Michael McDowell (Independent) | Oireachtas source

A few of them, a tiny minority of the commission. In any event, that is my personal view. Just so the Minister is not under any illusion, I am not in favour of a self-perpetuating judicial elite and I would not be happy if the Minister reduced the number of lay people to three or two and said that was okay. It is the rest of this Bill that I am deeply unhappy with from a constitutional perspective in that the Executive's function is being effectively transferred to a judicial appointments commission, and even though the fig-leaf to which the Minister refers is left there, every possible impediment is put before the Executive in exercising its independent choice by making it almost impossible to find out who is available, who has applied and all of that.

The Minister said he hopes it will only be in exceptional circumstances that the recommendation of the commission in regard to judicial appointments will not be followed. What the Minister forgot, when he challenged us to say from past experience what the problem was, is that it has never, ever been the case that the Executive's right to appoint or to recommend for appointment a member of the Judiciary has been in any shape or form the subject of any participation by JAAB. That is the point the Minister is forgetting. This is the first time the members of the Judiciary themselves are being told they must apply to this commission. In the past the Government could say there is a vacancy in the Supreme Court and it would like to look first to the Judiciary to fill that position, it is not involving JAAB in the process at all and does not propose to do so, and it proposes to nominate a judge of the Court of Appeal or the High Court to fill that vacancy. That is the position that exists at the moment and it has never been the occasion of cronyism.

The Supreme Court has served this country extremely well. On a point where I have some experience, although I do not profess to be infallible on the matter, the Government of the day, in deciding who it wants to be on the Supreme Court, is making a policy decision about the future direction of that court. One cannot simply say that there is a person who is brilliant on trademark law or international law and, on some kind of calculus that might or might not impress other judges, the judicial appointments commission or anybody else, say that person on merit deserves to be in the Supreme Court. One cannot do that. One cannot say someone is a brilliant lawyer with a brilliant mind that can solve the most incredible legal conundrums with great facility, and that is the person who on merit should be on the Supreme Court. If the Government comes to the view that Ms Justice so-and-so or Mr. Justice so-and-so is a brainbox, and has been there for donkey's years, the Government still has to decide whether that person's appointment to the Supreme Court directs the Supreme Court in the policy direction of that Government with regard to how the Supreme Court should look. It is a political decision with small "p" and with no party attached to it, as it has been in the past. I participated in that and I believe the Minister has participated in that. There is no question of saying one is appointing this person simply because he or she is intellectually capable or objectively fits criteria which are set out in a statute. It is the Executive's function to make these decisions and to apply its political judgment with a very small "p" to such appointments.

Nobody should be under any illusion but that that is the case. That is the right of the Executive and is why the Constitution gives this function to the Executive. Therefore, when the Minister says that I am worried about a lay majority, he is wrong. I am not worried about the lay majority on this occasion; I am worried about saying to sitting members of the High Court and Court of Appeal that, except in exceptional circumstances, in order to be appointed to the Supreme Court, they must be short-listed by some group outside Government. That is my objection. It is a rooted, radical objection to what is happening here. I believe the Government is entitled to say, for example, there are 12 people who it considers likely candidates for the vacancy in the Supreme Court which has just emerged, but its judgment is that Ms Justice so-and-so or Mr. Justice so-and-so is the person it wants to appoint. It does not need them to start filling out forms describing where they went to school or to prove they are representative of society as a whole. It does not care about his or her gender, in particular. It has different criteria, for example, it is concerned that the court is taking a conservative or a liberal direction.

It was widely thought, and I think I am on safe ground on this, that some decades ago the contenders for the position of Chief Justice were too activist as members of the Supreme Court and it was generally thought that William O'Brien Fitzgerald was selected to move the Supreme Court in a slightly more conservative direction. That was what was thought at the time. There were eminent jurists on the Supreme Court and the Government at that time, apparently, believed that it wanted a more conservative direction to the Supreme Court, and that was its choice. It has nothing whatsoever to do with the judicial appointments commission, which has no right to tell the Government, "By the way, it should be Mr. Justice Bloggs or Ms Justice Bloggs."