Michael McDowell (Independent) | Oireachtas source

What the Minister has said is half encouraging. However, I have to say that, on the other hand, I do not know what the gloss about my motivation has to do with this.Nor do I accept it is in the wrong place. The reason I say it is in the right place is we are now dealing with a large series of amendments centred on the issue of whether serving judges should or should not be forced to go to the judicial appointments commission for appointment to the position of ordinary judge of the Court of Appeal or the Supreme Court. It is in this context that the amendment arises.

If the Minister keeps rejecting all efforts to exempt the Judiciary from having to apply to the commission for appointment to a position as an ordinary member of the Supreme Court, then of course, if he evinces this attitude, we must look back at the text of the entire Bill to see what this section actually means. One of the things it potentially means is that the envelopes of all of the applicants for consideration will be sent off to some person, consultant or adviser, before the commission actually processes them at all, to give a report on their suitability. I regard this as repugnant. It is bad enough that the Minister should stick to what I believe is the wholly wrong-headed view that every member of the High Court or Court of Appeal who wishes to be considered for appointment to the position of an ordinary judge of the Supreme Court should have to apply at first instance to the judicial appointments commission but if this entails, as a preliminary step, some person - and, as Senator Norris said, we do not know who this person will be but he or she will be chosen by the commission - going through the applications and making a preliminary check as to suitability, and this process is envisaged for sitting members of the Judiciary then, as I said earlier, all common sense has fled from this entire procedure.

I have said it before so I will not repeat it at length but there is a serious constitutional issue when it comes to the interference this procedure amounts to in the function of the Executive, in the form of the Government deciding to fill a position of ordinary judge on the Supreme Court. I have said this before and it does not really require repetition. What is wrong with the Bill, and what is fundamentally flawed about it, is the commission will be required to apply entirely different criteria to the consideration of such an appointment from that which the Government is required to apply. The Government is entitled to say, as I have said before, that Mr. Justice So-and-So or Ms Justice So-and-So is conservative or liberal, or has one set of attitudes on social issues, European issues, civil liability, judicial activism or whatever, and then state on that account it wants or does not want that person on the Supreme Court. This is the type of decision the Government of the day makes. The judicial appointments commission will not be entitled to evaluate candidates by these very criteria. It will be obliged to use its so-called "merit" regarding representation of the diversity of society, gender balance or other criteria in making a recommendation. It will be obliged to devise a three-person shortlist by reference to criteria that have nothing to do with the Government's view of the matter. Merit in this context can mean a host of things. One can be a very meritorious lawyer and yet still be somebody whom the Government would prefer not to be on the Supreme Court, or it might prefer a less meritorious lawyer to be on the Supreme Court, because of that person's attitude.

It is absurd and nonsense that all judges who want to be considered for such an appointment will be forced to go through hoops in the judicial appointments commission process, in which criteria are applied to them that are irrelevant to the Government's choice. In particular, if we force all judges through all of these hoops, the very notion they in any sense should be open to evaluation by non-members of the commission as to their suitability is especially repugnant.

The Minister says he can see some merit in the amendment, depending on my motivation for moving it. I do not know what question mark he has over my motivation for moving the amendment. To me it is so blitheringly obvious that it is inappropriate that third parties should be looking at judges and sending in reports to a commission on their suitability for appointment. The wider point is who, in the name of goodness, outside of the commission will look at an appointment as an ordinary judge of the Supreme Court and sit down and start ticking off people and saying "yes", "no", "suitable" or "unsuitable" before the commission even sees the application? Who will carry out this function? What possible justification is there for this function being carried out? Who is there? Is there some genius out there who will be given €5,000 or €500 per evaluation and who will state this person would make a good member of the Court of Appeal prior to the judicial appointments commission actually seeing the application to consider it? It will get a preliminary report. Is a position on the Supreme Court or Court of Appeal really going to be the subject ever of an evaluation of this kind?

I must say I find it very strange that the Minister should persist with the notion that serving judges should be sent through any of these hoops or evaluated by criteria that are simply none of the business of the judicial appointments commission and entirely the business of the Executive.

If I propose something that is plain simple common sense, I cannot see how my motivation comes into it, unless the Minister thinks-----