Charles Flanagan (Laois, Fine Gael) | Oireachtas source

The judgment was made by the Government, having considered all aspects of the issues to which I referred. The heart of the matter is that as far as section 39 is concerned, anyone who wishes to be considered for appointment to judicial office shall make the application to the commission. That specifically includes a person who may be a serving member of the Judiciary. This issue has dominated our debate here this afternoon in the same way as it has on numerous occasions, going right back to the summer. We have already discussed how the purpose of section 37, which has been mentioned by Senator McDowell, is to disapply from the process of a recommendation, to paraphrase him, the three top judicial positions. I will do that in respect of section 44 and I will do so for reasons that I referred to earlier this afternoon, namely, because they have a somewhat separate position in terms of the role, function, obligations and day-to-day work in which they engage being somewhat different from what might be described as an ordinary member of the court. I intend coming back to that. I ask Senator McDowell for his support. I feel he has indicated that he would be minded to support that, albeit in a way that does not necessarily accord with the range of appointments that he would wish to be included under such a section.

Earlier this afternoon, Senator McDowell referred to the fact that he did not at any stage see any reference to any statement, message or any disposition on the part of any member of the Judiciary or any group as to their position on the new process.I remind the House that the Judicial Appointments Review Committee, which was formed by senior members of the Judiciary to make submissions on the new process and whose membership included no less an officeholder than the Chief Justice, stated:

Where it is proposed to fill a judicial position by promotion, including the positions of Chief Justice and Presidents of the other Courts, the candidates should also be subject to the advisory process of the Judicial Appointments Advisory Board. Applications from serving judges to advance between different courts should be processed through application to the Judicial Appointments Advisory Board.

The Judicial Appointments Advisory Board, JAAB, is the body now giving way to the new, reformed and modern procedure. I accept, of course, that we are no longer talking about the JAAB but we are modernising, further developing and enhancing the independent process. It seems quite clear that the most senior judges themselves have recommended in principle that judges seeking appointment, right up to the highest positions, be on the same playing field as a first-time applicant. The Bar Council of Ireland has recommended that the Judicial Appointments Advisory Board process be followed for all judicial appointments, including elevation from lower to higher courts. Others were of the same view.

I have listened very carefully to the points raised by Senator McDowell. I certainly do not doubt in any way his sincerity on this issue, considering his first-hand knowledge as a former Minister for Justice, Equality and Law Reform, a receiving party from the JAAB, and given his former position as Attorney General, who is very much in the engine room of that board. I am not prepared at this Stage, however, to delete what is a key reform intended to cater for the selection processes for judges across the jurisdictions, with the exception of the President of the High Court, the President of the Court of Appeal and the Chief Justice. I am not accepting the amendment, therefore.