Seanad debates

Wednesday, 19 December 2018

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)


10:30 am

Photo of Michael McDowellMichael McDowell (Independent) | Oireachtas source

I think I am right in saying that the Minister has said that any amendment of this Bill, which had the effect of saying that in the case of ordinary appointments to the Court of Appeal from the High Court or to the Supreme Court from the High Court or Court of Appeal, to exempt those type of appointments from the purview of the commission would be against the spirit of this Bill. I am glad that he has said that because that makes it clear this Bill is at heart unconstitutional.

At various Stages it was thrown before this House that the Judiciary itself had recommended shortlisting and the like. I have never seen the Judiciary ever say, collectively or individually, that it favours what the Minister is proposing now, and that is that individual judges who want to be considered for appointment to the High Court, the Court of Appeal or the Supreme Court should have to make an application to the commission. I have never seen that said in public and I do not believe it is their position. In fact, I believe the contrary to be the case, that that is not their position.

They do not want to be in a position that they have to apply to the commission or, of their number, those who want to be considered, have to make an application to the commission as the ordinary way of being considered for appointment to those offices. The reason is twofold. The Minister has referred to the phrase that I have used, which is "embarrassing". It is embarrassing for a serving judge to constantly put his or her name forward for every promotional position that comes up and constantly be told, or infer from the silence that follows, that he or she was not shortlisted without explanation. It is embarrassing. It will have the effect that the ambitious people, who may not be the best people in those courts, are the people who feel most disposed towards making repeated applications to the judicial appointments commission for consideration for promotion. Whereas the more intellectually humble but far harder working and, perhaps, far more suitable people will say, "I am not going through this process. I have done it once and I was not even told whether I was shortlisted the last time so why should I continually keep going back again and keep submitting to interviews by a whole load of people who are going to ask about my suitability on grounds of temperament or whatever else to have such a position?" The provision is going to have a deadening effect.

I do make the point to the Minister that this legislation is not going to improve the quality of our Judiciary at all and will disimprove it. The legislation will inhibit people. The legislation will inhibit the Government from making appointments that it considers correct and it will inhibit applicants for judicial office from going through this convoluted rigamarole, which will appear under Part 8, for being considered to be shortlisted.

The Minister has said that best practice would be applied to the manner in which these appointments would be made. He never made the following clear to me. Will people who were not shortlisted be informed of that fact? Will people who were shortlisted be informed of that fact? Will they just submit their applications, attend whatever interviews that take place but end up in a total fog where they do not know what happen only to read it in newspapers or Iris Oifigiúilthat somebody else got the job and that is it? Those aspects are fairly crucial.

If one is a High Court judge, and I do not have too florid an imagination to see myself in this position even though I am past it now, if one were a male or female High Court judge and one submitted three applications yet nothing happens, does one just keep banging one's head off the stone wall and hope something will come up sometime? This system seems to imply that one just keeps putting one's name forward, attending interviews, submitting forms setting out all of one's wonderful characteristics but one keeps being told "No". Does the Minister expect sitting High Court judges to spend their time doing this? In the nature of things, with the current size of the Judiciary, the expansion of the Court of Appeal that the Minister has now publicly undertaken to bring about, the fact that there are between 50 and 60 superior court judges now, and given that they are all people in their 50s or 60s, though another issue is when they should retire, we are going to be in a position that there is going to be a fairly constant stream of appointments?There is going to be a fairly constant stream of appointments. People who want to be appointed to those positions are going to submit applications once or twice but if they do not know what happened to their applications or even whether they were short-listed, they will lose interest. When they apply for the post of Secretary General of the Department of Justice and Equality, civil servants know whether they were short-listed. They are not left in the dark. Judicial applicants will be left in the dark.

I think I have said enough on the amendments. The Minister has stated very clearly that it would be against the spirit of the legislation not to require current superior court judges to apply to the Court of Appeal as the primary means of being appointed. That raises a question that is left hanging in intellectual space by the terms of section 40(3), that nothing in subsection (2) shall be construed as limiting the advice the Government may give to the President with regard to the appointment by the President under Article 35 of the Constitution of a person to be a judge. It is all very well to say that and to claim this is a little constitutional safety valve which lets us off the hook completely. What the Minister has said here is that judges will not be allowed approach Members of the Government or indicate their willingness to the secretary of the Government. He informed Senator Bacik that nobody will go and tap them on the shoulder and he has told us that the Attorney General would commit a criminal offence if he or she told the Government of the people who applied but were not short-listed. Putting all that together, the Government is being placed in a position of total isolation from knowledge of what its real choices are. The Government is practically stuck with the short-list because there are no means of knowing what the alternative to the short-list actually is. For the Government to take a look at the short-list and say these three are not much good and for it to ask the Attorney General to go and find somebody who is good seems to be the only circumstance in which section 40(3) could have any application at all. I do not think that is a satisfactory means of deciding who should be on the Supreme Court.


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