Charles Flanagan (Laois, Fine Gael) | Oireachtas source

No. It disapplies the various provisions of chapters 1 and 2 in Part 7 in the process set out in section 44 which concerns the recommendation arrangements for the three most senior judicial positions. In other words, the proposed addition of the words ", and notwithstanding the provisions of section 37" by the Senator and others would ensure, conversely, that the provisions of section 38 would extend to these three posts. I am, therefore, not minded to accept the amendment.

I do not wish to unduly detain Senators, but I remind them of the import and history of section 37. It was a provision included in the Bill, as initiated. I go back to Senator Norris's point about the original ordering of sections. It was originally section 39. It served as a general explanatory provision to the effect that chapters 1 and 2 in Part 7 did not apply to the procedures for certain senior judicial posts, namely, the top three senior judicial positions, which are provided for separately in section 44 in chapter 3 in this Part. Chapter 1 comprises sections 37 to 39, inclusive, and sets out the functions of the commission insofar as the general explanatory provision is concerned. Chapter 2 comprises sections 40 to 43, inclusive, and sets out the specific requirements in the recommendation of names by the commission and the procedures to be applied.

I restate my policy in bringing forward the Bill. The top three positions are that of Chief Justice, President of the Court of Appeal and President of the High Court. I believed that because of the particular demands and requirements of these posts, they should be subject to a process that could be regarded as distinct and separate from the selection of other candidates. I am still very much of that view. I am not of the view that similar considerations need to be applied to all ordinary judges of the Supreme Court, the Court of Appeal and the High Court.

I will refer briefly to the points made by Senator McDowell in support of his alternative process as he spoke about them being, ex officio, entitled to serve because they might have done so, albeit on a temporary basis. I am not sure if there is a similar arrangement across the public service. For example, I can cite numerous instances where a deputy or an assistant Secretary General acts up for a period as Secretary General, albeit on a temporary basis, and I am not sure if the same rigour as applied by the Senator to this precedent is applicable in such cases. That is when the position of Secretary General becomes vacant. The fact that somebody has acted up does not proffer the entitlement the Senator deems to be appropriate in the case of a court.I do not subscribe to the view that because someone is suitable for a position, he or she is entitled to that position. That would appear to be the import of what the Senator-----