Michael McDowell (Independent) | Oireachtas source

I move amendment No. 86h:

In page 28, line 29, after "office" to insert the following:"(other than the office of the Chief Justice, President of the Court of Appeal, President of the High Court, President of the Circuit Court or President of the District Court)".

One has to read section 41 to see where this fits in. The section states:

(1) Subsection (2) applies where—(a) more than one judicial office in the same court stands vacant, or

(b) the following conditions are satisfied—

(i) the Minister reasonably apprehends that more than one judicial office in the same court will stand vacant, and

(ii) the Commission has received a request of the Minister (which request shall be addressed to the Commission and which, by virtue of this subsection, the Minister has power to make) that the recommendation referred to in subsection (2) be made.

(2) Where this subsection applies, the Commission shall, in accordance with this Act, recommend to the Minister, in respect of the judicial offices concerned, the names of such number of persons as is equal to the relevant number ranked in the order of the Commission’s preference (and that expression of preference shall not make any distinction between the several vacancies concerned).

(3) In subsection (2) "relevant number" means the number obtained by multiplying by 2 the number of vacancies (or apprehended vacancies), and adding one to the product.

(4) Nothing in subsection (2) shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge.

Under the section, as currently drafted, if there is more than one vacancy in a court, the Minister shall signal to the commission that there is more than one vacancy or there is likely to be more than one vacancy. This could be the case where there are two people approaching retirement age and so on. In those circumstances, the commission, instead of short-listing three people, uses what is known as the "relevant number", which is the number obtained by multiplying by two the number of vacancies or apprehended vacancies and adding one to the product. For instance, if it were the case that there were two vacancies anticipated in a court, the Minister could signal to the commission that he apprehended that there are two vacancies coming up in, say, the Circuit Court and in those circumstances, instead of sending three names forward, the commission should multiply two by two and add one, which means the relevant number would be five. Likewise, the figure would increase to seven if there were three vacancies in a court for whatever reason.

In regard to section 41(1)(a), where more than one judicial office in the same court stands vacant, the question that arises is whether that includes the position of Chief Justice, President of the Court of Appeal, President of the High Court, President of the Circuit Court or President of the District Court. The purpose of amendment No. 86h is to provide that if one of the presidencies is the subject matter of a vacancy, that vacancy is not subject to the requirement to multiply the numbers as would be the case in respect of an ordinary member of the court in question. In other words, if the Minister apprehended that the President of the District Court was retiring on a particular date and also that a District Court judge in, say, County Kerry, who is not the president, was retiring on the same date, the Minister would not ask the commission for only five names. As such, in those particular circumstances the multiplying rule would not apply. This proposal would improve the Bill.

At the other end of the spectrum, if the position of Chief Justice is to be filled and so too the position of an ordinary member of the Supreme Court, providing that a shortlist of five should be provided is not what the legislation should do. There should not be a consolidated list of five in those circumstances on the basis that one of the vacancies is for Chief Justice and the other is for an ordinary member. I am interested in hearing what the Minister has to say about the amendment proposed by me and Senators Craughwell and Boyhan. It seems to me that it makes eminent sense.