27 October 2016

I warmly welcome this Bill and I have no hesitation in offering Labour Party support for its passage into law.


This is a sensible, constructive and balanced proposal.


In that respect, it contrasts sharply with the proposals published by then Deputy now Minister Shane Ross in 2013.


Minister Ross wanted a Judicial Appointments Council, to recommend suitably qualified candidates on merit.


And he wanted a joint committee of the Houses of the Oireachtas to consider the recommendations and then nominate judges, for appointment by the President.


But, bizarrely, he wanted our Constitution amended to stipulate that no judge or practicing lawyer could have any role at all in assessing the qualifications of the candidates or in recommending their suitability.


And he said the Constitution should also be amended to require that the Oireachtas joint committee that made these nominations had to have a permanent Opposition majority.


In other words, according to Minister Ross, if you want to have a role in selecting the judges, you should either know nothing at all about either the law or lawyers, or you should lose the general election.


This is daftness on stilts. It is so manifestly absurd that I do not understand how its author can be taken seriously, as either a political commentator or a practicing politician – let alone as a Government Minister.


Minister Ross’s gadfly pesterings clearly entertained a readership in the leafy suburbs. But he has contributed nothing serious to this debate. In Opposition he was a noisy distraction. In Government he has become an empty space.


Minister Ross’s only remaining contribution – a threat to personally veto all future judicial appointments until he gets his own way – is a disgrace. He regards the need to fill his political trophy cabinet as taking precedence over the constitutional principle of collective Cabinet government and responsibility. And he seems to think nothing about standing in the way of the Government discharging its basic constitutional functions as and when required.


The current position in the Court of Appeal is bad. And it will get worse if Minister Ross’s tantrumic posturing is given any attention.


Some 660 criminal cases were inherited from the old Court of Criminal Appeal. All cases that were ready for hearing have by now been heard. The remainder have been given a date for hearing before the end of this legal year.


But, on the civil side, the new court is overwhelmed by appeals, not just appeals against final judgments in decided cases but appeals against summary judgment, discovery orders and procedural orders of all sorts.


There are 600 new civil appeals each year, and the court has capacity to deal with about 350 of them. This leaves a shortfall of 250 cases a year.


In addition, the court inherited a backlog of cases that were transferred to it from the Supreme Court list. There are still over 700 of these cases to be heard.


So, when you add the arrears that accumulate annually to the backlog of old cases, it is clear that the new court cannot ever clear its list.


The old maxim that ‘justice delayed is justice denied’ is clearly relevant. This is not the fault of the 6 judges on the civil side of the Court of Appeal. No matter how hard they work – and they are working hard – their backlog will continue to increase.


The solution is obvious and is staring this Government in the face. It needs to appoint new judges to the Court of Appeal.


No ifs, no buts, no time for showboating or histrionics from the Minister for Transport. We in the Labour Party demand that the Government discharges its constitutional duty and deals with this accumulating crisis in the administration of justice, by making new appointments to the Court of Appeal.


Turning back to sanity and to the Bill before us, it would establish a Judicial Appointments Commission to recommend and rank three individuals for each judicial vacancy, based on merit.


That recommendations must be merit-based, and that the number of recommendations should be reduced from seven to three, are proposals which are universally accepted. They are certainly endorsed by the Judicial Appointments Review Committee, established by the judges themselves.


The Bill also proposes that, if the Government fails to nominate someone from the recommended list, it must publish a reasoned written decision for not doing so. This is stronger than the current provision and I agree with it.


The Bill would repeal Part IV of the Courts and Court Officers Act 1995, under which the Judicial Appointments Advisory Board advises the Government. That arrangement was part of an emergency deal struck between Labour and Fianna Fáil, arising from the Harry Whelehan controversy. In the circumstances in which it arose, it is perhaps not surprising that the package was not entirely thought through.


Defects in the current regime include the requirement that the Board must recommend at least seven recommendations for each vacancy, and the fact that recommendations are not listed in order of preference.


However, while the Act seems to give the Board discretion to choose as between candidates where there are more than seven, in practice the Board does not operate the Act that way. Instead of seven names being forwarded, ALL applicants who are not considered unsuitable have their names sent forward to Government. This means that in some cases dozens of names go to Government for each vacancy.


Deputy O’Callaghan’s Bill provides for a Commission with a well thought out mixture of competencies. As well as the Chief Justice and the Presidents of the Court of Appeal, High Court, Circuit Court and District Court, there would be nominees of the Citizens Information Board, the Higher Education Authority, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission, Free Legal Advice Centres Ltd, the Law Society and the Bar Council. There is also provision for gender balance on the Commission.


I am pleased to see that the Bill lists as qualities needed in a judge integrity, independence and intellectual skill and also common sense, composure, courtesy, consideration and communication skills.


And the Commission should also have regard to the importance of promoting gender and cultural diversity, and of ensuring a sufficient numbers of judges with proficiency in the Irish language.


There are one or two issues that I hope we have an opportunity to consider at committee stage. One arises from the fact that a judicial career is embarked upon after a career in practice. I fully support this. I believe it is a feature which enhances judicial independence: our judges are not ‘schooled’ before appointment.


The State cannot and should not compete against the market in terms of the remuneration it offers to the judges. But the State can compete in terms of its pension offering.


I believe the salary package for the judges should make it an attractive option for practitioners to consider well into their fifties and even early sixties. I believe the recent changes we made to that offering were a mistake, particularly since the savings made, in the overall context, were insignificant. If the committee agrees, then perhaps this Bill could become a vehicle for reversing those changes.


Second, the judges recommended that an advisory board or commission should be empowered not just to rank candidates but to designate any particular candidate as “outstanding”. They also said it should be empowered to inform the Government when it considers that there are either no or no sufficient candidates of sufficient quality. I would be interested to hear this Bill’s author on those two recommendations.


I see no need to wait any longer for a Government alternative to this Bill. We have more than just the bones of a workable solution here. With a bit more work at committee stage, we can have a new system up and running within a matter of weeks rather than months.


I therefore have no hesitation in joining with other members in commending this Bill to the Dáil.

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