Michael McDowell (Independent) | Oireachtas source

I appreciate what the Minister says. However, it occurs to me that, if we adopt the current wording of section 29, we are, in effect, approving in advance the distinction between certain senior judicial offices mentioned in section 44 as it now stands and all judicial offices insofar as section 39 applies to them. I am very much opposed to section 44 as it stands and the requirement for all judges to submit their applications under section 39. The Minister well knows the grounds on which I am opposed to that. I think it is nobody's business at all on the judicial appointments commission, and I use those words very carefully, as to who the Government, in its wisdom, decides to elevate from the Court of Appeal or the High Court to the Supreme Court, whereas I have no problem with the Attorney General of the day sounding out the Chief Justice, the President of the Court of Appeal or whoever else about what kind of persons they need and how they think Joe Bloggs or Josephine Bloggs would function as a member of a collegiate court of that kind. I have no problem with that; it is fine. However, I strongly object to, and have always been opposed to the idea of, the Judiciary having a significant say in the promotion of judges from the High Court to the Court of Appeal, or from the High Court and the Court of Appeal to the Supreme Court.

I do not want to stray into things we will be discussing later.However, I strongly believe that we cannot allow the Judiciary to become self-selecting by giving it the keys to the gate in terms of access to promotion within the judicial system. That is one thing. I believe even more strongly that it would be completely inconsistent with the function of Government if, in the case of a vacancy on the Supreme Court - such vacancies are very important in terms of the balance of that court, its collective outlook, its character and its composition - it was unable to appoint somebody because he or she was a liberal or a conservative, pro-European or moderately anti-European, or socially conservative or whatever. These are issues which are entirely for the Government to deal with. I do not see how the opinion of seven other people, some members of the Judiciary and a member of the Bar Council, expressed in a shortlist of three names, would be of any assistance to the Government if entirely different criteria are used in arriving at the composition of that shortlist. If, for example, the shortlist is affected by the obligation to effect gender balance, social diversity or whatever, the Government may, in approaching a vacancy on the Supreme Court, simply say that it is not interested in whether the particular person it has in mind is a man or a woman and that it is much more concerned about his or her attitude on issues of social liberalism or social conservatism.

Frankly, a shortlist from the group of people on this commission telling us that it has selected three people on entirely different criteria is of no assistance to us at all. I am extremely sceptical in respect of judicial promotions and in respect of lay people and judges in combination making shortlist recommendations on the basis of criteria set out in this Act. The Government must be free to choose whomever it wishes and must not be assisted by the judicial appointments commission's shortlist, which is designed to make it embarrassing for the Government to ignore the people on the shortlist because it would then have to signal to the public in Iris Oifigiúil that the person it is appointing to the Supreme Court was not actually recommended by the commission. People who read Iris Oifigiúil, and there are such people, especially intrepid reporters, will be able to work out whether somebody was or was not recommended by the commission by looking at the notice in Iris Oifigiúil. If a particular lawyer or judge was selected for appointment to the Supreme Court by the Government, it would surely be a shadow on that person's appointment if it appeared, from careful examination of Iris Oifigiúil, that he or she had not been shortlisted by a body on which the Judiciary and lay people were represented and which was charged with drawing up a shortlist of recommended persons.

Going back from that general proposition to this particular proposition, I know that the Minister has said that when he comes to my amendment, No. 90, he will engage with me on the subject, but it is not very satisfactory to think that we will engage when we get to that section of the Bill when this particular provision will have already cemented into place the distinction between section 39 and section 44 as they are currently constituted. We will be on autopilot, so to speak, after that. I ask the Minister to elaborate further on his thoughts now, before he asks us to make provision for section 44, as to whether he is happy with the present terms of section 44 or whether he is really open to amending it to make it so that promotional appointments in the superior courts are not covered by the Act.