Dáil debates

Wednesday, 21 February 2007

Courts and Court Officers (Amendment) Bill 2007: Second Stage (Resumed)


9:00 pm

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)

On the other hand, had I introduced a Bill this evening to the effect that the maximum number of judges of the High Court would be 100, I would have received a sceptical reception from Opposition Members. They would have asked the purpose of the Bill and whether I intended to fill the posts when I thought it appropriate, without informing them. This cuts both ways. I am unsure whether I would get much traction in this House were I to propose the creation of a series of vacancies that I had no intention of filling and which my successors and I would fill when we thought it wise to so do, without being responsible or accountable to the House as to why we might decide to fill them at any given time. Such points go on the other side of the scales. It is inconvenient to be obliged to come before the House. The Deputy will appreciate that it would be much more convenient for me to simply sign a statutory instrument or whatever and get on with it. However, the constitutional order is there.

Imagine if I had a big tranche of unappointed judged sitting there waiting for me. Some would suggest that I had created these vacancies and held them over the present Judiciary in terrorem. In other words, I could decide to appoint another ten judges and send them down to the Four Courts if I did not like the manner in which the Judiciary was dealing with cases one afternoon. People would claim that this constituted dictatorial executive power. Consequently, it is in the interests of this House to hold the reins. I would also make the same point were I sitting on the Opposition benches.

I dealt with sentencing guidelines in my opening speech and the Courts Service is working towards their introduction. Deputy Jim O'Keeffe asked whether this House should set out tariffs and the like. While some jurisdictions have so done, there has been a tradition in Ireland since independence that in general, the Judiciary should not have minimum sentences prescribed to it. In my speech to which Deputy Cuffe referred, I made the point that it is better to leave it to the Judiciary at large, save in exceptional circumstances. I dealt with the section 15A drug dealing issue in that speech as an exception to the general rule that it is not the business of the Legislature to direct minimum standards of sentencing to the Judiciary.

In any event, the power to suspend sentences more or less makes nonsense of minimum standards. For the sake of argument, assume the House set the minimum standard rate for a burglary at three years. I am unsure whether that would be a good idea. However, a judge could then examine the circumstances before him, in which a young man intended to go straight, had a girlfriend, intended to marry and all the rest and could decide to give him a chance by suspending the sentence. What does it then mean if such an individual received a three year suspended sentence in such circumstances?

The power of this House to guide the Judiciary in respect of sentencing should be very sparingly used. It should be directed towards those cases in which there is a clear public perception that it is necessary to exercise such power. This is as far as I would put it. I made this point at the lecture from which Deputy Cuffe quoted. I stated that the general rule should be that it should be left to the judges to decide and that the House should only do otherwise in exceptional cases.

Although two Members suggested I apologised to the Judiciary, this was not the case. I was restating what has always been my position, namely, that I have the greatest of respect for judges. I have said it in their presence and in their absence.


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