Michael McDowell (Independent) | Oireachtas source

I would like know whether I am wasting my time and playing handball against a ministerial and governmental haystack in respect of the obligation this Bill proposes to put on all existing members of the superior courts to effectively engage in a competitive process to be shortlisted to be among the three names to be sent forward for consideration by the Cabinet. If I was told the Minister is now reconsidering that position I would be greatly relieved and feel we were making some progress in this debate. However, if I am told that is not the intention of the Government and that it will not yield on that issue, then I am equally obdurately opposed to the passage of this legislation and equally convinced that it is constitutionally infirm.

Section 35(1) states: "In addition to the requirement of sections 7and 36and subsection (2)[of section 35] 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 that person."The relevant provisions are set out in subsection (6) of the section.

Section (7) is referenced in subsection (1) and, as have already debated it, I will not go into it great length. Section (7) states, "A decision to recommend" and a fortioria decision to include somebody on a shortlist of three "shall be based on merit". It further states: "Subject to subsection (1), where the function, under this Act, of selecting and recommending persons for appointment to a judicial office falls to be performed, regard shall be had to ... the objective that the membership of the judiciary should comprise equal numbers of men and women." That is the first proposal, that there should be numerical equality between men and women as far as possible. Second, the section also states "the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole". Third, it states. "the objective that, consistent with the written statement most recently provided under section 53(7) to the Procedures Committee concerning the needs of the users of the courts in that regard, the membership of the judiciary should include persons with a proficiency in the Irish language".

This shortlisting process has statutory criteria which are blended in a strange way with the idea of merit. When we read section 7(1) and 7(2) it is not clear whether it is based purely on these being the three best people full stop, or that these are the three best people having regard to the need for the numerical equality of men and women in the Supreme Court. It makes one wonder. Supposing it were the case that the judicial appointments commission was confronted with a Supreme Court which had of nine members, seven male and two female members, in comprising its shortlist is it to attempt to ensure that the position is secured by a woman? If it is to do that, how is it to do it? Is it to ensure that the majority of the shortlist of three should be women or that all three of them should be women and leave the Government with a choice of the top three women, bearing in mind the existing imbalance in the Supreme Court?

These are the kinds of matters the commission will be driven to considering in its procedures, whereas what happens at Government is something totally different. What happens at Government is a consideration as to whether Mr. Justice Michael McDowell is a person who is a liberal or a conservative on social issues. That is an issue curiously which the commission is not allowed to take into account. Those are not the criteria that it is allowed to take into account. It is strange that the Government is obliged to take into account criteria in respect of which the commission is supposed to compose a short list for the Government that the commission is excluded, by the terms of this Act, from considering.

That emphasises the fundamental error of applying the terms of this statute to promotional appointments within the Judiciary. If the Government of the day wants to make the Supreme Court more liberal or more conservative, as it may well wish to do for perfectly good reasons, or, as I said earlier, more pro-European or less pro-European or more generous on the subject of personal compensation or less generous on that subject, and to make decisions along those lines, not merely it is perfectly entitled to do so, it is duty bound to do so, if it considers that is in the national interest. Yet the body that composes the shortlist for consideration by the Government is not entitled to look to those very questions. It is supposed to come up with a shortlist by reference to different criteria. That is what I find so incongruous about this legislation, that a group of outsiders are being asked to ask to make a shortlist decision by reference to criteria that the Government is not merely not concerned with but that it has a much bigger priority to make its own decision unencumbered by, say, for instance, the gender balance on any particular occasion.It may be far more important for the Government to select Mr. Justice David Norris for appointment to the Supreme Court.