Michael McDowell (Independent) | Oireachtas source

That would be far better, but I reject that idea completely. I am not very keen either on installing the Judiciary in a position where it would have a pulpit view in the selection of the Chief Justice. A new Government might take a different view from that of the Judiciary of who should or should not be the next Chief Justice. Asking the Presidents of the various courts to furnish a report with a short list to the Government is not a very healthy development. I was present when two Chief Justices were appointed. I am not going to go into detail, but it was a matter for the Government to consider and discuss. It did not need a group of whatever complexion or even the Judiciary tapping the Minister on the shoulder to say Jo or Josephine Blogg would be better than Jane or James Smith. I do not think the Judiciary should have a significant role to play in making recommendations as to who the Chief Justice should be. That is a bad idea. I know that in the situation as I found it it was perfectly open to the Attorney General to go to the outgoing or soon to be retiring Chief Justice to discuss the question of succession with him or her. That was open to being done and the Attorney General to come back to the Minister for Justice and Equality to say the name, or the Minister for Justice and Equality could have done it and asked the Attorney General who the front runners were. It is perfectly reasonable for a Minister to ask, but in the end it is a matter for the Government to make up its mind on the issue. The intervention of others is not of assistance.

I will go back to my starting point, if we are to be logical, that if one does not trust the Judicial Appointments Commission to make recommendations to the Presidents of the three superior courts, why not? Is there some reason they would not ask for people to be evaluated by the Judicial Appointments Commission appointment to these three positions and that reasoning does not apply in being an ordinary member of any of those courts? I do not see the logic in it.

I read a remark attributed to one member of the Government that somehow Law Library insiders were opposed to this legislation. I will tell Members what Law Library insiders and outsiders and all members of the legal profession, barristers and solicitors, are concerned about. It is the question of whether this legislation will improve or disimprove the quality of the Judiciary and whether it will make it more or less likely that people who would make good judges will be frightened away by a process in which they would have to submit themselves for evaluation in a beauty parade and then be rejected off a short list for consideration by the Cabinet. What I find is that it is not a matter about Law Library insiders but people who care about the constitutional fabric of the country. It is about people who care for the Constitution. They ask whether the Bill will produce different and better judges or if is all window dressing.

The Minister invited me to go down the road of thinking that this is similar to an official acting up as Secretary General, but it is not. Once an individual is made a judge of the High Court, under the Constitution he or she is given the function in an individual case of making a full and original determination on issues such as the constitutionality of an Act. Every single member of the High Court has that power. Once one becomes a member of the High Court, as legislation has it in place, one becomes somebody whom the Chief Justice or the President of the Court of Appeal can tap on the shoulder to ask to participate in the affairs of the Supreme Court or the Court of Appeal, as the case may be. This is not theoretical. I have been involved in a case before the Court of Appeal in which High Court judges were sitting with Appeal Court judges. I do not know whether it was due to a shortage of numbers or prior conflicts-----