Michael McDowell (Independent) | Oireachtas source

That is my point, a Leas-Chathaoirligh, I was just going to point that out. I therefore cannot agree with what is provided in section 34(1), which refers to that. I am opposed completely to the procedure set out in section 44. When this Bill started off, there was to be a fast-track for those positions which did not involve a visit to the judicial appointments commission. It was amended I believe in Dáil Éireann so as to abolish the fast-track and require everybody who wanted to be appointed to the Supreme Court or whatever, to make an application to the judicial appointments commission, and to be either on or off a shortlist as the case may be. I am utterly opposed to that in principle. It is wrong. Sitting judges in the superior courts should never have to go before the judicial appointments commission to see whether they are suitable for appointment to the Court of Appeal or to the Supreme Court.

I will elaborate later on this but my strong view is that when the Government comes to decide what person it should or should not appoint to the Supreme Court, it operates on the basis of its own criteria as to what kind of Supreme Court it wants to establish - what kind of philosophical balance, balance of legal outlook, what kind of balance in terms of liberalism and conservatism, being pro-European less pro-European or whatever. These are issues which only the Government is entitled to decide upon and which the Constitution gives to the Government as its own function to make its own mind up on.

Asking judges in the High Court to submit their names to the judicial appointments commission with a view to determining as to whether they should be on a shortlist to be considered by the Government is in my view not merely invidious, but it strikes at the heart of what the Government's prerogative, function and duty is, namely, to make up its own mind on this issue. It can of course take advice from whoever it likes. It can set up an institution which can tender advice. In this case we are making it an offence for anybody to canvass for his or her appointment to the Supreme Court and we are also, as I have pointed out on another occasion, making it an offence for the Attorney General to tell the Government who the unsuccessful applicants for promotion, who were not shortlisted, actually were.

A combination of all these factors makes this an unconstitutional provision. I also believe that it seriously infringes the independence of the Judiciary that they should undergo an evaluation process the same as somebody who is not a judge just because they want to be seriously considered by the Government for promotion from the Court of Appeal to an ordinary member of the Supreme Court. That is not right and is wrong in principle.

I would be reassured if the Minister would tell me that he has been reconsidering the provision that the Attorney General should commit a criminal offence if he or she discloses to the Government who the unsuccessful applicants for promotion were. If the Minister was to even tell me that he was reconsidering the stance he has taken on that in the course of this legislation I would feel some sense of reassurance. In the absence of that I cannot agree to the section 44 procedure existing at all.