Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I thank our guests for their contributions, which I found very interesting. I have one specific question to put to Mr. Condon regarding the scheme of the proposed Bill, which has been worrying me since the last occasions we discussed the general scheme. It concerns head 9, which deals with the composition of the commission and which effectively states that there will be nine members of the commission. Subhead (1)(b) of head 9 contains the phrase "a Court President being one of the President of the Court of Appeal, the President of the High Court, the President of the Circuit court or the President of the District Court, to be determined in accordance with subhead (2)". Subhead (2) states "The member referred to in subhead (1)(b) shall, for the purpose of the determination of a recommendation by the Commission in respect of a judicial vacancy or vacancies in a court, [be] the President of that Court." What we have there is a rotating membership to be shared among the presidents of courts. One problem with this is that the commission has business other than simply considering candidates. It has to make annual reports, lay down procedures, set out criteria of this various kinds and adopt statements and the like. I have a major problem with saying that, for instance, the position will be occupied on a kind of rotating basis depending on the recommendatory business that is going on when there is other day-to-day business which has to be carried out by the commission, such as preparing reports for Government or Oireachtas committees, handling its relationship with the chief executive and making decisions on finance, recruitment, etc.. It is not clear how that particular head works if, for example, we cannot say at any one point that Mr. Justice Michael McDowell either is or is not a member of the commission for the purposes of all those ancillary matters. That is a point I wanted to draw to Mr. Condon's attention. More work needs to be done to remedy the position in this regard. I ask Mr. Condon to come back to me on that point.

I echo what Senator Ward said. When in government, one of the aspects of appointing members of the Judiciary is that it is not always based simply on the individual merits of an individual. For example, one might decide that the Supreme Court needs to be made more liberal or more conservative, more pro-European or less pro-European, more pro-personal injuries awards being high or pro-personal injuries awards being low or whatever. In the context of issues on that nature, a diversity of approach and philosophy is something which a properly appointing Government may consider to be a hugely important issue. If there are three or four people in a row who all have the same view and the Government is of the view that the court is beginning to go in a particular direction and it is not happy with that, it is its democratic function to correct the position by making its own decisions. We have a simplistic view of merit that one person is better than another on the basis of merit, but we also must have not simply the crude rationale of, say, having people who are representative of the community demographically or whatever else. In addition, the Government has a very clear duty to ensure that the Supreme Court has a philosophical balance to it which the Government would want to ensure is maintained.

Mr. Condon and Mr. Herrick might grapple with another point I wish to raise. The Attorney General is a constitutional officer. He or she is the adviser to the Government on all matters of law.

It is quite possible for an Attorney General to look at the slate of candidates putting themselves forward for selection and come to the view that a judge-dominated commission is knocking on the head some kinds of people that maybe should have a look in. One of the problems with the 2017 legislation was there was a bit of intellectual confusion as to whether the Government should know who was applying for jobs. There was a huge problem with this issue. The then Minister, Deputy Flanagan, did his best to rescue, from the extremes of Shane Ross's approach to the matter, some degree of common sense that the Government should know, by one means or another, what kind of people are being rejected. If liberals are being rejected by the Judiciary on a consistent basis, somebody should be in a position to tell the Government that it seems to be replicating itself and that "judgeitis" has descended on the process. Somebody should be in a position to report to the Government what kind of people are failing to get onto the shortlist.

The Attorney General has an important role of being the canary in the coalmine and being in a position to tell the Government, for example, that there are five really good solicitors or barristers who are constantly being turned down or that others are being preferred, and that he or she is worried about it. The only way the Cabinet will be made aware of this is if the Attorney General has some sight of what is happening at the commission. There is some merit to the Attorney General having this role and I throw that out there for consideration.

There is another point that arose in the context of the 2017 legislation. Very frequently, when it is decided to appoint the President of the Court of Appeal to the Supreme Court or something of that nature, there are consequential knock-on vacancies in the Court of Appeal and the High Court. One of the problems pointed out to the Minister at the time, Deputy Flanagan, was that there was a very clunky process whereby where a vacancy arises in this way, the entire process has to be started again to go hunting for somebody to fill that vacancy. What happened when I was around was that three such appointments were made on the same day in a promotional appointment chain. This is no longer possible because we have to start again and go back to each layer of the cake and conduct interviews for vacancies that arise. There has to be some flexibility when a vacancy is created. I really believe there should be a standing invitation to judges to state whether they want to be, for example, on the Court of Appeal. Those that want to be should be considered as candidates semi-permanently and, likewise, other solicitors and barristers.

I am unhappy with the idea that the legal profession, which often sees an awful lot more of their colleagues than judges do and see how they really think and hear what they really say over cups of coffee, or over a drink for that matter, and how their brains actually function, very frequently are in a very good position to advise whatever commission we have that Joe or Josephine Bloggs is a bit ropey. It is a mistake, therefore, to knock out some input from the people who see these colleagues on a daily basis. The people who have been receiving rude letters from their solicitor or barrister colleagues for 20 years can say that a person is a bit of a header. A judge might not realise this but it is a very valuable input. Having served on the Judicial Appointments Advisory Board, I know that the input from members of the Law Society and the Bar Council was sometimes very important in sounding a warning bell about somebody who looked brilliant on paper to the effect that there was a problem and that the individual in question was not as good as he or she sounded or looked. There are discretionary issues such as this.

I throw these ideas out for consideration. I am particularly worried about head 9. I cannot understand how the council can have only nine members and that four of them will be rotating all the time. If the council is supposed to have a continuous corporate existence and is to make decisions about annual reports, hiring extra staff, accepting the recommendations of the chief executive and all the rest of it, who will be a member on a day-to-day basis of the commission?