Judicial Appointments Commission Bill 2022: Report Stage (Resumed)
Seanad Éireann — 2023-05-17
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Barry Ward (FG), Industrial and Commercial Panel

I agree with some of what Senator McDowell said. I am blue in the face making one of the points he made, which is to acknowledge that we have a functioning Judiciary that has served the people of this country exceptionally well and also served our judicial and courts system very well. The rule of law is applied consistently by our judges. I also agree with what the Senator said about the lives of judges before they become judges and how that should not have and does not have an impact on their decision-making capacity as judges. Without thinking of any person in particular, there have been individuals who were formerly involved in politics who went on to become judges and were very good judges who, objectively, have done an excellent job. By the same token, it should never be the case that because somebody was previously politically active, he or she is therefore debarred from judicial office or any other of a list of offices. That is a danger that may arise in the context of this Bill.
I also agree with what Senator McDowell said about the comparisons with Europe. I am a committed Europhile. We have benefited enormously from our membership of the European Union, including from the work that has been done by the Council of Europe and is being done in Reykjavik this week. We must start with recognising that the judicial and legal systems that exist in almost every other country in Europe are dramatically different from what we have here. That civil system operating under the Napoleonic Code generates judges of a very different formation, training, history, culture and all the rest from the ones who exist in the common law system, under which the rule of law and application of precedent are central. Senator McDowell spoke about the reference in the Long Title of the Bill to the recommendation of the Council of Europe's Group of States against Corruption, GRECO, and the recommendation of the Committee of Ministers on judges' independence, efficiency and responsibilities. That reference probably is misplaced. The problem I have with it is that, as has been noted, it suggests we needed somehow to address this issue. I am happy to say there has never been a suggestion that there was corruption in the appointment of judges in the State. In the history of the State, it is almost impossible to point to judicial misconduct in connection with any suggestion of corruption in the manner of appointment. We have a tremendously proud tradition we can stand over in this regard. There is a maxim that if something is not broken, it should not be fixed. That certainly could be applied to judicial appointments in this jurisdiction. I said that on Committee Stage and it has been consistently reflected in the amendments I have put down.
Amendments Nos. 12 a to 12 c , inclusive, address provisions within the Bill that are important. There are two discrete issues to consider in regard to these proposals. The first is the issue raised by the amendments and the second is the issue that arises in amendment No. 12 d , which is not coupled with these amendments and will be discussed separately. I agree with the Senator on one issue and disagree with him on the other. In regard to this group of amendments, I disagree with him. One of the things he has railed against in the context of this Bill is the removal of political involvement in judicial appointments. We agreed on Committee Stage that there is an important role to be played by democracy, in the form of the Executive, in the appointment of judges in this country. The Judiciary is a branch of government. Once appointed, judges are not quite immune from removal but it does not really happen and, thankfully, it never really needs to happen. The point is that they are appointed for a long period but they still form part of government in this State insofar as the judges of the superior courts are tasked with and given responsibility for interpreting legislation, the Constitution and other statutory instruments that govern this country. They have a hugely important role. I can confidently say they discharge that role with ethical standards, the application of the rule of law and without fear or favour.
It is not referred to in this Bill, because it is a constitutional matter, but I recently attended the swearing in of judges in the Supreme Court. The oath that is provided for in the Constitution is grossly outdated in its undertaking to show no "ill-will towards any man". It also has a strong focus on being guided and sustained by God. I wonder about the applicability of that in a modern context. It is an issue Senator McDowell and I have discussed. It is something we should change and there is an opportunity to do so this coming November in the context of the referendum on women's place in the home. We should consider adding a proposal to change the oath judges must take, including using gender-neutral language. I am not able constitutionally to make such a move from the Seanad but I hope the Government will take it into account. The oath sworn by all judges who take office in Ireland is taken seriously. It requires them to apply the law without fear or favour and without ill will towards any person.
Unfortunately, I am at variance with the Bill in that I fully believe in the importance of a political role, by which I mean a democratic role, in the appointment of judges. To take that away, which this Bill proposes to do in many respects, is to take away the democratic element of the appointment of the Judiciary. That is problematic and it is not necessary. As we have discussed, the old system has delivered judges of a very high calibre. Where these amendments contradict that notion is in the fact, as I noted when Senator McDowell was introducing them, that they will remove that political discretion. The point he makes in regard to amendment No. 12 d is valid and I hope the Minister will give it consideration. He envisages a scenario, which is possible but I hope unlikely, in which the appointment of lay members is prolonged. The Senator referred to those appointees as so-called independent members. There is no suggestion in the Bill that they must be independent. The prolongation of their terms without democratic accountability is potentially an issue.
Amendments Nos. 12 a to 12 c , inclusive, seek to remove what is currently a ministerial discretion to appoint people who get through the Public Appointments Service, PAS, system. Instead, PAS is to be given the job of ranking candidates and giving a list of people it recommends to be appointed. It would make recommendations for appointment rather than just assessing for suitability for appointment. There are two problems with that. I have already gone into the first, which is the lack of democratic accountability with such a system. The second problem is the notion of PAS making the decisions on ranking people.
I understand where Senator McDowell is coming from when he says PAS will have interviewed the candidates and gone through a process the Minister has not gone through. However, this proposal is inconsistent with some of the pronouncements he has made elsewhere in the process of dealing with this Bill. He has suggested, and I agree with him, that we should retain the democratic element of ministerial discretion to the greatest extent possible. However, he has put down amendments that seem contradictory to that notion. Instead of vesting power in this instance in the democratically elected Government or Minister and, by extension, the Oireachtas, he is putting it into the hands of the Civil Service. The PAS is independent of the Government and apolitical, as it should be. There certainly is a role for it but there is always the possibility it will not select the best candidate because that candidate does not tick the boxes the Civil Service form requires him or her to tick. I say that without any criticism of the Civil Service, which has served this country well. There is a danger of constantly trying to force things into a metric that can be measured by a form. The reality is that this proposal would take us to a situation whereby judicial appointees are selected from those who fulfil a different standard from the one that has been applied until now.
It is one they have been assessed on and the system has worked but now we are saying we will put them into a system whereby they have to fulfil certain criteria, not one decided by elected representatives, the Executive or democrats but by civil servants and functionaries. I say that without criticism of civil servants but their role is different from that of those who make executive decisions. I cannot agree with amendments Nos. 12 a , 12 b and 12 c because, while it is arguably for good reason, they take away that ministerial discretion. The stronger point that is made is in amendment No. 12 d , which we will come to.
The second point Senator McDowell made was on the possibility of the application of section 14(4) and how there can be a continuation of a member's period for up to six years without Oireachtas discretion. There is merit in that amendment and we will come to it in due course.
There is another issue that has not been addressed and I put down amendments on Committee Stage on the make-up of the commission. The commission will have nine members but only eight voting members. The reality is that the way section 9, which establishes the make-up of the commission, is constructed creates a juxtaposition, and arguably an opposition, between four judicial members and four lay members, be they political appointees or otherwise. The danger is that those two may become groups, which I hope would not happen. In putting people onto a commission like this, both judicial and non-judicial, one hopes they will work for the best possible result but this section arguably creates an opposition between those two groups which will result in a stalemate. Nobody has explained to us how it will work if the vote is four against four. I put down an amendment that the Chief Justice should have the casting vote, which I saw as a reasonable solution to what was involved. Section 9(3) removes the vote of the Attorney General, so one ends up with eight voting members of the commission and if a vote is tied, there is no solution for how they go about doing their business. Notwithstanding that in most of these matters business is done much more by consensus than by votes, there is no way of ensuring that scenario will not arise. One way to prevent it would be to have an uneven distribution of votes such that, however people voted, there would have to be a clear vote on one side or the other, which is possibly unfortunate.
I refer to what Senator McDowell said about those appointments of laypersons. He raised the issue of whether the Oireachtas would be told, or not, from whom the selection had been made. We know clearly we will not be told from whom the selection will be made as we have never been told before about any of the other appointments that come through this House by resolution.
Senator McDowell also said it would be up to the Executive to explain to the Oireachtas why these particular people had been chosen but we also know from experience that this does not happen. What happens when resolutions come before this House is that a list of names is given and it comes before the House for decision. There is democratic accountability in that. There is no explanation or justification given, and I am not sure there should be either because I rely on discretion being exercised by a Minister and a member of the Executive and I assume due diligence has been exercised. Unless there are some genuine reasons a person whose name is on the resolution is objectionable, I do not have a difficulty with it being done that way. There is also an opportunity for me to make inquiries if I want to do so because the resolution is given to us in advance and we know, before we have to vote on it, who the individuals in question are. There is still a democratic element in that and the point Senator McDowell makes in No. 12 d is one that is worth considering because section 14(4) arguably creates the potential difficulty of removing this accountability to the Oireachtas, probably unnecessarily. Although I do not have a difficulty with the power of the Minister to reappoint someone, there is a streamlining and efficiency to that which makes a lot of sense. It is worthy of looking at the manner in which the appointment is made.
I cannot agree with Senator McDowell on these amendments. They further fetter the ministerial discretion that is important. They also further put into the hands of functionaries the decision-making function that should be exercised by members of the Executive and not members of the Civil Service. Successive Governments have far too often abdicated that responsibility and conceded the point, even though there is no basis for doing so, that there is somehow a need to do this in order to ensure transparency, efficiency, an absence of corruption, etc., when there is no suggestion that there is any corruption. If it is not broke, do not fix it. There is no need to make that change because there is no suggestion that we do not have a functional and effective Judiciary.
I support the notion of having greater accountability through appointment by a Minister who has been duly elected, is democratically accountable and can be taken out of office if he or she makes a decision incorrectly but that cannot be done, by the same token, to the Public Appointments Service, PAS. It is not accountable to the people in the same way a Minister is and it is not accountable to the polity of Ireland in the same way an elected person is. That is why I would much rather see greater power in this regard vested in accountable people being democratically elected people than I would in civil servants, who do an excellent job but who have a particular function. That is why I cannot support amendments Nos. 12 a , 12 b and 12 c .

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2023-05-17/debate/main
Retrieved: 2026-08-14T04:51:54+00:00
Sitting date: 2023-05-17