Judicial Appt Bill has clearly been rushed to accommodate the crusade Deputy Ross has embarked on
29 June 2017
I welcome the opportunity to contribute to the debate on this Bill. On 27 October last I contributed to the debate on Deputy O'Callaghan's judicial appointments Bill, which was a significant and welcome improvement on the absurdity of Deputy Ross's proposals when he introduced a Bill in 2014.
I will relay some of the things he postulated as the way forward.
I congratulate my midlands colleague, Deputy Charles Flanagan, on his elevation to the position in justice. He was a very fine spokesman on justice for his party a number of years ago and he has long experience of practice as a solicitor. He has practiced in the midlands in all of the courts from the District to the Circuit and High Courts. I am sure he has appeared in the Supreme Court to give instructions in some cases. He knows that irrespective of who appoints a judge, he or she takes the oath of office extremely seriously once on the bench. No matter who one appears before, whatever views they might have had, they adhere to the oath of office and dispense justice fairly, impartially, objectively and in accordance with their oath and the law of the land which prevails and dictates the course of the case they are hearing. Political persuasions are cast aside. This is now saying that anyone who has any contact with politics or politicians is contaminated. It is incredible that someone would have to live in a cocoon well away from being seen talking to anyone of any political persuasion or none. "Cronyism" is a loose term of banter which has now taken on a particular meaning and is being used widely to disparage people. That is what it is being used for. If one has any degree of friendship at all, one is a crony. I look on that as being a friend of someone from whom one might have sought advice in the past and from whom one received dispassionate and objective advice. That is now elevating itself to the level of cronyism, which is completely objectionable. I have appeared for the last 27 years in all the courts in the land and I am sure I never knew nor cared who appointed the Judiciary. I always got a fair hearing on behalf of the client as did my opponent.
Judges make decisions and they are very experienced themselves having practices across the courts of this land. Very often, people who apply for the bench are at the top of their profession whether it is as a solicitor or barrister. They will have spent a considerable period gaining experience, competence and intellectual ability. Going on the bench often results for them in a significant reduction in remuneration. When a person applies for a position, he or she does so on a confidential basis. I can see this becoming so wide group, that we cannot guarantee confidentiality. All it takes is one. One could tie it up like the JAAB by making it a criminal offence to give out information. Be that as it may, there was always speculation. I cannot say anyone ever breached the Act, but there was always speculation as to whether Willie Penrose BL or whoever would become a judge. That is fair. It may be either informed or idle speculation but people who make an application do so in confidence. They want to ensure that if they are not successful, it is not publicised. It is a significant rebuff to people. As the Minister will know, it is a big decision to become a member of the Judiciary. As such, I reject this idea of cronyism.
Deputy O'Callaghan's judicial appointments Bill always struck me as sensible, constructive and balanced. It contrasted sharply with the proposals published by Deputy Ross, who is now a Minister, in 2013. He wanted a judicial appointments council to recommend suitably qualified candidates on merit and he wanted a joint committee of the Oireachtas to consider the recommendations and then nominate judges for appointment by the President. Most bizarrely, he wanted the Constitution amended to stipulate that no judge or practising lawyer could have no role in the assessment of the qualifications of the candidates or in recommending their suitability. That was the most harebrained idea. I note to the Minister, Deputy Flanagan, who is very experienced, that it would knock one for six. It knocked us all for six, which is why I castigated it. That was daftness on stilts. It was so manifestly absurd that I could not understand how its author could be taken seriously as either a political commentator or practising politician, let alone as a Minister. It is one thing to come out with gadfly blustering, which is clearly entertaining for a readership in the leafy suburbs, but it does not contribute anything serious to the debate on this issue.
In opposition, Deputy Ross was a noisy distraction. In government, he has become an empty space. If he spent as much time worrying about his own Department as he does about another Minister's, we would be all better off. I see Deputy Troy in the House who is an Opposition spokesman in the transport area. We would prefer if the Minister ensured there were trains with adequate capacity, speed, comfort and frequency leaving our major towns of Longford and Mullingar for the east. We would rather there were enough jobs to keep people in their own areas, but they need to go eastwards in the morning and to come home in the evening. The Minister should be ensuring there are buses on the roads. He should be ensuring the station at Thomastown reopens. If he concentrated on all of those issues, he would be kept extremely busy and would not be distracted.
This Bill has clearly been rushed to accommodate the crusade Deputy Ross has embarked on. He spelled out his desire for reform a number of years ago and brought forward a judicial Bill in 2013 which can only be described as a "whopper". It sought to eliminate at a stroke any input from any member of the Judiciary. His judicial appointments council would have ensured that no judge, member of the Bar Council or Law Society, or anyone of that ilk, to use his term, had an input. In Deputy Ross's view, they are all insiders. He has exhibited an unusual distaste for anybody of any professionalism or expertise. I am not much into getting expert input myself in that as politicians, we should do our own work without relying on commissions and experts. Surely, however, members of the Judiciary, in particular the Chief Justice and Presidents of the various courts, have invaluable insights to impart and contribute to the assessment of applicants by a judicial council. Potential applicants for judicial vacancies will clearly have practiced in these courts on numerous occasions, whether as solicitors or barristers, both of which professions have full rights of audience and advocacy with some excellent solicitors doing so. They are in a prime position to give a view as to the suitability of an applicant's abilities, competence, intellectual capacity and, the most important attribute of all, temperament. Temperament is critical to an appointment. On appointment to the bench, one severs the relationships one enjoyed prior to appointment. It can be a lonely place from that perspective.
Deputy Ross could have proposed something I know Deputy Flanagan would like to see. There is no doubt that the JAAB system requires an overhaul. There must be improvements, changes and enhancements, all of which we would welcome. The big thing to do, however, would be to create a judicial council.
It is no use having argy-bargy between one side and the other. That is what we want to get rid of. We do not want that. We want to have the separation of powers clearly demarcated in the Constitution. We want to adhere to that principle. We could get the best of all worlds if we work hard enough in committee and achieve what we all want to achieve, namely, reformation and modernisation of the appointment process for members of the bench.