David Norris (Independent) | Oireachtas source

The first two amendments in the group, amendments Nos. 78 and 79, narrow the criteria an applicant must satisfy to be recommended for a judicial position. The amendments also remove references to courts higher than the High Court to accord with the subsequent amendments concerning senior judicial officers. Amendment No. 90 is more comprehensive. It reintroduces the Government's original section and extends the senior judicial appointments process to ordinary members of both the Court of Appeal and the Supreme Court. It codifies the procedure the Government has adopted in respect of recent senior court appointments and it follows that this process should continue on a statutory basis. These proposed amendments are fundamental to safeguarding against the weakest elements of the Bill in its current form, which, as currently drafted, would involve 16 members of the judicial commission appointing the Chief Justice, the President of the Court of Appeal, the President of the High Court and all ordinary members of the Supreme Court and the Court of Appeal.

The process of appointment by the Government to all the aforementioned positions in the past two years or so has been to include the president of the appellate court, the Attorney General and the chair of the top level appointments committee. This process has been used to appoint the current Chief Justice, new ordinary members of the Supreme Court, the President of the Court of Appeal and new ordinary members of the Court of Appeal. For most litigants, the Court of Appeal will be their last opportunity to have a case heard, with only cases of exceptional importance ending up in the Supreme Court.

The High Court, District Court and Circuit Court are bound by the decisions of their superior courts. This includes the Court of Appeal with regard to the Supreme Court. Decisions made by the Supreme Court and the Court of Appeal are of fundamental importance to the rule of law in this State, and the officeholders of these courts bear enormous responsibility as to how the law is both interpreted and applied. The Government in its wisdom deemed that it was appropriate at a bare minimum for the Chief Justice, the President of the Court of Appeal and the President of the High Court, all of whom are members of the Council of State, to be appointed by a separate senior judicial appointments committee. This proposal was voted out of the Bill in Dáil Éireann. The Government proposes that the Chief Justice, Attorney General and chairperson of the judicial commission recommend the appointment to these offices rather than the 16-member judicial commission, which is how the law will currently operate if enacted as the version passed by Dáil Éireann.If the Government accepts the principle that the appointment process for the roles of Chief Justice, President of the High Court and President of the Court of Appeal requires a more finessed consideration than the process involving a motley crew of 16 commission members where all of these officeholders are either members of the Supreme Court or ex officiomembers of the Supreme Court, it is difficult to see why it would object to ordinary members of these courts also forming part of the separate senior judicial appointments committee process. It is essential that such a senior judicial committee not comprise a sitting member of a court, for example, the Chief Justice, having a role in appointing his or her successor or a person to serve alongside him or her on the Supreme Court. The same consideration should apply for the Court of Appeal, where the President of the Court of Appeal should have no role in appointing his or her successor or members to serve alongside him or her.

It is clear, therefore, that the senior judicial committee must be broadened so that, at all times, there are existing senior judicial officeholders capable of providing an assessment of the capabilities of a particular candidate for these exceptionally high offices, allied to the Attorney General and the lay representatives, such as the chairperson of the Top Level Appointments Committee, TLAC.

Another essential component of these grouped amendments is the plainly obvious proposal that persons deemed suitable for recommendation to the High Court ought to have an appropriate knowledge of its decisions and appropriate knowledge and experience of its practices and procedures. It would be a nonsense to appoint people who had no knowledge, practical experience or wisdom in these matters. It is obvious that they must. It is unfathomable how the Government could view these qualities as unnecessary components for a 16-member judicial appointments commission to consider when recommending candidates for appointment to the Judiciary. These are the core skills that a suitable judge might possess.

I wish to point out my great disappointment that there are more members of the public in the Gallery than there are Senators in the Chamber during the passage of this extremely important Bill. I would like to welcome our visitors. They can see now the way the process goes - it is the same two or three Senators all the time on every Bill.