This is a piece of controversial legislation that would see a lay-majority panel chaired by a lay person recommend judges for appointment. I am coming to this Bill from a non-legal background, and as one of those dreaded lay persons who seems to be causing alarm around the place! I believe in fairness and justice, not a theoretical justice but a justice that is seen to be done.
It is wrong that one can point to a judge and say that is a Fine Gael appointed judge, that is a Labour Party appointed judge or that is a Fianna Fáil appointed judge, where there was some party affiliation in order to secure the appointment. It is very important that the most suitable candidate gets the job in a transparent way where there is no political influence at all.
It also comes out after the unsavoury appointment of the former Attorney General to the Court of Appeal. I have heard the arguments on the legality of that but there are ethical considerations and certainly the process that was in place was not followed. We still do not know if the Attorney General applied, we do not know about the other applicants and it is appalling to think a candidate for a position would remain in the room when that appointment was being discussed.
I listened to the Minister’s speech yesterday and I actually liked much of what he said. I want to acknowledge some of those points, namely, that it is vital that we have an impartial administration of justice because that is central to democracy. There is a need for confidence in the administration of justice in Ireland. That means transparency in the process of judicial appointments. There is also a commitment to the independence of the Judiciary. The new procedure will reflect best practice in selection methods and processes internationally. It is a progressive approach to reform and an objective that membership of the Judiciary should comprise equal numbers of men and women and also reflect diversity within the population as a whole. On the aspect of merit, the recommendation and selection process should focus on merit, not as a guiding principle but as the criterion to underpin selection and recommendation of persons for appointment. I also welcome the opening up of eligibility arrangements for District Court judges and legal academics. The Bill recognises that knowledge and experience of court practice is an essential qualification. I also welcome the idea that there will be a review after five years, although I would probably have preferred it after three years.
There is nothing in that for me to disagree with but where I take issue is the manner in which the Bill is being taken. We have a process which is working through the justice committee where a somewhat similar Bill was being discussed and where amendments were also being taken. I do not like the idea of the Bill coming into the Dáil in this manner here at the expense of other Bills that were to be discussed before the summer recess and are now being pushed further back. The Judicial Appointments Advisory Board seems to have been completely ignored; it was certainly relegated to a very minor role. It is difficult to accept that there are good intentions with this Bill when it comes from such a disturbing and a disquieting background. It is undermining what is fair and sensible in this proposed Bill. There was a missed opportunity in that the Bill did not follow the normal pattern of Bills in the Dáil and while this is about due process, there is a lack of due process with this Bill and also in the appointment of the former Attorney General to the Court of Appeal.
The Minister, Deputy Flanagan, mentioned the quality, diligence and integrity of the Judiciary to date. While that is probably true of many of the Judiciary, there are examples of lack of quality and also a lack of diligence. There have been notorious and infamous cases of judges who were sadly lacking. I refer to the historical case of a judge who slept through the proceedings of that particular court. We have had cases of decisions in court that defy logic. In cases of sentencing, they err on the side of leniency in some cases and err on the side of severity in others and there have been cases where judges have been extremely disrespectful to juniors and to gardaí, undermining them in court. Judges can say what they like in court and the person is not there to defend themselves, to answer or to challenge what is being said.
I know the controversy this Bill is causing but I am taking my opinion on this from the comprehensive paper from the Library and Research Service. In December 2013 the Department started a consultation process and we know there were detailed submissions on this matter by the review committee, the Judicial Appointments Advisory Board, the Law Society, the Bar Council, the Free Legal Advice Centres and so on. The Minister said that “Much of the content of Bill reflects the outcome of that process”.
I also note the Council of Europe’s anti-corruption group have highlighted the integrity in the work and the performance of judges but that the current system of recruiting is widely perceived as being politicised. Current appointments were susceptible to political lobbying and favouritism. We know there are reports showing no evidence of political affiliation or views in court decisions and in that respect I quote: “Political bias in judicial decision making could not be found”. The judicial appointments commission is absolutely essential. It will have 13 members with a lay chair and a lay majority. I do not understand the fears of some judges about this lay aspect but then this is a new scenario for them. I note the Law Society welcomes the lay majority while the Bar Council opposes it. Regarding the lay aspect, there is a comprehensive list regarding suitability to be a fit and a proper person and there are grounds for disqualification and ineligibility. Legal academics could make excellent judges provided their judgments are not based solely on the legal framework but that they can take other aspects into account and apply common sense also because common sense is very underrated by a number of judges.