Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael) | Oireachtas source

I will now take my opportunity to contribute. I have consistently disagreed with Dr. Hickey on that point, as he knows. I have also consistently disagreed on the issue of ranking. It is interesting that a tension between who decides and the level of political discretion is emerging in this conversation. Also in this conversation, there is a leaning towards pulling it away from politics because politics is bad, it does not have a role and it could not be trusted to perform that role if it had it. The proposal seems to be to hand responsibility over almost entirely to a judicially dominated model, which we know from international experience can contribute to judicial self-replication.

Michael Kirby, the great High Court judge and the first openly gay judge in Australia, said he would never have been appointed by his peers because they were too conservative. It took bravery, forward thinking or just being ahead of politics to enable his appointment.

This tension flares up every few years in different jurisdictions in the context of what the right balance is and proposals to take politics out of it. However, the discretion in politics has engendered diversity and a measure of accountability. As Dr. Hickey knows, they were not recommending seven names. They were recommending considerably more names than that until about 2014 or 2015 when it was reduced to seven, as the legislation had prescribed and, indeed, they had the power to reduce fewer or more than that. It is very interesting to hear this tension.

It is not a reduction from seven to five. Typically, there would be approximately 150 applications for the District Court. The reduction in discretion is from 150 to five, which is a very considerable reduction in discretion. Therefore, it is not from seven to five; it is from 150 to five in real terms. Dr. Hickey has made the point about the unconstitutionality of ranking. Many people from various universities have disagreed with him on that point. I do not take it as a given in any sense. It has been disagreed with for many years that it is an unconstitutional restriction. The reason for all that is that the indirect involvement of politics provides a cover of legitimacy for the appointment of judges who have no other connection with the electorate and no other connection with the people, whom their decisions directly affect in the very core of their lives.

Dr. Kenny, Dr. Cahillane and I had this conversation in 2016 and we will have it again. It would always be about this tension between politics and judicial self-replication. It is interesting to note the very strong comments of those from the professions who know the practitioners who are likely to become judges.