Judicial Appointments and Threatened Industrial Action by An Garda Síochána: Statements Wednesday, 12 October 2016

Senator Ivana Bacik: I welcome the Tánaiste and Minister for Justice and Equality to the House. I also welcome the opportunity to have this debate. A consensus has been breaking out across the House on the need for reform of judicial appointments, as other colleagues have said. As the Minister said, this is very much an ongoing issue about which there has been extensive consultation. At the justice committee last year, at my instigation we conducted a hearing on the subject of judicial appointments. I hope we forwarded the transcript of that hearing to the Tánaiste and her Department to inform the consultation process and the discussion around reform.

I believe we all agree with the Tánaiste's comment that any system of judicial appointment must be open, transparent and accountable and must promote diversity. In the debate around the nature of the reform, I would make three points about how reform should be carried out. The first point is to emphasise the critical issue that reform should not be long delayed, or at least that the process should not delay the much-needed appointments of judges. The Tánaiste referred to the vacancies that currently exist in the courts, one vacancy in the Supreme Court, two in the Circuit Court and one in the District Court. One of the complaints most frequently made to me by stakeholders or clients, people who come into contact with the legal system, is the delay in judgments. I know of some appalling delays in the handing down of judgments; there are currently outstanding judgements in particular cases. It is a matter of real concern that we do not see a delay in the appointment of judges leading to delays in the judicial process for individual litigants and for people appearing before the courts. That is one concern.

A second issue regarding reform is to acknowledge the current model, as pointed out by Dr. Jennifer Carroll MacNeill in her extensive research on judicial selection procedures. She pointed out that the current model, the Judicial Appointments Advisory Board, JAAB, is not using the powers available to it to the extent that was originally anticipated when it was established in 1995. It has taken a very narrow view of its own powers, particularly since the early 2000s. Dr. Carroll MacNeill has clearly documented this and this is well known in the public domain as Dr. Elaine Byrne and others have written about this. The JAAB could, for example, put forward for nomination to the Minister only seven names under the legislation. Senator Boyhan pointed out that it does not have power to rank, but to put forward only seven names would itself send forward a message to any Minister. Instead we are seeing, routinely, well over that number being put forward to Ministers and that is documented in that book. The power of interviewing or of putting forward candidates is not used and has never been used by the board. Therefore, there are some issues that need to be examined. If legislation seeks to reform, the legislation must be implemented and any new body or a reformed JAAB must be properly resourced in order to be able to implement powers such as the power to interview. Certainly those powers would circumscribe the process of appointments more. Another point that was made is the need to extend the power to promotion of judges, where existing judges seek promotion and that power clearly currently is not there. There are some issues with reforms but the failure to implement or use powers already existing in legislation must also be noted.

We need to guard against any sort of affinity bias. I know the judges' submission to the Minister called for more of a role for the Judiciary. There is an issue where members of the Judiciary are self-appointing but that becomes hugely problematic. I believe all Members would agree that in any reformed judicial appointments body, there should be less, and not more, of a role for serving judges. This affinity bias, where people tend to promote or appoint people who are like them, tends to stifle diversity in appointments.

We should be critical of problems and flaws within the system but we should also note that there are some ways in which our judicial appointments process has been very effective, for example, in having an increased gender diversity in the Judiciary. In 2003 we published a study on gender discrimination in the legal professions in Ireland. At that point there were low numbers of women in the Judiciary at all levels. That position has significantly improved since 2003 and that is to be welcomed. We are seeing a more representative Judiciary, at least in terms of gender, and that is to be welcomed. Some elements are working well in the appointment process and that also should not be overlooked in any debate on reform. Ruadhán Mac Cormaic's recent book on the Supreme Court makes that point, namely, that judicial independence has been well established in this State and that whatever the flaws in the procedure, we have been well served generally by our Judiciary. I am aware we will have a debate on judicial independence in the House next week, at the behest of Senators Boyhan and McDowell, and we will be able to say more about that.

Turning to the issue of the proposed strike by gardaí, this is the second cause of crisis in policing at present. We read in recent weeks the revelations about the treatment of whistleblowers in the force and we await the report from the retired High Court Judge, Mr. Justice Iarfhlaith O'Neill, on that issue. Clearly, the proposed strike is very much a second cause of crisis in which rank-and-file gardaí are planning to take industrial action in November. Other colleagues have talked extensively about the issue of Garda pay, which is one of the issues that has prompted this 95% vote in favour of industrial action. I want to focus on another issue, that of access to State negotiations, in particular to national negotiations such as those on the Haddington Road and Croke Park agreements. The issue of gardaí and the right to negotiate is not new. While section 18 of the Garda Síochána Act 2005 prohibits members of An Garda Síochána from joining trade unions, they can join associations but their representative associations are not privy to the national negotiations on pay and conditions. We know that in 2013 the European Committee of Social Rights issued a decision that Ireland was in breach of its international obligations under the European Social Charter, among other things, because of the prohibition on the representative associations from joining national employee organisations such as Irish Congress of Trade Unions, ICTU. I draw attention to the Industrial Relations (Members of the Garda Síochána and the Defence Forces) Bill 2015, introduced in the Dáil in 2015 by my then Labour Party colleague, Michael McNamara, which, among other things, would have provided for the right of Garda representative bodies to join umbrella groups like ICTU. Mr. McNamara pointed out that provisions like ours that were in place in France had resulted in judgments against the French Government by the European Court of Human Rights. He also pointed out the need for us to comply with the European Social Charter. This year, the Tánaiste indicated she would seek a solution to the issues concerning the charter and that the findings of the European committee had been referred for consideration as part of an independent review under the Haddington Road agreement. Has that review been concluded or will the Tánaiste be in a position to accept a Bill like Mr. McNamara’s, which was not accepted by the Government at the time, given the context of a speech in which she stated there was an ongoing review of these issues? This is a significant bone of contention because it leads directly into issues of low pay, conditions of work, sick leave, hours of work and so on in An Garda Síochána that have given rise to the 95% vote in favour of strike action. I ask that we see our way to resolving this issue, being mindful of the finding against us at European level and the fact that Private Members' legislation has been introduced that proposes reasonable propositions in terms of the rights of gardaí.

It was anomalous that, in the Haddington Road agreement negotiations, representatives of the Garda and the Defence Forces were barred from participating while representatives of prison officers and firefighters rightly participated.