Dáil Éireann Debate, Thursday - 8 July 2004
3 Mr. Cuffe asked the Minister for Justice, Equality and Law Reform the details of the criteria used in the nomination and appointment of members of the Judiciary; and if he has plans to review the present system. [21215/04]
View answerThe Judicial Appointments Advisory Board was established pursuant to the Court and Courts Officers Act 1995. The purpose of the board, simply put, is to identify persons and inform the Government of the suitability of those persons for appointment to judicial office. By definition, the board's remit is advisory and the ultimate decision as regards appointments of persons to the Judiciary rests with the Government.
The board consists of the Chief Justice, the Presidents of the High Court, Circuit Court and District Court, the Attorney General, nominated representatives of the Bar Council and the Law Society and three lay persons nominated by the Minister for Justice, Equality and Law Reform. Section 14 of the Act enables the board to adopt such procedures as it thinks fit to carry out its functions. In practice, the board places advertisements for applications for judicial appointments in the national press and requires applicants to complete a detailed application form which includes questions on their practice, their professional qualifications, education, character etc.
Under section 16 of the Act, where a judicial office stands vacant or before a vacancy in a judicial office arises, the board, at the request of the Minister, submits to the Minister the names of all persons who have informed the board of his or her wish to be considered for appointment to that judicial office and the names of at least seven persons whom it recommends for appointment. With one exception, since the Act came into operation, persons have been appointed on foot of the recommendation from the board. In the sole exception where it did not happen, the person had been previously recommended and it was not possible in the unique circumstances of the case to go through the advertising process on a second occasion.
The Government, when advising the President on the appointment of a person to a judicial office, must first consider persons who have been recommended by the board. It is important to note that the board cannot submit nor recommend the name of a person unless that person meets the eligibility criteria set out by law for the post in question.
The board cannot recommend the name of any person unless, in the opinion of the board, the person concerned has displayed in his or her practice as a solicitor or barrister a degree of competence and probity appropriate to and consistent with the appointment concerned, is suitable on grounds of character and temperament, is otherwise suitable for appointment, complies with the provisions on taxation and undertakes to undergo training. Those are the criteria by which the Judicial Appointments Advisory Boards operates. It gives a shortlist to the Government, from which the Government selects.
Would the Minister consider bringing forward proposals to depoliticise the appointment procedure for judges? This would certainly remove the perception of political bias in their selection. I accept that in most cases the Government has taken the recommendations of the Judicial Appointments Advisory Board and given them to the President. If that is the case, why not remove the politicisation of the office of judge? In many countries the judicial appointments body is independent of Government. I think that would increase the stature of the judges we appoint.
Why not look at countries such as the Netherlands where half of the judges are appointed straight from college? Young graduates would be appointed and I believe they would be a fantastic addition to the way in which the Judiciary operates. We would benefit from an examination of what goes on abroad. The Judicial Appointments Advisory Board puts forward names to Government, which does not necessarily take those recommendations on board. I suggest the stature of the Judiciary would increase if the perception of the taint of political bias were removed. There are good examples as to how that can be done if we were to look abroad.
It makes sense to have the Presidency the Judiciary and the Legislature separate in so far as we can. I am at a loss to understand the reason we demean the Judiciary by putting them through this process of political vetting. I hope the Minister will consider other means of appointment. I accept that judges must be competent, have a degree of probity appropriate to the office, be of good character and temperament, but I suspect we might recruit better judges if the selection body was removed from political influence.
The common law system throughout the world has a different concept of the Judiciary from the civil law system referred to by the Deputy. In the common law system, the Judiciary has much more power than the Judiciary in civil law systems, their function is different, they are neither investigative nor prosecutorial in any shape or form and they are not career public servants. They are people chosen, usually in their mature years, on the basis of carrying out an arbitral role, which is quite different from the civil law system of investigative magistracy.
One of the strengths of the common law system worldwide is jury trial, which is another form of independent arbitral justice. No country with jury trial has ever succumbed to internal tyranny, whereas all the great tyrannies of the world have emerged in countries which have had the civil law system, which is an interesting historical fact. One of the great strengths of our Constitution is the significantly important role that we accord to the Judiciary.
The Constitution also provides that it is the Executive which nominates the Judiciary and that is common to common law systems. Under the Constitution, the Government of the day advises the President to appoint people to be judges. Without a constitutional amendment, that right must remain vested in the Executive. The days of party political appointments are over and if one looks at the pattern of appointment in recent years, one will see the previous pattern, which existed a long time ago, of party political appointments has, largely speaking, come to the end. That is a good move. It is good that Government chooses people who are known to it to be supporters of Opposition parties for appointment to the Bench. I am happy with that pattern. If one checks the recent record, one will find that has happened more frequently now than ever before.
I am not attracted to a clone of the civil law system. We could have much more politicised appointments of judges, such as happens in the USA where every judge is the subject of an intensive mangling process in which the Houses of Congress sometimes examine in great detail everything to do with the judge, and quite political considerations come into play as to the outlook of the judge and so on. I do not think that is a desirable model to follow.
