Michael McDowell (Independent) | Oireachtas source

There was no absence of process. Under the Bill, the process is one involving an absence of judges for long periods and a trickle-down effect whereby a vacancy is created in court after court. There is no absence of process whatever in the former arrangement. The Government would be well advised to ensure that if it creates a vacancy at one level of the Judiciary, it acts smartly to fill that vacancy. The scenario I have drawn of an ordinary judge of the Supreme Court being appointed to higher office, a judge of the Court of Appeal being appointed to fill the resultant vacancy on the Supreme Court and a High Court judge being appointed to fill the vacancy on the Court of Appeal is not unlikely or fanciful. However, the consequence of failing to deal with that and accept this amendment is that if it appoints a judge to higher office, the Government will be dealing with follow-on applications for the following three, six or nine months or more. That is to where this process is bringing us.

On the most recent occasion this was discussed I pointed out to the Minister that the current situation may be preferable to the one he is mapping out. Perhaps it is a good idea, if one creates a vacancy as an ordinary judge of the Supreme Court, to decide to deal with that vacancy. The balance of the Supreme Court may change as a result of the promotion of one of its judges. The Cabinet may appoint a liberal or conservative as Chief Justice and want the balance of the Supreme Court to tilt a certain way and collectively decide to fill the vacancy in a certain manner. The problem with introducing a system with the rigidity of that proposed in the Bill is that the Government cannot of its own accord anticipate any action. It cannot prepare for the follow-on consequences of its decision because it must keep an open mind at every step in the process and must keep inviting people to participate in supplying every vacancy on the sequential ladder of judicial vacancies. This is a retrograde and reckless approach to the process of appointing judges. It will make life extremely difficult if the Government cannot fill the vacancy left on the Supreme Court by the appointment of a Chief Justice unless the fully competitive and open procedure is gone through and everybody is invited to apply for the post. This is not a casual vacancy such as the principal of a school as referred to by Senator Craughwell. This is about our Supreme Court.