Michael McDowell (Independent) | Oireachtas source

Anybody who puts as much effort as some individuals have done in order to get to the Cabinet table and park their feet under it, should not be there if he or she is not willing to accept responsibility and personal accountability for the appointment of judges. In the end, this legislation, in whatever shape or form in which it is passed, cannot transfer responsibility for the choice of judges from the elected Government of the day, or each member of the Government, to any other body. If one cannot stand the heat in the kitchen, one should not be there. If one repudiates the role the Constitution gives one in the context of making decisions as to who should be appointed to the Judiciary, one should not be in government. It is shameful to pretend that one is a member of the Government if one somehow abdicates one's responsibility for carrying out that function.

This is important. The Minister will doubtless internally agree, even though he will not nod his head. The delay we have encountered for the past year or two in appointing judges on the basis that this legislation has not yet been passed is unconscionable. Very good appointments have been made by the Government in the recent past. There was no reason not to make them. There was no reason either, however, to go on an individual ministerial go-slow or to take a non-co-operation tack in order to prevent the filling of judicial vacancies.

Yesterday morning, I heard a High Court judge complain of the absence of judicial resources. There are vacancies to be filled. There should be more judges appointed, not fewer. If the judicial system is to function, we not merely must have more judges, the Department of Justice and Equality, through the Courts Service, is going to have to face up to this and put its hand in its pocket in order to give judges assistance in the discharge of their functions. No justice Minister, past or present, myself included, and no senior civil servant, including every honourable and decent civil servant I have ever met, would accept the duties that a High Court judge performs with the tiny resources given by way of support. The House should consider what it is like after the end of a three-week case to be told that one must deliver a written judgment, which sometimes may run to 100 pages, analysing the arguments of both sides, ruling for or against the legal arguments on both sides and analysing the evidence and ruling on its credibility. How long would one need to carry out that function without any assistance whatsoever? How would one deal with this while the president of the court says he needs one back the day after tomorrow to do another case because there are inadequate judges and that the whole system will collapse if one does not keep hearing cases while reserving judgments? No Minister could function on that basis.

I have had the honour of being a Minister and of serving as Attorney General. One could not discharge the functions of either office without people drafting and putting forward analysis pieces in private or without having secretarial and research support to assist on in carrying out one’s functions. However, we ask judges of every rank to carry out their functions with the most tiny and exiguous support. They have one junior adviser each, who do not command big salaries, or researchers as they are called. That researcher must frequently act also as the court messenger for the judge. That is the function that used to carried out by judges’ tipstaffs of getting the books while a court is sitting and sending messages to other judges. That is the only support we give to judges of the High Court, the Court of Appeal or the Supreme Court. Will Members consider the pressure that is on any man or woman, over the years, to carry out that function?

I strongly believe that our biggest preoccupation, especially now we are the only common law country left in the European Union, must be to ensure that the quality of the administration of justice in Ireland is excellent and speedy by international standards and that the jurisprudence of the Irish courts measures up to the best international standards. These are important issues. Foreign direct investment companies, American in particular, come to Ireland because they can understand our legal system. They can lift a judgment and understand how a case was decided. Much more importantly, they can understand an entirely independent and arbitral Judiciary will listen to both sides in a case and deliver a reasoned judgment at the end. Contrast that with the European Court of Justice, in which a series of judges sit quietly and deliver one judgment. They are precluded from giving any dissenting judgment. If they do not deal with the arguments of one side or another on a particular issue, there is nothing that can be done about it.That is the way their system works. At least the European Court of Human Rights allows for dissenting opinions. The European Court of Justice does not. We need really excellent men and women to discharge the function of being judges in Ireland. Merit-based appointment means that a person shows excellence in doing his or her job. It does not mean that he or she deserves it in some kind of old pals act way. It means that he or she is the best person to carry out that judicial function. This particular legislation is missing an opportunity to deal what is weakest in our judicial system and what is most vulnerable about it, which is that it is under-resourced. Instead of identifying that problem, it is erecting the notion that cronyism is somehow a problem with our Judiciary and that cronyism in appointments is, or has been, a problem that has done serious damage to the Irish judicial system in the past. It has not.

It is important that the next thing I wish to say is said again for the benefit of one particular Minister who is not here. When it comes to appointing a judge to the Supreme Court, whether a man or a woman, the decision as to who should be appointed does not reduce itself to some statutory formula or whatever. When one comes to consider how a vacancy in the Supreme Court should be filled, be it a vacancy for an ordinary judge or the Chief Justice, one has to look at one issue, namely, what kind of court are we creating overall? Is it reformist, conservative or liberal? These are the questions one has to ask oneself when one is in government. Having been Attorney General, Minister for Justice, Equality and Law Reform, and Tánaiste, I know this. One has to make decisions about men and women not only by virtue of how well they know the law but based on the kind of court one wants to create. Does one want to create a court which will be judicially activist or does want to create one which will be reasonably conservative? Does one want to have a court that is likely to clash with the Executive regularly or one which is less likely to do so? Does one want a court which is going to be totally pro-European in its outlook or does one want to create a Supreme Court which will remember the sovereignty of the Irish people as well? Those are the kinds of questions that actually did decide, in the round, who became members of our Supreme Court.

It is proper for those decisions to be made only by the Government of the day, not by some self-appointed group of people who think they know better who should be on the court by reference to the candidates' socioeconomic backgrounds or whatever. I am not trying to trespass on the next amendment proposed by Senator Bacik, which is equally important.