Michael McDowell (Independent) | Oireachtas source

I just want to be clear. The confusion seems to lie entirely in the drafting of this legislation. This section states:

(1) The Commission shall not recommend the name of a person to the Minister unless the person—(a) has displayed—

(i) in the case of a barrister or solicitor referred to in subsection (2), in his or her practice as a barrister or solicitor, as the case may be, a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned, and

(ii) in the case of a legal academic, in his or her role as a legal academic and also in his or her practice as a barrister or solicitor, as the case may be, a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned,

Subsection 36(1)(b) states that before a person is eligible for appointment, he or she must be "suitable on grounds of character and temperament," and subsection 36(1)(c) states the person must be "suitable on grounds of health." This sounds sensible until we go back to what we have just enacted in subsection 34(1), which states: "Nothing in this Chapter shall be construed as being applicable to a judicial office to which section 44 applies." Section 44, in its present form, applies to the President of the High Court, the Chief Justice and the President of the Court of Appeal. We are now saying the provisions of section 36, which prohibit the appointment of a person who has not shown, in his or her practice as a professional, a degree of competence and probity appropriate to and consistent with the appointment concerned or is not suitable on grounds of character and temperament or on grounds of health, do not apply to the most senior positions in the country. We are told the commission is bound to inquire about the suitability on grounds of character and temperament for any other judicial position but because of the way the Bill is drafted - section 44 has been amended by the Dáil - we are now saying the one thing the commission does not take into account in selecting a Chief Justice is suitability on the grounds of character and temperament or on the grounds of health.