Michael McDowell (Independent) | Oireachtas source

-----from the Court of Appeal or the Supreme Court. I am not saying, for reasons of intellectual snobbery or any such reason, that the members should not apply to the judicial appointments commission.It is because nobody should be on one of those courts who is not capable of functioning when invited on the Court of Appeal or the Supreme Court. There are not two tiers of Judiciary in the High Court. There are not class B judges whom nobody would touch with a barge pole, who should never be asked to participate in the hearing of an appeal because they are in some sense inferior or of a lower grade. They are ex officiocapable of discharging the function of an ordinary judge of the Court of Appeal or the Supreme Court. It is precisely for that reason that there is no rhyme or reason in asking them to submit themselves to another group who will re-evaluate them or ask if they should be there permanently rather than just temporarily. They are capable of doing both. That is why I am offering the Minister, in a constructive and friendly way if I can, a coherent intellectual reason for saying that serving members of the High Court, the Court of Appeal and the Supreme Court should not be asked to resubmit any application to a body at any stage. They have already passed the test. They are already deemed to be capable of discharging the functions of ordinary judges of those courts.

I am not going to push the matter much further. I know the Minster started off with the position, which I fully understand, that the three presidencies were to have this special arrangement. Everybody else who was to be considered for appointment had to go via the commission and be the subject of a shortlisting arrangement. The fact that a judge has been put on the High Court effectively shortlists and qualifies him or her to be an ordinary member of the Supreme Court when requested to act. Therefore he or she has passed all the relevant tests. I have to nail down this point; the question then is whether he or she should be a permanent member of the Supreme Court or just somebody who may be asked by the Chief Justice to act up, so to speak, from time to time. Under the Constitution, that latter question, whether Mr. or Ms Justice Blogs, a member of the High Court, should be in the Court of Appeal or the Supreme Court, is one for the Government alone to decide. It is the Government that decides the composition of the Supreme Court. The Government looks to the kind of Supreme Court it wants. It looks to the kind of judges that are available to it, and others, to make up the kind of Supreme Court it wants and it makes its selection. It is a governmental matter. A re-evaluation of each judge by a group of outsiders is not needed. When I say "outsiders" I mean outside of Government, not outside of the practice of law. The Government does not need to be told that a man or woman who has been serving on the High Court for ten years must be re-evaluated to see if he or she should be a member of the Supreme Court. That function is reserved for Government. It is my view that the spirit of this legislation is an attack on that constitutional prerogative of the Government. It is designed to say that the Government can theoretically select Mr. Justice Norris and put him into the Supreme Court but it cannot really do so. The legislation will make it very embarrassing for the Government to do so unless the candidate has gone to the judicial appointments commission and somehow persuaded it that he is all right from the point of view of background, social representation, gender balance, the whole lot.