Michael McDowell (Independent) | Oireachtas source

The words "function and duty" are carefully chosen. The amendment goes on to provide that, in advising the President on appointment to judicial office under Article 35 of the Constitution, the Government will "advise in accordance with its own judgment". That must be the case. It must be the Government's judgment, based on its duty to do the right thing by the people and not to be shoehorned by a series of legislative obstacle courses and hedges into doing something with which it is not comfortable. The appointment of any person who is eligible to be appointed to judicial office must be done in accordance with the Government's own judgment and preference. That formulation in our proposed new section spells out the constitutional provision or position, 100%, whereas the conflation of mistaken and chaotic procedures and provisions keeping the Government in the dark, which this Bill now contains, is designed to do the opposite. It is designed to get the Government to defer to the views of this commission because difficulties lie in the way of following its own instinct and judgment in accordance with its constitutional duty.

I do not believe that the lines proposed to be deleted save this Bill from unconstitutionality because of the other measures in the Bill to which I have referred. I also do not believe it is right to ask sitting members of the Judiciary to spend of half of their lives sending off applications to a group of people who cannot signify to the unsuccessful applicants what it was about their application that was unsatisfactory. In fact, that would be even worse. Even if there were to be some kind of feedback system for dissatisfied judges, in terms of the commission not liking their approach to A and B, for example, are such judges to change their tune in order to send in a more appealing form the next time, emphasising something about themselves or deleting some view that they may have conveyed, by innuendo, to their detriment on the previous occasion? That is all very wrong for serving members of the Judiciary because it compromises their independence.

When it comes to appointing judges, one might well say that one is not going to appoint Ms or Mr. Justice So-and-So because when it comes to personal injuries damages, they behave like Santa Claus or the exact opposite, that they are so mean that one does not want them on the Bench. That is something that the Government might well decide but it is not a decision, under the criteria set out in this Bill, for the commission. The judicial policy of a judge is a matter of huge interest to the Government on occasion and in particular, with regard to the Supreme Court. The general stance, outlook and predisposition of a judge on social and legal issues and jurisprudential matters may be of serious concern and are very serious and totally justified criteria on which to judge an individual's suitability for appointment to the Supreme Court. A person could be highly intelligent but quite reactionary, for example. He or she may have served on the High Court for the past five or seven years and demonstrated that this is the kind of judge he or she is but the Government may decide, so be it, the judge is independent and as long as he or she is not behaving in a manner which would warrant his or her removal, it is stuck with that judge. That is what the independence of the Judiciary is all about. FÌat jûstitia ruat cælum.

However, if it comes to an appointment to the Supreme Court, one can bet one's bottom dollar that any Government worth its salt would look at a person who, by virtue of his or her judicial record, has been of one predisposition or another and ask itself if he or she is the kind of person it needs on the Supreme Court. It might well be that the Government decides to put the legal contrarian onto the Supreme Court to balance up the attitude of other members but that is a decision for the Government to make. This is a hugely important criterion for an appointment to the Supreme Court but it is one which the commission envisioned by this Bill may not broach. The commission, which has a lay majority, cannot start evaluating judges by reference to their judicial record. If the commission is asked to make a shortlist of three for a vacancy on the Supreme Court, it cannot ask Mr. Justice Boyhan, for example, why he decided four cases in a particular way before shortlisting him.It cannot ask: "Why did you decide them in the way you did? We find that slightly perplexing." The Cabinet, behind closed doors, listening to the Attorney General and the Minister for Justice and Equality and making up its own mind collectively, can say; "To be honest, we prefer to appoint somebody else." That is perfectly right and, by the way, it has happened and I hope to God it will happen in the future. The Supreme Court is the interpretative court of the Constitution and this, by its very nature, affects the complexion of that court, its weight and balance and, to some extent, its direction. Those are issues on which the Government is not merely accountable but has a duty to apply its own judgment, and to make the appointment as appropriate. I am convinced, therefore, that the idea of putting a statutory body, which cannot take those matters into account, and will not be doing so, in a position where it can provide a shortlist to the Government and keep the Government in the dark as to the people it excluded in composing that shortlist, is a knife at the heart of constitutionality. It is wrong, and it is wrong in principle.

The Minister may think the existing subsection in section 41 preserves that right of the Government but it is hedged around all sorts of other statutory obstacles to make it difficult for the Government to exercise its own constitutional function in judging the merits and demerits of all who are eligible for a position. He may think it may save the day but my guess is that if this matter comes to be seen in its entirety, especially in the context that every senior judicial appointment and consequential vacancy appointment has to be the subject of this procedure, it is deeply suspect from a constitutional point of view.

I notice that a very strange situation is later provided for. I do not want to be disorderly or to stray into subsequent sections too deeply but it is relevant to the consideration of this point. One of the weirdest aspects is that if the commission decides it does not want to make a recommendation at all, a process of re-advertising the position has to be engaged in as a mandatory step. It is not that the Government at that stage is free to ignore the situation; it must cause the commission to re-advertise a vacancy for which it has made no recommendation.

I hope that in making these comments, even at this late stage, I can convince the Minister that the Bill needs the proposed revision of section 41 to be inserted and the deletion of section 40(3), which is a tattered, fraying, shrivelled fig leaf that does not preserve the constitutionality of this legislation.