Michael McDowell (Independent) | Oireachtas source

Many promotional appointments to the High Court, Court of Appeal and Supreme Court give rise to a domino effect, whereby other vacancies arise. One of the curious things about this legislation is that if, for instance, the Government decides to appoint a judge of the Court of Appeal to the Supreme Court, a vacancy thereby will be created in the Court of Appeal. As the Bill stands, either the Government has to anticipate its decision to appoint an appeal court judge to the Supreme Court and seek in advance that the commission advertises the position in the Court of Appeal or the resulting vacancy has to be advertised. In respect of each of these matters, members of the Judiciary are supposed to put in a separate application to the commission seeking appointment. What I find difficult is that a Government that announces that Ms Justice Blogs in the Court of Appeal is to be made an ordinary judge of the Supreme Court, having discussed with the Attorney General the consequences of making such a decision, cannot say that morning that it will appoint Mr. Justice Smyth of the High Court to the Court of Appeal in consequence. The Government cannot do that. The new procedure will slow everything down and create an unusual situation whereby that position now has to be the subject of this mass circulation of the Judiciary and of mass application by all the Judiciary who are intent on applying.

That is another reason why this clumsy proposed legislation should not be law. One cannot have that situation. The Judiciary needs to function smoothly and Cabinets should be in the position that if they decide to appoint a High Court judge directly to the Supreme Court or a Court of Appeal judge to the Supreme Court or an existing Supreme Court judge to be Chief Justice, there will be a follow-on, domino-like sequences of events which they will want to fulfil. The Government will have to ask each member of the Judiciary who wants to be part of that snakes and ladder process to put in an application, to be considered afresh and short-listed by this commission simply makes no sense. For the Government to received shortlists arising from a vacancy created by the promotion and to go through a process whereby a shortlist has to be devised by the commission based on a process involving interviews and all the rest is just nonsense. This is bad and foolish, and we should not go down this road.

The 36 appointments I mentioned were good appointments and properly made in proper circumstances by a system that is not broken, if it is operated in good faith. To ask individual judges of the High Court, Court of Appeal and Supreme Court, respectively, to apply to outsiders for every promotional appointment within the courts system, especially in the context of what the Dáil has done in sections 47 and 48, in any event is bad law and is designed to create a situation in which the Government effectively is coerced into divesting itself of its judgment, which is vested in it under the Constitution as to what kind of judge or who should be on the Supreme Court. As I have said previously, this is a political decision for the Government in the sense that it is a matter of policy and it is not one on which the JAAB is even asked at present to make a recommendation. It is not one on which its views are in any way relevant and particularly it is not one on which the Government should be curtailed in any way from making its own decision.

I regard my arguments as being reinforced strongly by the points I have made about the Attorney General not being in a position to tell the Government who the unsuccessful candidates who were not short-listed were. I believe all of these factors taken together strongly indicate that this proposed legislation is unconstitutional. That is not a ruse, that is not a wheeze, that is not perpetuating patronage or doing anybody any favours; it is merely upholding constitutional values and the separation of powers.