Amendments Nos. 11, 13 and 29 are related and amendments Nos. 14 and 14a are alternatives to amendment No. 13. Therefore, all these amendments may be discussed together.
SECTION 13.
I move amendment No. 11:
In page 9, subsection (2) (a), to delete line 3.
Under the 1994 Bill it was not proposed that the Attorney General would be a member of the Judicial Appointments Advisory Board and that three persons would be appointed by the Minister to the board. The Attorney General and the three persons appointed by the Minister are to be members along with the Chief Justice, the President of the High Court, the President of the Circuit Court, the President of the District Court, a practising barrister who shall be nominated by the chairman for the time being of the General Council of the Bar of Ireland and a practising solicitor who shall be nominated by the president for the time being of the Law Society of Ireland. This effectively enables the Minister and the Government to appoint 40 per cent of the membership of the board.
It is difficult to understand at face value why the Government decided this. The Attorney General is an ex officiomember of the Cabinet and the three members to be appointed by the Minister will, unquestionably, be politically partial to the Minister and her partners in Government. I can only assume it was decided that three persons would be appointed by the Minister in order to ensure that all three partners in the rainbow coalition would have a say in the recommendations which would be made to the Minister on appointments to the Judiciary.
I fully recognise that under the Constitution the appointment of members of the Judiciary is an act of the Executive and the President's role, in so far as she makes the appointments on the advice of the Government, is merely interventionist in its scope. However, there is a certain amount of moral pressure exerted on the Government to appoint a person who is recommended by the Judicial Appointments Advisory Board. This is best illustrated by the fact that it will be incumbent on the Government to publish in Iris Oifigiúil the fact that an appointment has been recommended by the board. If the individual who is appointed was not included in the list of names recommended by the board, Iris Oifigiúil would merely state that an individual had been appointed but there would be a deletion of all reference to the board.
The naked political fact is that in order to minimise any possibility of the appointment of an individual who is not politically correct, the Government decided to take a 40 per cent shareholding in the board. This is in stark contrast to what the Labour Party and its leader sought this time last year. At that time they did not seek to have the Attorney General or three political appointees on the board. What changed in the meantime? Sceptics and cynics will make up their own minds about this, but it is notable that the chairman of the Law Reform Commission, who would be relatively independent, is now excluded from membership of the board.
Under the terms of this Bill as opposed to the 1994 one, the composition of the board has been radically altered. I can only assume and, perhaps, state as a definite fact that the Government's impartiality in this matter is, to say the least, suspect and is seriously called into question. The old phrases and political cant of openness and transparency are now trampled upon in an unseemly rush by the members of the rainbow coalition Government to put their friends on the Bench. That should not be hidden from this House or from the people.
I will leave it to the Minister to deal with some of the cheap jibes to which we have been subjected. I want to raise a more fundamental issue which relates to the amendment and to the section.
On a point of order, this amendment is also tabled in my name. I do not know if Deputy Shatter has tabled an amendment to this section.
I just indicated I wanted to speak.
Anyone may speak to an amendment and Deputy Shatter had indicated his wish to do so.
I thought the people who tabled the amendments had the first right to speak.
They would have such a right if they were offering to speak but the Deputy did not do so.
I did offer to speak, but you obviously did not see me.
I have no difficulty allowing Deputy O'Donnell to speak now and I will contribute later.
She should speak as her name is to the amendment.
I have the right to speak to the amendment if it is tabled in my name.
It has been moved and no one is trying to ensure that you do not have an opportunity to speak.
It has not been moved by me.
The amendment is tabled in joint names, so it can be moved by either Member.
They were submitted separately, but they now appear together.
The committee has agreed to allow Deputy O'Donnell to make a contribution.
I thank Deputy Shatter for giving way.
The composition of the Judicial Appointments Advisory Board in the 1994 Bill was not perfect and it was criticised on the grounds that it contained too many big guns from the legal world. I remember the then Minister for Justice saying that she was open to suggestions as regards the composition of the board. That Bill did not go far, but this one so radically alters the original proposal that it has the capacity to undermine the board's credibility.
Out of a total of ten persons, no fewer than four, 40 per cent, will be associated in one way or another with the Government and the Minister of the day. That is not acceptable. The board has been transformed from an apolitical body to one weighted down by political interests. While this does not mean it will fail to come up with good candidates for judicial office, it is important that it is seen to do so in a manner which is free from political bias. Judicial appointments may be seen as a reward for services rendered. The deliberations of the board, which will be weighted down with political appointees, will be seen as merely rubber stamping the Government's executive function of choosing appointees.
The Minister must know that appointing the Attorney General, in particular, to the board will be seen as politicising it. Attorneys General are political animals who are appointed by the Government which they advise. The Minister may have good intentions as regards making three appointments of her own and her amendment states that she will appoint persons of the highest calibre and character and with the appropriate experience. However, she cannot speak for her successors in office. This proposal is flawed. I am not saying the present Minister will abuse the situation, but we are putting into statute the appointment of a board which is overly weighted down with political influence. The Minister must justify her actions, which will be enshrined in legislation if these amendments are not accepted. Her proposals strip the board of any semblance of fairness or impartiality.
As regards the evaluation of the people by the board for appointment to judicial office, particularly in relation to the publication in Iris Oifigiúil, it appears that the procedures which are operated by the board may be subject to judicial review if there is unfairness or if the Government ignores or sidesteps the people recommended and evaluated by the board and appoints an outsider. There are inherent dangers in this. Has the Minister considered the fairness of the procedures and the possibility that some of the decisions or recommendations of the board might be the subject of a judicial review?
Is the Deputy saying that if the Judicial Appointments Advisory Board recommended names which were published in Iris Oifigiúil and the Government, under the Constitution, appointed someone else who was not included in the list, someone who knew they were recommended could seek a judicial review although the other names were not published?
If fair procedures were not seen to be put in place in relation to how the board makes its decisions and evaluates the various candidates.
Is the Deputy saying if fair decisions were not made by the President of the High Court, the Chief Justice and the other people on the board?
Yes.
Their decision will be subject to a judicial review?
Because of the importance of their evaluation and recommendations on the suitability of one person over another, this might create difficulties as regards a judicial review of the fairness of the procedures.
The Minister has also tabled amendments which we are discussing, but perhaps for debate purposes we could allow Deputy Shatter to contribute and then the Minister can discuss her amendments during her reply.
I preface my remarks by saying I do not believe we will ever invent a perfect system for appointing members of the Judiciary. There are good things about the manner in which we currently make appointments because it does not subject anyone who might be seeking such appointment to any form of public embarrassment or rejection. There are also bad things about it because people suspect that political influence from time to time determines some of the appointments made. However, no one could identify a judge who, having been appointed even when they might have been identified as supporting one or other political party who was part of the Government of the day, has brought political bias to bear on a major case of any nature since 1922. We are changing a system which may be flawed but which has worked well and we are introducing a new system which is born of a major political controversy. We are slightly amending what the previous Government proposed.
I want to make a number of points relating to the amendments and what is being proposed. I want to take up what Deputy O'Donnell said, which is of relevance both to the amendment and section 13 and will probably also be part of the debate on section 14 as it is difficult to disentangle them.
This board and those who are appointed to it will be empowered to do a number of things. In particular they will be empowered, having received applications for judicial appointments, to consult persons concerning the suitability of applicants. They will also be empowered to arrange for the interviewing of applicants and then submit their list. I wonder to what extent this has truly been thought out. If I seek a judicial appointment and am called to interview, I am entitled to know if anything is being alleged against me by people who have previously been consulted by the commission. The commission may interview me and subsequently consult other members of the legal profession with whom the particular applicant may not be flavour of the day.
The legal profession is not perfect and it is not unknown for colleagues, on occasion, to be in some angst with other colleagues. I know this is only an advisory body but I am not sure whether people have considered the extent to which the procedures envisaged here could, of themselves, give rise to difficulty and litigation as well as a perception of unfairness when particular names are nominated. This is why I have reservations about rushing all Stages of this Bill through the House.
Hear, hear.
The Minister and the Government want to get this right, but a serious issue arises out of that. I will say no more about it but I would be very interested in the Minister's reply.
I relation to the personnel, I am perhaps returning partially to things that have already been said. I am, however, concerned about the personnel proposed for the commission. I do not have the remotest concern about the three people the Minister of the day will have to appoint. That does not worry me, but it is somewhat of a snide and gratuitous point to suggest that there is one for each party in Government. Some Governments may comprise three parties, some may have two and, if Deputy O'Donoghue fulfils his aspiration, maybe one day, this side or the far side of the year 2000, we might see a one party Government from some party or other.
They will appoint three.
That is a snide and irrelevant point, but there is a more substantive point. Although the nominees are distinguished lawyers, whom I would have no reservations about on an individual basis, they are all men. We have not yet had a President of the High Court, Circuit Court or District Court who is not a man. There is a serious imbalance in the Judiciary in that there are substantially more male members of the Judiciary than female members.
In the context of the practising legal profession — and excuse me again for mentioning solicitors — there are now as many practising women solicitors as there are male solicitors. Also, from what I see happening in the Bar Library, there are now as many practising women barristers as there are male barristers. However, there is currently a substantial gender balance in the Judiciary.
If we take those five people, at the moment they are all men. Perhaps sometime in the future they will not be, but there is a danger that unless some measure is included in this Bill that requires some degree of gender balance, we will set up a commission which will perpetuate the perception that some lawyers may have that men are more suited to be judges than women. It is entirely wrong. Our Judiciary and the legal profession have been well served by those women who have been appointed at various levels of our courts, but there are too few of them.
As regards the appointees from among practising barristers and solicitors, there is a possibility that one or both may be women, but we do not know. I am loath to make this commission any larger than it is because there is a danger that it will become unwieldy. If it was not as large as it already is, I would suggest — if there are to be practising barristers and solicitors — that there should be two of them and that they must be gender balanced. They should be the only criteria imposed. That is a serious issue which we have not yet discussed.
Another element comes back to some extent to the previous debate. Leaving aside the three possible ministerial appointees and the practising solicitor who might be nominated by the Law Society, we know that five members of this body will automatically be barristers. The President of the District Court, of course, will normally be a former solicitor, but not necessarily so. I am anxious to ensure, as the professions may be represented on this body, that there should be an equality of representation in so far as that can be brought about.
These are serious issues that are worth discussing as this Bill is going through, although I am not sure we can solve all of them. I have reservations about this particular procedure for appointments, but I can equally see its merits.
I noticed that in today's Irish Times, Vincent Browne has a lengthy article on this. A large portion of the article seems to be taken up with the perception that if a judge is a judge of the District or Circuit Court and if they are being considered for the High Court or Supreme Court — of if they are in the European Court and are being considered for the Supreme Court — that they have to go through some sort of interview with people whom they may even work with in the future or to whom they might be in a superior judicial position. He regards that as demeaning. But it is worth pointing out — simply because that article, presumably, has wide currency — that he is wrong. There is a specific section in the Bill which provides that if a sitting judge is to be appointed or promoted to an alternative court, there is no question of a sitting judge going through this procedure and being interviewed. That is right and I do not believe we could have sitting judges in that position. It would be a very serious interference with the independence of the Judiciary. That article should be corrected.
My amendment No.14a states:
In page 9, subsection (2)(c), line 11, after "the Minister" to insert "who shall be persons engaged in, or having knowledge or experience (being knowledge or experience that the Minister considers appropriate) of commerce, finance, administration or persons who have experience as consumers of the services provided by the courts that the Minister considers appropriate".
This amendment is for purposes of clarification. I listened carefully to the arguments put on Second Stage. To the best of my ability I am trying to be as co-operative in the system as I possibly can. On Second Stage a number of Deputies were concerned about these three appointments. Comments were made both on Second Stage and here that somehow or other this is packing or completely overloading the board with political appointees. I do not believe that. That is intemperate language and does no credit to the committee, which has dealt so constructively with this Bill.
On the aborted Second Stage in 1994 there was a discussion on the nominated board, which was much as it is now, apart from the fact that the Attorney General is going in instead of the President of the Law Reform Commission, and that there were no lay people. The then Fianna Fáil Minister said she would look very openly at the case made for having some lay people on, precisely because of some of the points that have been made here today — that the board, of necessity, with the presidents of the different courts, will be made up of people from the judicial system.
There are times, as with the Solicitors Act, where lay people should have an input into these kind of deliberations. Deputy Shatter and Deputy O'Dea sat daily working on the very substantial Solicitors Act, which provided for lay people to be appointed to the solicitors disciplinary tribunal to ensure that there was a consumer voice, as it were, on that other than people who are trained solicitors or from the legal profession.
I reject the intemperate comments I heard on Second Stage and, to a lesser degree, today that by widening the membership of this judicial advisory board to allow people of certain backgrounds to be appointed by the Minister of the day and approved by the Government of the day is packing the board. I reject that not just on a personal level as the current Minister but also on behalf of future Ministers who would be accused of packing this committee. It is nonsense to say that the committee will be "packed with political hacks" as somebody said on Second Stage.
I reject that. Far from it being a retrograde step it is a positive move to ensure that there are other voices on that body, voices that will have appropriate commercial, financial and administrative experience or which will represent consumers. In setting up the working group on the courts commission I have already demonstrated that I am willing to have voices that perhaps might not always be kind to the system they are examining, people such as the chairperson of Women's Aid and management consultants who are not of the profession that is under the microscope. That is a good policy and I will continue to follow it.
I ask members not to detract from the policy of having outside voices on the advisory board. What is wrong with the Minister or Government of the day considering somebody from a victims' group or a consumer group that represents people who have to go to courts to deal with family problems? Why should there not be a voice putting forward that point of view when advising the Government on the appointment of judges? That flies in the face——
Nobody would object to that.
—— of what the Progressive Democrats have said on numerous occasions when they have sought outside voices that are non-sectoral. It is the practice in appointing boards such as the Garda Complaints Board for people to say that it should not be a case of "Judge, judge thyself" in the broad sense of that expression. It is appropriate that there be a facility to include people from outside the judicial system.
As Deputy Shatter has said, the presidencies of the courts I have inherited are held by men and that has been the situation for many years. The President, on the advice of the Government, has already appointed a woman judge to the High Court. Some of the comments that have been made today are not appropriate. Appointments have been made since this Government came into office, but appointments were also made by previous Governments. Some of the comments have inferred that this Government's appointments were bad. People have their own views about different personalities, but I believe that when somebody has been appointed to the Judiciary they have shown themselves to be impartial on the bench.
It is important that I, as the Minister, say that. Members can voice their own views but I have never seen a judge make a decision about which somebody could say that they made it because they were a member of Fianna Fáil or the Progressive Democrats or the Labour Party or Fine Gael. There has never been any such criticism about a judge in this country and I hope there never will be. When judges take on their role on the bench they take it on as an independent member of the Judiciary.
Comments have inferred that the eminent people who have been Chief Justice, President of the High Court, President of the Circuit Court and President of the District Court would act in unison on a board known as the Judicial Appointments Advisory Board and set up structures that would not be fair. The legislation lays down what they may do and Deputy Shatter is right in saying that they may consult. They may do that or decide in the course of their operations that they will not do that. They may decide not to advertise. I have spelt out in the legislation, without prejudice, that the board is allowed to adopt what procedures it thinks are appropriate. That is to ensure that nobody can accuse me or this Government of dictating how the board will reach its decisions on the advice it might give to the Government.
It is an advisory board. Under the Constitution we cannot hand over to the board — and some of the debate seems to imply that it would be right — total power to decide who should be appointed with no such power given to the Government of the day. That is not permissible under the Constitution and the people who drafted the 1994 Bill knew that also. That is why this is an advisory board.
Some comments about the implications of appointing the Attorney General to this board were not merited. They could be taken as a personal slight on the personage of the Attorney General.
It was a general remark.
The Deputy might not have said that. However, the implication was that the Attorney General sitting on this board would allow politics to enter its decisions. He or she will be one member of the advisory board and not the whole board. I believe that in the exigencies of preparing this Bill in 1994 the Attorney General was left out and the Law Reform Commission President or some other person was included because of the particular problems at the time with the particular Attorney General. I offer that as my opinion in looking at the situation.
It is correct that the Attorney General, who is the senior law officer in the land, will have a linkage with the Government and will be able to come to the Government when the names come before it and clarify any points that might have been made about the particular recommendations. Deputy O'Donnell wants to speak, but she did say that the appointment of the Attorney General would add to the weight of political appointments on this board. The inference is that the Attorney General would bring a party political influence onto the board. I do not believe that will be the case and it is not merited to say as much. The Attorney General would be an independent member of that board.
I must interrupt.
The Minister has totally misrepresented what I said. I was making a general point about all Attorneys General.
Your point is on the record.
This is important. I do not want it to go out from this committee that I implied that the current Attorney General would be a blatantly political presence on the board. I am not saying that. I was making a general point that the decision to include an Attorney General who is a political appointee on such a board has its defects. I certainly would not refer to the current Attorney General — it was a general point. It was also made by other Deputies.
The Deputy said that the board would be weighted down with political appointees, including the Attorney General.
I am not talking about the current Attorney General.
I am bringing down the curtain on this debate until 2.30 p.m. I will be unable to chair the meeting in the afternoon or tomorrow as I have to be elsewhere on official business. I propose that Deputy John Browne act as temporary Chairman. Is that agreed? Agreed.
Sitting suspended at 1.20 p.m. and resumed at 2.30 p.m.
Carlow-Kilkenny):We are resuming debate on amendment No. 11.
The presidents of all the courts are male. An advantage in having three outside nominations is that it gives an opportunity to correct any gender imbalances. If a time comes when all the presidents are women, we may need an opportunity to correct this imbalance but none of us will be around when this is the case. Under amendment No. 14a, nominees must have commercial, administrative and other experience relevant to membership of the board. It is also important that any gender imbalance is corrected. The Bar Council of Ireland and the Law Society of Ireland have the right to appoint whichever gender they want. They are not bound to appoint the president of their associations. That allows for latitude and flexibility.
Before the recess the Minister said that the previous board was "much as the board will be now" and that there would be only a minor change between the two boards. That is a blatant misrepresentation because the previous board, under the 1994 legislation, consisted of people independent of the Government. Some 40 per cent of this board consists of political appointees. The Attorney General is the legal adviser to the Government and he is, almost invariably, a supporter, if not a member of one of the parties in Government who works hand in glove with it. The Minister will handpick three other people to put on the board. Some 40 per cent of the board consists of people who directly represent the Government.
The Minister made much of the fact that we were objecting to the principle of lay people on the board. That is not true; we have no objection in principle to lay people. However, we object to lay people who are handpicked and appointed by the Government. The Minister said we were trying to exclude people such as the chairperson of Women's Aid or the chairperson of Victims' Support Group. We have no objection in principle to those people, provided they are selected by their organisations and not by the Government. For example, if the Minister is so concerned to put people such as the chairperson of Women's Aid or Victims' Support Group on this board, why does she not include a section on Report Stage which states that the three Government appointees will consist of one of a number of organisations? The Minister could then choose the three people from those nominated by these organisations.
The Minister mentioned the Solicitors Act and that lay people were appointed to the disciplinary committee of the Law Society of Ireland. However, that committee disciplines solicitors for serious misconduct. It is a horse of a different colour when the Government appoints people as part of a so-called independent board to consider who should be eligible to be appointed as a judge. There is no comparison between the two.
Having listened to the debate on Second Stage, the Minister tabled an amendment which is an insult. It is a figleaf which gives the illusion that these people will be independent of the Government. They must be experienced in commerce, finance or administration. However, there is no specific level of experience required in these areas; it is such experience as the Minister considers appropriate. I presume anyone who owned a shop, worked in a supermarket or ran a disco will have some experience of commerce; anyone who worked in a bank will have experience of finance; a farmer will have experience of commerce or business; and anyone who ran a youth club will have experience of administration. This is a fig-leaf which tries to create the illusion of independence. I support the principle of lay people on the board, provided they are picked by their organisations, independent of Government and not selected by the Minister of the day.
I also deplore that the Minister sought to misrepresent Deputy O'Donnell's contribution. She stated that Deputy O'Donnell was making allegations against the present Attorney General but as I understood it she was not. Deputy O'Donnell was making the point, with which I agree, that the principle of appointing the Attorney General of the day to such a board is a retrograde step which must be deplored. I am friendly with the present incumbent of the Office of Attorney General, Mr. Dermot Gleeson, whom I regard as a person of the highest integrity and on whom I wish to cast no aspersions. However, I will still criticise the principle of appointing the Attorney General to this board.
For example, what happens when the Attorney General is interested in appointment to one of the superior courts? We all know the Attorney General of the day has frequently been appointed to a High Court or a Supreme Court vacancy. There is a provision in the legislation that the Attorney General must stand aside from the board if he is an applicant. However, we must bear in mind that the Attorney General is a member of the board which deliberates the suitability of people for judicial office. What happens if there is a vacancy in one of the superior courts, the Attorney General is an applicant and the committee decides in its wisdom that he will not be one of the people recommended? The Attorney General is expected to return to the board for the next consideration which arises. That does not create a good relationship and I cannot imagine that the board will ever be in a position to reject the Attorney General on suitability grounds if he puts his name forward. If the Attorney General remains interested in any future vacancies — there is a succession of vacancies to the superior courts — will he be permanently excluded from the board while he is rejected on each occasion?
The Attorney General is part of the mechanism which advises the Government when it is appointing somebody to the superior courts. The Attorney General is being given a dual role in that he is being made part of a board which filters people for appointment and he then advises the Government on such appointments. That is inappropriate. Why is the Government proposing to put the Attorney General on this board? The reason is simple. The Attorney General is the Government's legal adviser who, almost invariably, is associated with one of the parties in Government and he is being appointed to make up a Government bloc of 40 per cent of the membership of the board.
A Government bloc on the board comprises 40 per cent of it. In view of the fact that the board must submit not less than seven names — it was ten — can anyone argue that if there is a bloc which comprises 40 per cent of a board which is supposed to filter people, and not less than seven names are being forwarded, that 40 per cent will not be able to ensure that a particular name is sent forward if that is the name desired? Of course they will. It is not a case that the board is only recommending one person and where the 60 per cent majority might be able to cobble together a coalition against the Government bloc. If not less than seven names are being sent forward — there may be an unlimited number of names because there is no maximum limit — the 40 per cent bloc will be able to ensure that the desired name is sent forward.
Deputy Shatter criticised the provision whereby persons can be consulted. I agree because that is a dangerous provision. The Minister said she might decide not to go that way, but that seems like an argument against the case made by Deputy Shatter who made the point that, regardless of what the board in its wisdom decides to do, it should not be given such power? I can imagine a situation where someone on the Judicial Appointments Advisory Board might not want a particular applicant to be sent forward for reasons which have nothing to do with his suitability for office. If the board operates this way and if this power is given to it, that person could arrange for an agreed former client to write to him or to the board expressing severe criticism of that individual. That is undesirable and dangerous.
I refer to Minister to section 2(d). All the names must go to the Minister each time there is a vacancy. Another list comprises the seven names which the board is empowered to put forward.
The Government bloc can ensure that the appropriate name goes forward but there is one little loophole left, one barrier in the way of this thing being truly objective and independent. What if the desired applicant does not write in at all? Subsection (d) is designed to deal precisely with that situation. The board is empowered to contact the person who has not applied and tell them to write in.
I recently saw a newspaper advertisement for air hostesses which included the provision that canvassing will disqualify. In relation to this board there is no provision that canvassing will disqualify. In addition, the board is being empowered by legislation to canvass people who have not applied at all. That is ludicrous.
I was in Government when the original legislation was proposed and I remember the pressure and trouble at the time which came exclusively from the Labour Party. It was made quite clear to us that the Labour Party was not prepared to stay in Government one day longer unless this legislation was immediately implemented. That was in November or December of 1994. However, the Labour Party was prepared to stay in a Government of a different complexion for 12 months when there was no sign of this legislation. The Labour Party is now standing over a total watering down of the socalled independent judicial appointments board.
Earlier today the Labour Party voted against a proposal which would have put the presidents of the various courts through some sort of filtering system. It need not have been the precise filtering system proposed. There was nothing to stop the Minister from accepting some filtering system for the bosses of the courts if we are going to have one for ordinary judges down the line. That says quite a lot about the Labour Party. I only have to state the facts and people can draw their own conclusions.
About a month before the previous legislation was produced, a Fine Gael Private Members' Bill was introduced in the Dáil by that well known siren of the times, Deputy Gay Mitchell. At least, he was a siren in those times although he is very quite now. I remember some of the Bill's main provisions. Deputy Gay Mitchell wanted nothing less than the Great Wall of China to come between the Government and the appointment of judges.
Democratic Left is the third party in Government and anybody who reads Deputy Gilmore's speeches on the Second Stage of the 1994 Bill would have to conclude that Deputy Gilmore is now easily pleased in view of his high aspirations last November.
The Minister should substantially amend this section of the Bill to put in place a proper filtering system. We had a lot of talk and protestation about honesty, openness, transparency and accountability by the Minister's party and by Democratic Left when both parties were in Opposition, and by the Labour Party in Government. Unless this section is substantially amended I will have to regard all that fine flowing rhetoric as hollow, empty and meaningless. In effect, the Government has emasculated the filtering that we sought to put in place in November 1994.
In his contribution Deputy Shatter said nobody could point to anything wrong with any of the judges appointed under the present system whereby the Minster directly makes such appointments. I agree that is true and he is right. If the Minister does not want to put a proper filtering system in place — which it seems quite evident now, unless she substantially amends this section — she should delete the section entirely and let the present situation stand. It is only a fig leaf which means nothing. It is an elaborate charade to create the illusion that there is a proper filtering system when in fact there is not. What the Minister is putting in the Bill is not a filtering system for the appointment of judges but an illusion. It will change nothing, please nobody and — from the feedback that I have received — it will not fool anybody either.
We must be careful not to go into Second Stage speeches. That danger is there. From now on, I appeal to Deputies to stay on the point.
Like previous speakers, I was surprised by the Minister's comments just before we broke up. They were quite unfair in relation to Deputy O'Donnell because I do not think that was the point she was making. It is clear to all of us that the Attorney General — whether he is yesterday's, today's or tomorrow's one — is a political appointee. There is no doubt in anybody's mind about that. We can go further and say that all members of the Judiciary are political appointees because they are appointed by the Government of the day.
As I said on Second Stage, I was surprised to see that it is proposed by the Government that the Minister for Justice may directly appoint as many as three of the ten board members as well as the Government-appointed Attorney General as an ex officio member. In the context of last year’s controversy this simple initial proposal could easily be interpreted as cynical and almost unbelievable. If the body is to be genuinely independent we are going down the wrong road.
Going back to the origin of this Bill, it is about what took place last year when a Government fell because of divisions and difficulties between the leaders of both parties, the Taoiseach and the Tánaiste. We have waited over 12 months for a Bill which was supposed to be so urgent that people could not even get back to their offices to discuss it. It had to be discussed at Baldonnel aerodrome.
I am used to history lessons, but on the other hand maybe we should leave history behind.
I am glad you said that, Chairman, because that is the nub of the problem. Many people want to leave history behind them.
We are trying to deal with amendments on Committee Stage.
We should have our say because the Minister had her say on this very serious issue. I was highly involved in it last year. What is in here certainly does not reflect the public's perception. Last year the Labour Party was concerned about transparency, openness and accountability yet we have not seen it in here. This Bill is a charade. The most important section of this Bill is section 23 which is also the smallest. I will read it because it has to be said. I know people want to go on because they do not want to hear, but we are here for a very important matter.
On a point of order, we are not on section 23.
You cannot go on to section 23 at this stage. You can discuss it when we come to it.
I am talking about section 23 in the context of what we are dealing with here.
We are dealing with section 11. When we come to section 23 you can have your full say on it.
In fairness, Chairman, people have gone all over the place here.
I am trying to bring people back to reality.
I should have my say as well. The origin of this Bill is in the events of last year which are not reflected in the Bill. It is a fraud because it does not address the issue. As regards the point that 40 per cent of the board will be appointed politically, let us not fool ourselves. The Minister will pick people whom she thinks are eligible for it. Do not have any doubt about it.
Will the Minister be leaving it to the organisation that she mentioned before lunch to nominate people or is she going to pick the people? The contradiction of having the Attorney General as a member of this board in the light of what happened to the Attorney General last year is very clear. It is a retrograde step. As it is, the commission is weak enough in so far as it can only make recommendations. It cannot even make recommendations on senior positions. This commission will have no say over the position that caused all the problems last year.
I am sorry if I was long-winded and did not comply with the Chairman's ruling but the fact is that the political element of this is clear. The attempts to overcome the problems inherent in last year's appointment of the President of the High Court are not addressed in the Bill. Let nobody be under any illusion about it.
Instead of being weighed down with history perhaps we could use this meeting to make news and do something positive in changing the legislative process. I do not see any purpose in going back to this time last year to engage again in a debate that is long since over.
My comments before lunch were to make it clear that I objected to the inference that an Attorney General would go on such a board with people like the Chief Justice, the Presidents of the Circuit Court, the High Court and the District Court and would suspend critical analysis of people coming before it for consideration for appointment as judges. That comment was made by Deputy O'Donnell and reiterated by Deputy O'Dea. It is wrong for Opposition Members to make outlandish statements that the board will be packed with political appointees as if the appointment by a Minister or Government automatically means that those appointed will object to a particular person. Deputy O'Dea has inferred that that has been the way they worked for years. The correct ways in which this advisory board will work are built into the Bill.
I worry that statements have been made under a misapprehension that this board will make the appointments. The board will advise and make recommendations to the Government on appointments because there is no other way without a constitutional amendment. There may be five, ten applicants or none for particular appointments. I do not know how this will work because there has never been such a board. I cannot look into the future to see how barristers and solicitors will respond to requests for applications, etc.
There were no details as to how the board proposed in the 1994 legislation would work. In this legislation I have set out some ways in which it may work but it will make its own decisions. I know it is good for a headline for the Opposition but I object to this suggestion that this 40 per cent block will always be unanimous and there will constantly be a 40 per cent to 60 per cent vote on who might be recommended. I reject that depiction.
Deputy O'Donoghue's and Deputy O'Donnell's amendments propose to remove the provision for the appointment of the three lay people. Yet on Second Stage, Deputy Cowen said we do not need this judicial appointments board and it was only included for reasons of political expediency last November. Deputy O'Dea began by implying that he did not want the provision but then said he was in favour of lay people and that they should be specified. However, this amendment seeks to remove the provision. I think there is some confusion in the Fianna Fáil Party. I am satisfied there is a case for lay people on this board and in amendment No. 14a I have indicated the type of people who will be appointed to what will be no more than an advisory board to make recommendations to the Government.
This Bill is not about what happened last November or the troubles the last Government had. It is a sincere and honest effort to make changes in our courts and court officers system. It deals with the appointment of judges and a range of other things. I reject the allegation that this is a continuation of a row that went on last year in November. This is a serious attempt and it is why it has taken until now to introduce the Bill. The previous Bill was not given the type of consideration it should have been given. Fianna Fáil Deputies depicted the manner in which it was introduced. I took time to examine the Bill and I have improved it considerably.
There will be further amendments but I want the Bill passed. Other changes required can be made in other legislation. Even if we debated this Bill for six months, I would still get another suggestion as to something else which could be done. I am trawling through suggestions and I will not ignore good ideas which I cannot take on board in this legislation. I reject the inference that this Bill is a fig leaf because we need a judicial advisory board or new judges. It is a more serious attempt at court improvement than Deputies are giving it credit for.
The turning on of the Christmas lights seems to have had an extraordinary effect on the imagination and recollection of some Opposition Members. To suggest that this Bill arose out of something connected with the collapse of the last Government is fantasy. We tried to get this positive legislation as a quid pro quo for the disreputable carry on of the Fianna Fáil Members of that Government led by Deputy Albert Reynolds in doing something which he now obviously bitterly regrets. We tried to pull this one positive development out of it and I am glad we have eventually managed to do so.
Life is full of regrets and I do not want to engage in history lessons but when history is misrepresented, I must put the record straight. I was a member of the Government and it was quite clear that the Labour Party was not prepared to stay a day longer in office if this legislation was not immediately brought before the House, which explains the speed with which it was produced. Despite the speed, it was better than what we now have before us. The amendments hardly justify a year's delay.
I have no problem with lay appointees but with the fact that the Minister will appoint them. It should be specified in the legislation who the appointees might be or what group or organisation they might come from, for example, they could consist of the Secretary of the Department of Justice, the Chairperson of the Employment Equality Agency who would have an impact on gender equity, a member of the Law Reform Commission or a senior Civil Servant in the Attorney General's Office.
The senior legal assistant.
The Minister knows there are flaws in the board as suggested. We can only point out our reservations. It is obvious the Minister is determined to go ahead with the composition of the board as it stands which is perceived as being weighted down with political appointees. I will withdraw the amendment in the light of my comments.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 9, subsection (2) (b) (i), line 5, to delete "General".
The purpose of the amendment is to delete the word "general". It is no longer called the general Bar Council. It is a technical correction.
Amendment agreed to.
Amendment No. 13 was discussed with amendment No. 11.
Given that the Minister appears determined to use her parliamentary majority to vote down any amendments which might improve the Bill and to make progress, I have no option but to withdraw the amendment.
Amendments Nos. 13 and 14 not moved.
I move amendment No. 14a:
In page 9, subsection (2) (c), line 11, after "the Minister" to insert "who shall be persons engaged in, or having knowledge or experience (being knowledge or experience that the Minister considers appropriate) of commerce, finance, administration or persons who have experience as consumers of the services provided by the courts that the Minister considers appropriate".
Amendment agreed to.
Section 13, as amended, agreed to.