Michael McDowell (Independent) | Oireachtas source

This is the first section in Chapter 2 of Part 6 of the Bill. We are now getting to a crucial portion of this proposed legislation. Chapter 2 is concerned with eligibility and preconditions for appointment to the relevant judicial offices. What I have a major problem with is that section 34(1) states: "Nothing in this Chapter shall be construed as being applicable to a judicial office to which section 44applies."This is, in other words, part of a legislative scheme which includes section 44. Section 44, as the Bill currently stands, is an entirely separate chapter of the legislation on appointments to the position of Chief Justice, President of the Court of Appeal and President of the High Court. The exclusion in section 34(1) is to say that the divisions of this chapter will not be applicable to appointments as Chief Justice, President of the Court of Appeal and President of the High Court but will be applicable to all other judicial appointments. That is where, among other places, for the purposes of this discussion, I part company with the legislation.

This chapter provides that: "In addition to the requirement ofsections 7and 36and subsection (2)and (where it applies) subsection (3), the Commission shall not recommend the name of a person to the Minister unless it is satisfied that the requirements of the relevant provisions are complied with in relation to the person." It then states: "In the taking of steps that result in a recommendation of a person's name to the Minister, the Commission shall ensure that the requirements in the published statement are complied with."

We will come back to that in a moment when we can deal with that in more detail on section 35. Section 35(3) states:

In the case of an appointment to the office of—

(a) ordinary judge of the Supreme Court,

(b) ordinary judge of the Court of Appeal, or

(c) ordinary judge of the High Court,

the Commission shall not recommend the name of a person to the Minister unless, in the opinion of the Commission, the person has—

(i) an appropriate knowledge of the decisions, and

(ii) an appropriate knowledge and appropriate experience of the practice and procedure,

of the Supreme Court, the Court of Appeal and the High Court.

The problem with all of this is that if ordinary judges of the High Court and the Court of Appeal, those two categories of people, are to be appointed or considered for a recommendation by the commission, the commission is going to have to ask itself about the candidates appropriate knowledge of the decision and appropriate experience of the practice and procedure of the Supreme Court, the Court of Appeal and the High Court.

To take an example, let us go back to what we were discussing earlier, namely, a District Court judge. A District Court judge, on the Minister's version of section 33, is to be eligible. We are now going to have a situation where the commission is going to have to carry out an inquiry as to whether the District Court judge has appropriate experience of the practice and procedure of the Supreme Court, the Court of Appeal and the High Court. That is an extraordinary thing to do.

It is even more extraordinary that an existing Circuit Court or High Court judge would have to go through that test, that is an existing High Court judge be effectively required to prove his or her experience of the Supreme Court in order to be appointed to the Supreme Court. Once one is a judge of the superior courts, namely, the High Court, the Court of Appeal or the Supreme Court, one should be eligible,ipso facto, to be appointed and one is, in statute, eligible to any more senior position in those three courts. Asking existing members of those courts to apply to the commission for its approval and their shortlisting for a position is entirely unjustifiable. I will come back to that at a later stage and will not elaborate now because I do not want to be repetitive.

I utterly disagree with the procedure laid down in section 44 and therefore I cannot agree with the provisions of section 34-----