Michael McDowell (Independent) | Oireachtas source

Section 37 is the first section in Chapter 1 of Part 7 of the Bill. It states: "Nothing in this Chapter or Chapter 2shall be construed as being applicable to a judicial office to which section 44applies". As we know, section 44 applies to three offices. Those are the appointments to the positions of President of the High Court, President of the Court of Appeal and Chief Justice. The disapplication of Chapters 1 and 2 is significant. If Chapter 1 is not to apply, it means that, for instance, section 38, which in subsection (a) concerns the commission providing "information on the selection procedures and the other matters that are set out in a [public] statement", continuing in subsection (b) with "shall, as the occasion requires, invite, through means of advertisement, the making of applications by persons to be considered for selection, that is for their being selected to be the subject of a recommendation for appointment to judicial office, and" may do so in other things, does not apply if this chapter does not apply to appointments to those three positions.

Section 39, which would also be disapplied if section 37 stands, states in subsection (1): "Subject to subsection (2), a person, including a person who is for the time being a serving judge ... [and] who wishes to be considered for appointment ... shall make an application to the Commission in that behalf (specifying the judicial office concerned); [and] that application shall be in writing or in such other format as may be specified in the selection procedures". If that does not apply to the Chief Justice, the President of the Court of Appeal and the President of the High Court, it seems to me that it follows that it will apply to the position of ordinary member of the Supreme Court. This section, in effect, is being disapplied to those three particular offices.

Why are the publications of selection procedures and the like disapplied to the position of the Chief Justice, the President of the Court of Appeal and the President of the High Court? There is no reason given for that. Of course, the reason is that under the original section 44, the commission was to have no function whatsoever in respect of those appointments and, therefore, it made sense to disapply all of that chapter to appointments to those offices. One question I have been wondering about is that if it was the intention of Dáil Éireann to require all positions, including that of Chief Justice, to be the subject of applications to the judicial appointments commission, is there any indication that the Dáil has changed its mind? If we start amending the legislation now so as to undo the amendment that the Dáil made, are we going to find ourselves back in the position where this Bill goes back to the same process in Dáil Éireann only for that House to reject the Minister's formulation for the second time? We would then be left with the Bill in a very dodgy condition.

I am worried about that. I am worried about the whole idea that we should have elevated the procedure to those three presidencies to one particular channel. Even if it is remedied by the Minister so that the judicial appointments commission will have nothing to do with it in future, all other judicial offices will be subject to what is provided for here. There is no point in me repeating why I am against it. I just am against it.

I believe, by the way, that if this Bill is considered by the courts, perhaps by the Supreme Court under Article 26, or by the court system in the context of a challenge brought other than under Article 26, the Judiciary will be obliged to consider a very simple question as to whether it is appropriate for it to be looking over its shoulder at an advisory commission which can, effectively, prevent members of the Judiciary from being considered by the Cabinet because the fact that they are interested must be kept secret and the Cabinet must be kept in the dark about their interest in the position.

I believe that the Judiciary, at whatever level and by whatever means, will ultimately find that is unconstitutional. I remind the Minister that every member of the High Court can sit on the Supreme Court ex officio. They are deemed to be capable and suitable to discharge the function of an ordinary member of the Supreme Court. In that context, I cannot see why members of the High Court should have to apply to a group of people, who are not the Government, for a vetting process and a setting in place of preferences for first, second and third on a list when all of them are eligible, ex officio, to be members of the Supreme Court and to sit as a member of the Supreme Court if called upon to do so by the Chief Justice. Why are we doing all of this?

It is a long time now since we considered the views of the European Commission on interference with judicial independence. It seems like it was almost months ago since we discussed all of that territory.