Dr. David Kenny:

It is a very interesting question. The judges' report from January and the GRECO report have interesting recommendations to make. As Dr. Carroll MacNeill mentioned, the merit principle is something that was pushed by the judges in their report in January. As many of us have mentioned, one of the problems with the vision of merit outlined is that diversity is outside it. It would be important rather than to simply put the word "merit" in a statute, which is breathtakingly vague, one needs to say what merit is and what one is supposed to be looking for. I disagree with Dr. Carroll MacNeill to some extent. If what was provided for in the 1995 Act was a broad power to set different standards, it was too broad. Given the importance of legislation and elected representatives having a role in saying what we think a good judge is, those criteria should be more specific to provide for a legitimate, popular input into the criteria that are important when assessing judges. Rather than to include a simple line about merit, I would like to see a vision of merit articulated and debated by our popular representatives.

Looking at the composition of the appointments board is very important and something Dr. Cahillane mentioned earlier. Neither report really looks at that and whether we should have more lay members and fewer judges rather than to let judges appoint themselves, which creates problems. Promotions and the appointments of the Chief Justice and Presidents of the other courts are currently handled outside the advisory board process and they should potentially be brought inside whatever system we implement. That would be worthwhile.

I agree with Dr. Carroll MacNeill's assessment that what we need to look at is not cutting politics out - that is never going to be a good idea - but at the roles in which politics is problematic and whether there is a way to maintain strong political involvement while removing concerns about political patronage. That is the chief concern at the moment. This is very controversial among our sitting judges in particular, who would not be fans of this. Hearings in this committee would be a good idea and direct popular discussion between elected representatives and judicial candidates could be used to gauge temperament, character and qualifications. That would be very useful but not a popular suggestion among our current judges. They feel it would make the system too political. However, it is always political and the question is whether one wants to bring out the politics that is always at play and have it in an open forum with elected representatives engaged in the discussion or leave in some deeper process we do not fully understand. I favour the transparent version where there is some sort of direct involvement.