Barry Ward (Fine Gael) | Oireachtas source

I welcome both our witnesses and acknowledge the work they do to help us in our deliberations. I wish to raise a couple of issues, specifically with regard to what Mr. Herrick said about minimising Government discretion.

This is not a surprise. The ICCL has been consistent on that line. Does Mr. Herrick accept that there is a democratic requirement for an element of Government discretion? Would he acknowledge that is an important part of the judicial appointments process? Remarks have been made about bad habits of the past and things like that. There is substantial evidence to support the notion that we have an excellent Judiciary that is functional, that abides by the rules of law and that delivers fairness, on the whole. I am not saying that every judge is wonderful. As a practitioner, I can say they are not. Overall, however, we have a corpus of judges who are good, reliable and fair.

Mr. Herrick spoke about giving reasons for deviation from the recommendations of the commission. In general, I think there is an absolute basis for that but, in practice, there is a real difficulty. Ranking candidates is all very well but asking the Government to publicly explain why it has chosen one candidate over another will create substantial problems from the point of view, in particular, of the unsuccessful candidate because it results in an official declaration of what the Government sees as the inadequacy of a candidate which could be damaging to that person professionally. In the whole process of the appointment of judges, the confidentiality of applicants is paramount because many practitioners who are qualified and who would make excellent judges would never apply if they thought applications, particularly unsuccessful applications, were going to be made public because it would massively damage them within their profession and in the context of their ability to continue in their profession.

Deputy Martin Kenny referred to promotion from lower to higher courts and Mr. Condon has spoken about merit as a criterion. All of that makes sense but I wonder is that not a tremendously subjective criterion? There are many fine legal practitioners, solicitors and barristers who turn out not to be very good judges. While an element of knowledge and experience in the litigation process is extremely important, I wonder can any of our guests tell us what constitutes the definitive criteria for what makes a good judge? That is a difficult thing on which to settle. In the past, there has always been a practice not to promote judges from the District Court to the Circuit Court or from the Circuit Court to the High Court because there was a danger that it would incentivise a particular judge to behave in a certain way. If a judge is focused on promotion rather than doing the right thing or rendering the right decision, it potentially compromises that individual in his or her ability to do the job as opposed to climbing the ladder. I wonder if our guests have anything to say about that.