Michael McDowell (Independent) | Oireachtas source

I wish to draw the attention of the House to what is provided in section 11(8), which we have already discussed. Section 11(8) provides for the functions of persons who can be appointed under section 11(7) as persons, consultants or advisers. Section 11(8) provides:

Any contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (7)may enable the person, consultant or adviser to—(a) advise and assist the Commission in its consideration of applicants at a preliminary stage in the course of the selection procedures, and

(b) provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures,but shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing (other than a thing which facilitates such performance).

The Minister is insisting that members of the Judiciary, for example, those at High Court or Court of Appeal level, can only effectively become ordinary judges of the Supreme Court by applying to the commission under the terms of this Bill. Given that is the policy position, it occurred to me that it was absolutely appropriate to make very clear that nothing in section 11(8), which is the section I have just read out, shall be construed as authorising the commission to appoint any person, consultant or adviser to evaluate or assess the suitability of any person holding a judicial office for appointment to any other judicial office or to advise the commission in respect of that matter. What does this mean? It means that under no circumstances can a sitting judge of the High Court or the Court of Appeal be sent to or have his or her curriculum vitae evaluated by a person who is not even on the commission by way of a suitability test.

We cannot accept this proposition that a sitting High Court judge has to be evaluated by an outside person who will then submit a report to the commission as to his or her suitability. Are we going to oblige sitting senior members of the Judiciary, who are day in, day out functioning as members of the High Court, to be vetted by people who are not even on the judicial appointments commission? Are we going to oblige them to be the subject of a report as to their suitability? If we cannot accept that, then the mind boggles as to what is going on in the collective minds of those proposing this legislation. Is it to be the case that a Court of Appeal judge is to be evaluated as to his or her suitability to be made an ordinary judge of the Supreme Court by some outside expert engaged by contract with the commission? This is the question. There is either a "Yes" or "No" answer to that. If the Minister cannot accept this amendment, I wonder whether we are living in an "Alice in Wonderland" world in which sitting members of the High Court or the Court of Appeal would have to be evaluated by some third party and would be the subject of a report to the commission. It seems to me to be a strange scenario. Therefore, let us rule it out and say that is not the purpose of the legislation and that it can never have the effect that a judge should be evaluated by a third party or be the subject of a suitability preliminary screening test to be promoted to the Court of Appeal or the Supreme Court.

I hope other Members will support me in this amendment and that the Minister will accept it. Rejection of the amendment raises many questions about the motivation of those who are proposing this legislation.