Michael McDowell (Independent) | Oireachtas source

In response to that invitation, I agree with the Minister in one sense that there are good and sound reasons the presidencies of those three courts should have nothing to do with the commission. I agree with him on that very bare proposition. I go one stage further and say I can see no reason the commission should have anything to do with the selection of somebody to be an ordinary judge of the Supreme Court. I do not believe that the commission is any position to judge whether a High Court judge, after ten or 15 years of service should or should not serve as an ordinary member of the Supreme Court. Perhaps the judicial members of the commission or the lawyer members may have a view on that matter but, as an institution, this commission does not have any function in advising the Government as to who the ordinary members of the Supreme Court should be.

It comes back to this, the criteria laid down for the judicial appointments commission to make recommendations are emphatically not the criteria which the Government applies in deciding who should and should not be appointed as ordinary members of the Supreme Court.From my experience the Government decides what kind of Supreme Court it wants; what kind of outlook it wants seen in the Supreme Court; and what kind of likely approach to particular decisions at a high level of principle a particular person is likely to take by reason of the general judicial and philosophical outlook he or she has shown over the years. Those are the kinds of decisions that are made at Government level. It is not appropriate simply to appoint a person who has done ten years and is polite to litigants and professionals. Nor is it appropriate to appoint an extra two men or two women simply to establish some gender balance in the Supreme Court. It may well take gender into account. Given the background in the Irish system of judicial appointments, every Government should remind itself that women solicitors and barristers have in the past been passed over just out of ingrained habit of mind when perhaps they should have been considered earlier. I accept that proposition.

However, when it is making appointments to the Supreme Court it is not making the same kind of decision as the judicial appointments commission is bound by this statute to make. It will not apply the same criteria. It will not appoint one person rather than another person to the Supreme Court on the basis of diversity or the social background it wants.

Whereas I agree with the Minister and I respond to his invitation with great alacrity to say that the judicial appointments commission should have nothing to do with the presidencies of any of the superior courts, I say it equally applies to appointments within those courts. The judicial appointments commission is simply not in a position to make up its mind on those issues.

For instance, on the idea that a High Court judge might be promoted to either a position of ordinary member of the Supreme Court or ordinary member of the Court of Appeal, the reason a Government might have for selecting one candidate rather than another could be quite different from the criteria this statute proposes the commission to adopt. I will give an example. It might decide we need people who are more conversant with the European Union’s laws in one of those courts than another. While that is perfectly reasonable, it is none of the business of the judicial appointments commission. It is not obliged to take that into account and it is not authorised to start asking how candidates square up from that point of view. Nor is it in a position to decide it actually wants a pro-European or an anti-European tilt, if I may use that phrase, in the composition of the Court of Appeal or the Supreme Court. It is simply not competent, authorised or enabled to make decisions of that kind.

Therefore, short-listing eight people down to three people, which is its function, and presuming that these three people are the best when the Government, itself, will apply different criteria and may have very different search criteria in its own mind when filling those positions, is wholly inappropriate. That is my point. That is why I wanted to keep the appointments to positions in the Court of Appeal and Supreme Court out of the hands of the commission because those are fundamentally decisions to be made by Government.

In response to Senator Bacik’s point, the Minister says that he can see no reason that a direct approach should be made to anybody to consider applying. From experience, I can tell the Minister that is very frequently the case. While I do not know what the present Attorney General does, in the past the Attorney General has indicated to a particular practitioner, solicitor or barrister, that an application from him or her would be welcome and asked the practitioner to put their name into the JAAB. That is what happens at the moment.