Michael McDowell (Independent) | Oireachtas source

I move amendment No. 86g:

In page 28, between lines 25 and 26, to insert the following:

"Right of Government to advise President

41.Notwithstanding the provisions ofsection 40, nothing in this Act affects, limits or inhibits the right of the Government in any case where it advises the President to appoint any member of the Supreme Court, the Court of Appeal, or the High Court to any judicial office in any of those courts, at its discretion, to further advise the President to appoint any other member of those courts to the vacancy thereby created without seeking any recommendation from the Commission.".

I emphasise that this amendment concerns a very significant problem with the legislation.I understand that a senior member of the High Court has today called on the Government to appoint judges. I hope the Minister will hear that call. This amendment goes to the heart of the workability of the Judicial Appointments Commission Bill. It states:

Notwithstanding the provisions of section 40, nothing in this Act affects, limits or inhibits the right of the Government in any case where it advises the President to appoint any member of the Supreme Court, the Court of Appeal, or the High Court to any judicial office in any of those courts, at its discretion, to further advise the President to appoint any other member of those courts to the vacancy thereby created without seeking any recommendation from the Commission.

What am I talking about here? It sounds legalistic and formulaic. The Bill in its present form will mean that when three names come before the Government, and if it elects to recommend to the President one of those three names who is the holder of a senior judicial office, it will create a hole in terms of the position of the judge it has recommended for appointment. If the Bill is left in its present appalling and messy form, the Government will have to notify the commission that it wants to start the whole ball rolling to fill that vacancy.

Let us take an example. Ms Justice So-and-so is an ordinary member of the Supreme Court. She is one of thee people recommended by the commission. The Government says it is going for Ms Justice So-and-so and making her Chief Justice or whatever the case may be. The result is that her position as an ordinary member of that court becomes vacant as soon as she is appointed. Under this legislation, as now proposed, which is quite different from the existing legislation, whereby in those circumstances sitting members of the Judiciary never go near the Judicial Appointments Advisory Board, JAAB, and nothing happens, it is possible for the Attorney General, the Minister for Justice and Equality and the Taoiseach to arrange the business of Cabinet such that if the Government chooses Ms Justice So-and-so for the job, there will be a vacancy and the Government will fill it with someone from the Court of Appeal or the High Court. If the Government makes the decision to go for that particular candidate, there will be a consequential vacancy and the Government will fill it at the same time. This is the way in which the system works at present. If someone is appointed to a senior position, for example, a Court of Appeal judge is appointed to the Supreme Court, the question that then arises is who will be appointed to fill the resultant vacancy. Without going back to the Judicial Appointments Advisory Board, the Government customarily produces three appointments to deal with the situation it has just created. This works perfectly well and ensures there is no undue delay.

This ridiculous Bill, however, if it becomes law, will mean that in such circumstances someone must step on the emergency brake, everything judders to a halt in respect of the position vacated, and the Government must go off through an advertisement process to the commission, and all the members of the High Court and the Supreme Court who are interested in this position must submit further applications to the commission and the whole process must be gone through again, advertising the vacancy among all eligible practitioners and going through the entire panoply of provisions because a vacancy has arisen by a decision of the Government. No one seems to have understood the huge problem this will create. One need not be Einstein to see that if, for instance, a Supreme Court judge is appointed as Chief Justice and, in the end, having gone through the judicial appointments commission, a Court of Appeal judge is appointed to the Supreme Court vacancy and a High Court judge appointed to fill the Court of Appeal vacancy, it will take six months or a year to deal with the trickle-down effect of an appointment. No one has put his or her brain into first gear on this issue. If all these appointments and all the judicial replacements, if I may use that phrase, must go through this system, everything will be thrown into complete chaos because one appointment has a necessary knock-on effect in creating a vacancy, the Government cannot cure that vacancy on the day and it must go off and tell the judicial appointments commission a vacancy has arisen.

The funny thing is that the Bill attempts in another way to deal with situations in which the Minister reasonably anticipates that a position will become vacant. He can ask the commission to advertise the matter and seek applications. This is where someone is coming up to retirement or whatever. It cannot possibly be the case, however, that this applies where, say, one out of three shortlisted persons is a judge and the Minister decides to go for Ms Justice So-and-so and then asks the commission to get on with the job and take applications-----