Michael McDowell (Independent) | Oireachtas source

The Programme for a Partnership Government, we are told, contains the statement:

We will reform the judicial appointments process to ensure it is transparent, fair and credible. We will reduce the number of suitable candidates proposed by the Judicial Appointments Commission for each vacancy to the lowest number advised as constitutionally and legally permissible by the Attorney General, but in any event not more than three candidates to be shortlisted by the Judicial Appointments Commission for any vacancy.

Also, the scheme for the Bill recently published by the Government says:

It is a requirement that Government is in a position to retain a substantive choice as part of the exercise of the executive discretion under Article 35 of the Constitution. The choice that Government must have given its role under the Constitution is satisfied by the provision whereby the Commission recommends three names.

The Constitution gives to the Government, and the Government alone, the right to select, from eligible persons, people who are to be appointed to the Judiciary. That is simple. The Government has the right, for instance, among High Court judges at the moment or Court of Appeal judges, to appoint any of them to the Supreme Court as it considers right. That right cannot be taken away from the Government. It cannot be subject to a process, which seems on the face of it, to deprive the Government of that discretion. There is nothing in law that this House or the other House can do. No Bill or Act can change the situation that if one is eligible to be appointed to the Supreme Court, as a matter of law, the Government is entitled to make the appointment. There is a huge attempt being made to suggest that somehow, by changing the Judicial Appointments Advisory Board, which was to give advice to the Government on the suitability of candidates to a judicial appointments commission with a small shortlist, the Government will be constrained to appoint from the shortlist. It will not and it cannot be.

The other great illusion that has been put forward to the people of Ireland is that it is somehow wrong for the Attorney General, the Minister for justice or the Taoiseach of the day to say, for instance, to an eminent solicitor or barrister, "We believe you should be appointed to the Bench." The procedure has been generally that those people who apply to the Judicial Appointments Advisory Board, if they are approved by the board, are subsequently appointed. On occasion it has happened that people have been appointed without any involvement of the Judicial Appointments Advisory Board, from being in the position of a lay practitioner, to the superior courts. That is the first thing I wanted to say.The second thing that I wanted to say relates to the Minister, Deputy Ross, who has been championing the cause of a lay majority on a judicial appointments advisory commission. According to The Irish Timesof Monday, 21 November 2016, "Mr Ross said the programme for Government sets out a commitment to reform the way judges are selected which would take the process out of the hands of politicians." That is untrue and constitutionally infirm and impermissible. I will not use a term that would involve going further than that, but I will say it is untrue as a proposition of law.

I remind the House that we are talking about a common law system and a common law Judiciary. Ireland is the only state in the common law world in which a government has ever proposed having a lay majority on an advisory board. It is of some significance that such a change has not been proposed in America or anywhere else with a common law system. Under the proposed new scheme, which has not applied heretofore, a judge of the High Court who is willing to become a Supreme Court judge or a Court of Appeal judge is supposed to submit to being interviewed by seven lay people who, in turn, are supposed to look at everybody else and select three people, thereby possibly excluding that judge from first consideration by the Cabinet. This is an attack on a system that has worked extremely well. I do not want to push it any further than to say that this proposal will not produce better candidates for the Judiciary. It will politicise promotions within the Judiciary. This process will discourage many people who would be good judges or good candidates for promotion to a higher court from applying for such positions. This Bill is misconceived.

I remind the House that before he became a Minister, Deputy Ross introduced the Thirty-fourth Amendment of the Constitution (Judicial Appointments) Bill 2013, which proposed that the Government would have no role in the selection of judges. He suggested that this would be done by a committee of the Houses of the Oireachtas. Believe it or not, he proposed from the Opposition benches that Government supporters would have to be in a minority on that committee. Deputy Ross introduced his Bill in 2013 in an effort to depoliticise the appointment of judges, but the Bill in question proposed to hand that responsibility to elected politicians. When he spoke in the Dáil in support of the Bill, he said the Oireachtas committee could debate the merits of individual candidates for the Judiciary. He is now saying as Minister that he wants to take responsibility for the appointment of judges out of the hands of politicians. I suggest that the Government should reconsider carefully whether the scheme of the Bill that has now been published will disimprove the quality of our Judiciary, inhibit people from seeking selection and remove the perfectly reasonable faculty of the Government of the day to select people from among serving High Court judges for appointment to the Court of Appeal and the Supreme Court and without having to go through any process.