferris made his intervention yesterday. I also have a parliamentary party meeting today. There is no excuse for the situation.

Ms O'Donnell

Whereas I accept that the Minister, by inserting section 23, has put an obligation on the Government to consider existing judges first for appointments to the Presidency of the High Court, it still does not get away from the inherent danger, if the Bill is left unamended, that we could have a recurrence of the same debacle, political squabbling and mortifying scenes of two coalition partners fighting in public about whose man would be appointed to the Presidency of the High Court as occurred last year.

The Minister has not presented any convincing argument for maintaining this system. If we are putting in place a new system, it is imperative that it applies to everybody. If we do not have parity in evaluation during the filtering process there will be a political badge on the presidencies. That will undermine the appointment of particular people to the presidencies of the courts because, by statute, they have been excluded from the new procedure being put in place. The Minister has not adequately argued her case for excluding, in view of our recent history, the most controversial appointments, which are President of the High Court and Chief Justice of the Supreme Court. For that reason I will press the amendment.

Mr. O'Donoghue

I am pressing the amendment as well.

Amendment put.

The Committee divided: Tá, 10; Níl, 12.

Tá

• Gregory, Tony.
• O’Donnell, Liz.
• Kenneally, Brendan.
• O’Donoghue, John.
• Killeen, Tony.
• Smith, Michael.
• Morley, P.J.
• Wallace, Dan.
• O’Dea, Willie.
• Woods, Michael.

Níl

• Bradford, Paul.
• Mulvihill, John.
• Browne, John (Carlow-Kilkenny).
• O’Keeffe, Jim.
• Flanagan, Charles.
• Owen, Nora.
• Kemmy, Jim.
• Shatter, Alan.
• McDowell, Derek.
• Timmins, Godfrey.
• McGrath, Paul.
• Walsh, Eamonn.

Amendment declared lost.

Question proposed: "That section 12 stand part of the Bill."

Ms O'Donnell

The defeat of this amendment is a testament to the short memory of the Government with regard to the events which brought it into office. I deeply regret that an opportunity has been missed to improve the Bill by making the new judicial appointments procedure applicable to the appointment of the presidents of the various courts.

Question put and agreed to.