Michael McDowell (Independent) | Oireachtas source

-----will be by going through the appointments commission. In 2004, there was a very good reason for the Judicial Appointments Advisory Board, JAAB, process not being applied to serving Judiciary, namely, that the Government did not have to heed the advice of the Judicial Appointments Advisory Board regarding the merits or demerits of a High Court judge seeking appointment to the Supreme Court. Rather, it could make up its own mind in that regard.

The problem with this legislation is that it does not simply provide that there be a shortlist. I would have no problem with there being a shortlist. Indeed, many people think the list submitted by the JAAB was far too long in some cases, although for most senior positions it was not overly long according to my recollection, nominating between five and eight candidates on many occasions. The shortlist is not the problem. Rather, the problem is that we are faced with an attempt to reduce to almost zero the constitutional function of the Executive. One of the problems in that regard is that there is a tendency, particularly among legislators - and we should be conscious of it - to think that Executive discretion is wrong or suspect or that its exercise in the past has been unfortunate or suboptimal or that if JAAB had been given the function of vetting the appointment of judges to promotional appointments, to use that terrible phrase, there would have been a better outcome. I reject such arguments. The Legislature has no business treading so firmly on the constitutional right of the Executive to make decisions of this kind. If the Minister is happy to insert a safety valve, as he has here and there in the Bill, to the effect that nothing in the Bill constrains the Government in how it exercises its role of advising the President on appointments to the Bench, but that is made almost useless by these circumscribing provisions, then we are going down the road of taking from the Executive nearly all of its discretion.

The Minister and Senator Norris have discussed reverse canvassing. That is not what we are dealing with. The function of the Executive is to make its own decision on matters such as appointing judges to the Supreme Court. Its function is to make its own decision on the merits and demerits. It may take advice from whomever it chooses but it is duty bound to exercise its judgment and do what it believes is best for the country and the Supreme Court in making such appointments. The unconstitutionality arises in that the reduction to the phrase "reverse canvassing" of a process whereby an envoy of the Government goes to a serving judge or an eminent solicitor or barrister to convey the wish of the Government that the person apply for the job and the suggestion that that circumvents openness, transparency and an even playing pitch, puts those concepts on an equal par with the Executive's right and duty to make the best decision it considers appropriate in respect of particular appointment.

It is not open to this House to tell the Cabinet that criteria it may use are not good enough, that the House wants a system whereby everybody on the Bench who will be considered for promotional appointment must have been recommended by the judicial appointments commission and that the Government, even if retains its residual power on paper, should be rendered incapable of exercising that power due to ignorance and statutory provisions. If that is the philosophy behind this legislation, let that be said. The Minister has effectively said it is the philosophy of this legislation. Let that be made clear such that if the constitutionality of this scheme of reform, as the Minister calls it, is considered by the courts it would be very clear why the Bill is drafted in the way it is, why it contains its particular provisions and why certain amendments which sought to uphold the rights of the Executive in making judicial appointments were rejected.

I make no apology for tabling this amendment because it has done exactly as I hoped, namely, it has drawn out the Minister on how he sees judicial appointments being made in the future. He does not hope that they would all be made through the judicial appointments commission system. Rather, he is saying that the provisions of this Bill are intended to ensure that that is the case. The corollary of that is that there will be no judicial appointments outside that system because it will be so difficult for the Executive to work out who is available and who is not, who was rejected and who was not and to exercise its own judgment on the matter. Simply, it will not be worth the candle.

If one wishes to cut off the means of communication whereby the Executive through its envoy, whether the Attorney General, the Minister for Justice and Equality or the Taoiseach, inquires of a person who may or may not be a serving judge as to whether he or she would accept an appointment to the Supreme Court, the Court of Appeal or another court - which is not reverse canvassing - one is telling the Executive that its power and discretion will be radically cut back to practically nothing or to meaninglessness. That is what this concerns. That seems to be the admitted policy behind the Bill. I am not impressed by the suggestion that it is a level playing pitch. This is not a game which has a level playing pitch.We are dealing with Executive discretion as to who should or should not be appointed to a vacancy in the Supreme Court. There does not have to be a level playing pitch between two people because the Executive may have a very clear view that it wants that person for that job and not one of three other people whom it does not particularly want for the job. It could want a particular type of person or a person of a particular outlook. A level playing pitch does not come into it.

This system is not transparent because as the Bill now stands, and subject to the amendments that have yet to be considered, nobody will know who was successful or unsuccessful and who was rejected time after time. Nobody will know any of these things, least of all the Government, and the Government most of all will be kept in the dark on the issues. I have an absolute rooted opposition to the policy the Minister has just enunciated and the philosophy that underlies the Bill. There is simply nothing wrong with the Government communicating with somebody to inquire whether he or she would accept a position in the Supreme Court. It has been describe as reverse canvassing. It is part of the function of the Government to make inquiries that will make its decision work. It is a necessary outcrop of having the discretion to appoint an eligible person to the Supreme Court to be able to communicate directly with that person and ask whether he or she is willing to take the position.