Michael McDowell (Independent) | Oireachtas source

It is obvious that Senator Craughwell was drawing an analogy regarding what happens when one has cascading vacancies. That is what we are now dealing with. It is introducing an artificial and undesirable delay to the process of appointment to judicial office to stipulate that a Government which decides to appoint a judge to another position in the Judiciary would not be able to decide to appoint another person to fill the resultant vacancy. That was the practice followed when I was in Cabinet and it worked well. It was not a question of cronyism or anything of the sort.

For instance, if the Government was minded to appoint to the position of ordinary member of the Supreme Court a member of the Court of Appeal who specialised in criminal matters and was experienced in criminal trials and criminal appeals in order to give the Supreme Court day-to-day, hands-on experience of the criminal process rather than solely being composed of civil, administrative and constitutional lawyers, that appointment would remove a specialist in the area of criminal justice from the Court of Appeal and weaken that court pro tantountil that position was filled. It is perfectly reasonable to expect the position of a member of the Court of Appeal with experience on the criminal side who was appointed to the Supreme Court by the Government to be filled through the appointment of a criminal lawyer from the High Court or solicitors or barristers profession in order to ensure a properly balanced Court of Appeal.The point I am making is that those are the types of decisions the Attorney General and the Minister for Justice and Equality should bring to Cabinet. They should say that if they are appointing Ms Justice Bloggs to this particular position, they are going to need somebody of the same kind of approach or calibre of that judge to remedy the vacancy they are thus creating in the court from which she is being appointed. Those are real day-to-day considerations for the Attorney General for the proper operation of the Judiciary, and the like.

There is nothing wrong with the principle which exists at the moment that the Cabinet, in considering whether to fill one position, also addresses its mind to dealing with the consequences of its decision for the court from which the appointment is made. There is nothing wrong with the Cabinet addressing its mind to that and it works well. However, what will be wrong is if that kind of process becomes elongated and a whole lot of civil lawyers, for instance, see a vacancy in the Court of Appeal arising from the appointment of one of its prominent criminal law experts to the Supreme Court, and they waste their time putting in applications for a job which the judicial appointments commission will not take into account. While the Government may want a particular balance in the Court of Appeal, the criteria in the Bill that the judicial appointments commission is expected to apply do not require it to consider what the Government might or might not want to achieve by consequential appointments.

I am strongly of the view that to introduce this chain reaction to the - I will not use the term "promotional" - consequential vacancies in the superior courts is a very big mistake. It means that, at the most ridiculously optimistic, one could have six to nine months of delay in filling consequential appointments down the ladder. That is not in the interests of the Judiciary. On the last occasion, I mentioned to the Minister the plea from, I think, Mr. Justice Kevin Cross in the High Court and the plea from the President of the Circuit Court in regard to the fact they are being asked to labour with inadequate numbers in their courts. However, this is recipe for further inadequacies on an institutional basis going forward.

For instance, if an ordinary judge of the Supreme Court is made Chief Justice, I do not see why that should mean the Government should leave the vacancy thereby created as ordinary judge of the Supreme Court vacant for a number of months while the judicial appointments commission applies its brain, its processes and its interviews to filling that position. It is going to damage the Supreme Court and the expeditious discharge of its workload that such built-in delay is contemplated in this legislation, and the whole trickle-down effect is as I have described.

I am strongly of the view that the present flexibility which allows the Government, when it advises the President to appoint any member of the superior courts to any other office in those courts, and at its discretion to further advise the President to appoint any other member of those courts to the vacancy thereby created without going back to the commission, is a sensible and reasonable arrangement, the absence of which in the Bill will create serious delays, difficulty and waste of time. Any serious Government would have in its mind the consequences of there being a vacancy in the Supreme Court consequent on one of the members of that court becoming Chief Justice. Therefore, any serious Government should be in a position to say this gives it an opportunity to appoint Ms Justice so-and-so or Mr. Justice so-and-so to that position. It can say that is the balance it wants and it does not want to waste the commission's time by asking for its advice or for it to give a shortlist of three, because that is the kind of decision the Government wants to make and that is the balance it wants to re-establish in the court as a consequence of its decision that day. That is what this section is all about. I plead with the Minister to heed what I am saying because, in the end, we are going to have further delay and further waste of time.

The other thing is that the Minister seems to consider that it is great to have transparency and great to have everything open to everyone, and that is supposed to be fair. However, if the Government is going to have a serious process, and if it is going to ask members of the Judiciary, members of the legal profession and legal academics to prepare their case for appointment to these vacancies, it is asking them to undertake a lot of work. This is not just a case of filling in an application, ticking four boxes and saying how long the person has been a lawyer, whether he or she likes animals and a few other tick-box things. They are being asked to make the case for their appointment. The Government is saying to a professor of law in Trinity College, UCD or UCC that it is inviting that person to seriously put himself or herself forward for a position of this kind. It is saying the same to members of the Judiciary, who have a huge caseload, to each put their case together to be given this position, rather than one of their colleagues. It is saying the same to a practising barrister or solicitor who is looking for an appointment to the superior courts. It is saying, "Do not just spend the weekend chewing a pencil. This is going to be a serious process." If the person is going to be treated fairly and not just be knocked on the head by some outside expert who says he or she is not even recommending that this person be considered further, then there will be an interview and that person will go before some interview panel and make his or her case. That takes time, commitment and preparation.

I remember, from when I was in the Minister's Department, promotions within that Department. The amount of time the serious candidates for the seriously senior positions put into preparing for interview was very considerable. It was not a matter of saying, "The Minister will recognise my name", or "Sure, I have been here 30 years and I am the obvious candidate." They put in a huge amount of work, considering what a fair interview was likely to ask them about, such as how well they will perform as leaders of the Department and what their agenda is for the Department. We now know that one can get the senior position in the Department of Justice and Equality from outside the Department but somebody in a different Department who wants to be considered for Secretary General has to put a huge amount of effort into preparing for that interview. It is not something they just do on the back of a beer mat and say, "I will stick my name in and see how I go", and then just wander into the interview and give a few off-the-top-of-the-head views about what they would do in the Department of Justice and Equality. They have to study the position they are looking for.