Michael McDowell (Independent) | Oireachtas source

The Minister is living in a fantasy world if he believes there is something improbable about consequential vacancies arising in the Judiciary when appointments of a senior kind are made. If one was going down to Paddy Power to bet that an outside person will be appointed and there will be no trickle down effect of a vacancy in the position of ordinary member of the Supreme Court, as a betting man I would say the odds would be about 1/8 or 1/10. The Minister may offer better odds and put his sign up at Leopardstown Racecourse and get different odds. I am saying, however, that there is nothing fanciful about saying that, as a matter of probability, other judges will move up, not in some kind of grotesque, tap on the shoulder, domino effect process but simply because they are the people in whom the Government is most likely to have confidence when making a particular appointment.That is the position. Of course it is possible that Josephine Bloggs or Joe Bloggs, barristers with ten years standing from wherever, can put in an application and get one of these positions but the chances of them doing so and being appointed are small. They are, by definition, less likely to be appointed to these positions than people who have established a track record, proven their worth, demonstrated their judiciality, impartiality and suitability for judicial office, and a proven capacity to deliver learned judgments and to listen patiently to lay and professional persons appearing before them. It is to them that, in all probability, the responsibility for filling judicial vacancies at higher levels in the court will fall.

There is nothing whatsoever improbable about a cascade effect. I ask the Minister to retract the idea that I am being extravagant in my language. I am being pragmatic. I am putting forward the likelihood that if there is a vacancy in the Office of Chief Justice, an ordinary judge of the Supreme Court will fill that job. It is not carved in stone anywhere but it is likely. I do not want to put bookies' odds on it but it is a likely outcome. It not an improbable outcome or an odds against outcome; it is a likely outcome.

If the Minister is going to say to the present Judiciary that a vacancy in the Supreme Court, as an ordinary judge, is not likely to be filled by a judge of the Court of Appeal or the High Court, I would love him to justify that in public and say that with this new system it is not going to be likely anymore that those jobs will be filled in that way or those positions are not filled in that way. He should say that and stand over that. I appeal to the Minister to put his hand on his heart and say, "In future, when this new Bill comes into effect, it is improbable that a vacancy in the position of an ordinary judge of the Supreme Court is going to be filled by an existing judge of the superior courts." If that his position, then say so. I am not as kind-hearted as Senator Craughwell on this matter. I believe it is self-evidently not the case that it is improbable. It is probable and, therefore, I say that if the Minister appoints an ordinary judge of the Supreme Court to the position of Chief Justice, it is highly likely that there will be one, two or three consequential appointments among the Judiciary rather than just some person coming in at the bottom and there being no vacancy. It is highly likely that that will happen, although not impossible. I look back over my own career and experience as a barrister to the number of occasions where somebody has come in from outside rather than a judicial appointment, made among the Judiciary, and in my lifetime as a practising barrister, which started in 1974-----