Michael McDowell (Independent) | Oireachtas source

The more I hear about this the more alarming I find it. First, let us deal with the invitation the Minister gave me, which was to indicate that his senior appointments committee would be better than what we have here. I am very loath to do so because, if he simply brought us back to the position at which this Bill had us in the Dáil, it would still be unconstitutional for the reasons I have mentioned. I am not going to say that one unconstitutional version of this Bill is better than another unconstitutional version. Unless the Minister deals with the constitutional issues I am raising, then both versions are equally bad in my view. The fact that one may look prettier or be more polished than another does not save it from ultimately being judged as to whether it is constitutional or unconstitutional.

I invite the Minister to tell me what is wrong with the present arrangement whereby the holder of a position in the High Court, the Court of Appeal or the Supreme Court who seeks to be considered for a more senior position is invited to intimate to the Secretary General to the Government that he or she is so willing. What is wrong with that? Does it somehow embarrass the Government to know who is interested in a particular appointment? Does it produce worse results? Does it amount to a form of canvassing which is reprehensible in some way? Of the 40 or so High Court judges - I am not sure how many there are, it is 40 or thereabouts - if 20 would, if asked, serve in the Court of Appeal why should the Government not know that? Why should it not know who they are?

By the way, I am absolutely sure that some judges of the High Court would not like to be appointed to the Court of Appeal, notwithstanding the slightly larger salary that goes with the appointment, because being a member of the Court of Appeal requires great intellectual endeavour and industry in terms of written submissions, preparing written judgments and the like. Some judges might feel that, having done ten or 15 years in the High Court and having dealt with defamation actions and this, that and the other, they frankly do not want to specialise as a points of law judge from now on. That is a perfectly respectable point of view. It is not to be assumed that every member of the Judiciary would like to be on the Court of Appeal or the Supreme Court. Yes, the term "promotion" can be used and it is doubtless that all of them would consider it an honour of sorts, but some might say that if they have another five or ten years to serve as a judge they might prefer to spend it on a mixture of cases rather than hearing points of law cases for the rest of their lives.

Likewise, it is very definitely my view that many judges might like to be on the Supreme Court but might not like to be on the Court of Appeal. Such judges would be minded to make an application for one, but not for the other. There is nothing wrong with that. I can well imagine men and women on the High Court Bench saying that they would not like to be on the Court of Appeal but that they would like to be on the Supreme Court if asked by the Government. That is a perfectly reasonable, rational frame of mind for somebody to have.

When the Minister asked if I would not consider that what he had in the Bill before it was amended in the Dáil was better than what we have now, I am dubious about the proposition because at least the constitutional flaws in this legislation are more obvious, even though they were present in the original version of the Bill.If the Minister wants to reverse the decision taken in the Dáil on the presidencies of the Court of Appeal, the High Court and the Supreme Court, why did he not put down an amendment on Committee Stage in this House so that we could discuss it in the proper way? Why is he holding back until Report Stage to come forward with his proposals? I do not see why that should be.

To have a special procedure for the presidency of the High Court, the Court of Appeal or the Supreme Court suggests in some sense that those positions are of much greater importance than the ordinary membership of those courts. For example, in many respects the Chief Justice is the titular head of the Judiciary. One Chief Justice does not outvote two ordinary members of the Supreme Court, however, and it is not as if they are qualitatively different or have greater clout by virtue of being on one side of an argument rather than another in a collegiate decision. I do not accept the proposition that we should provide a wholly different mechanism for somebody to be appointed an ordinary judge of the Supreme Court from the mechanism we provide for the appointment of somebody to be Chief Justice.

I have a postscript, if one likes, to these remarks. I am not as convinced, as many judges are, that they are in the best position to tender much advice on these matters. I shy away from the idea of a self-perpetuating, self-appointing or self-recommending Judiciary. The Government is the body that makes the decision-----