Michael McDowell (Independent) | Oireachtas source

The purpose of the amendment is to underline our opposition to the idea that sitting members of the superior courts should be under any obligation to submit to legal experience and qualification evaluation by the commission at all. We are opposed to the idea that sitting judges should be asked to submit their names to the commission for appointment to the Court of Appeal and the Supreme Court. This may appear to some people to be a matter of less importance than I feel it is. The reason I say this is that at present, when the judges of the High Court, Court of Appeal and ordinary members of the Supreme Court carry out their duties, they are required to be impartial and hard-working in upholding their constitutional declaration and they are required to discharge the functions of a High Court, Court of Appeal or Supreme Court judge as the case may be, which involves the evaluation of cases purely as matters of law and not by reference to other criteria. To uphold the Constitution and the laws in their decisions impartially requires them to function clearly independently from public opinion going one way or the other on issues. It is about standing up for the rights of an individual citizen at law and under the Constitution, however popular or unpopular the position of that individual citizen may be.

Under the JAAB procedure at present, no member of the High Court, the Court of Appeal or the Supreme Court is required to, enabled to or in any sense eligible to submit an application to that body for its determination as to his or her suitability. A judge of the High Court cannot apply to be evaluated or declared suitable by the board for promotion to the Supreme Court. There are very good reasons for this. It is not the business of the current members of the board to start ferreting around among the existing High Court Judiciary and saying so-and-so is suitable and so-and-so is not suitable to be on the Court of Appeal. It is a matter for the Government to make this decision, and it is a matter for the Government to take the advice of the Attorney General and, usually, the advice of the Minister for Justice and Equality and make up its mind as to who among the existing Judiciary in the superior courts should be promoted to the Court of Appeal or the Supreme Court.

Currently, of course, the Attorney General or the Minister for Justice and Equality might well confer with the president of either of those courts if it were for a position as an ordinary member of either of those courts for his or her view as to whether there was anybody whom he or she thought would be particularly useful or appropriate to be included in a court to supply a vacancy in that court. The Government does not ask all members of the Judiciary to engage in a beauty parade before an institution that is independent of them for evaluation or shortlisting.

I am interested to know whether any common law jurisdiction requires existing members of its court of appeal to be vetted by a lay commission as to whether they should be made members of the supreme court of that jurisdiction. I do not claim to be an expert but I would be surprised if it were the case that the members of the court of appeal in London would have to submit to a full-scale evaluation by a majority group of lay people to make a recommendation as to whether they should be appointed to the English supreme court. I very much doubt this is the case. Even if the English were so minded to do it, they are not living in the world of a written constitution. The written Constitution we have states such an appointment is a matter for the Government.

I indicated earlier the outline of my view on this matter but in this context I have to reiterate it because we are now getting to the point where it is directly an issue in the amendments, section 35 and succeeding sections. The decision as to whether a High Court judge or a Court of Appeal judge is appointed to the Supreme Court is a matter exclusively for determination by the Government. The Government is free to take advice, soundings or whatever it likes in any quarter on this matter by whatever means it chooses but it is not constitutionally competent for the Oireachtas to tell it that it must operate in a state of legislatively imposed ignorance as to who wants to be appointed and who is available to be appointed to the Supreme Court, and certainly not in a context where the Attorney General of the day, who sits at the table when the Government is making its deliberations and traditionally has always been available to express his or her views as to the desirability of one nominee rather than another, should be committing a criminal offence if he or she discloses to the Government at a meeting to consider the matter that one particular person has shown an interest and has applied once or on a number of occasions to the commission but has not been shortlisted.The desire to keep the Government in ignorance as to who are the unsuccessful would-be appointees - by unsuccessful I mean the people who have failed to make the shortlist to be sent forward by the judicial appointments commission - is, in my submission, absolutely indefensible. There is no possible reason a Government in a situation where eight members of the High Court and two members of the Court of Appeal have expressed a wish to be appointed to a vacancy in the Supreme Court, should be told it cannot find out who of those ten people had expressed an interest in the appointment and may only be informed, on pain of the commission of a criminal offence, of the identity of the three people the commission has shortlisted. That proposition, and the desire to have that situation in place, runs counter to the function of the Government under the Constitution.

As I said earlier, if the Minister was to tell me he had been listening to the debate in this House - I know he is listening, I am not suggesting he is not, and he has very little choice in the matter-----