Gerard Craughwell (Independent) | Oireachtas source

On amendment No. 88, subsection (3) currently states:

If the Commission cannot, in accordance with this Act, recommend to the Minister any names of persons to fill a judicial vacancy, it shall invite, through means of advertisement, the making of applications by persons to be considered for selection, that is for their being selected to be the subject of a recommendation for appointment to judicial office, at three-monthly intervals until such time as the Commission is satisfied, subject to section 35 and section 36..."

I understand where the Minister is coming from and I have acknowledged that I have seen this happen in education, for example, where it has been almost impossible to find a suitable candidate to fill a principal's position. I am concerned that the commission would find itself in a position, having advertised a vacancy for, say, an ordinary member of the Supreme Court, where it failed to find three suitable candidates. I am mulling it around in my head, in particular the fact it would advertise, then advertise again in three months and then again in three months thereafter. I wonder what our media would make of the fact. First, there is the point the commission would have failed to find suitable applicants in one or two rounds of advertisements. Second, let us say we go to a third advertisement, which means a period of six months, and we then find two or three people ready to make a recommendation to the Minister. What would the media make of that judge? The first question would be whether he or she applied for the first advertisement, whether he or she applied the second time, and whether he or she is some sort of, for want of a better description, yellow-pack judge, a judge of last resort, and that we could not find anybody until this person came along.

There is an inherent fairness in what the Minister is trying to do and if that is the way the Bill was originally written, I would support him on it. However, it gives rise to difficulties in the world we currently live in, where people are subjected to the most horrendous public scrutiny, sometimes based on nothing. We could find ourselves in a situation where the commission, having gone through the procedures, advertised the position and set out the criteria, then failed to find three names out of all the people in academia and the legal profession who are practising in any of the courts. That would be a matter of great concern.

The Minister might clear up one point. In putting the advertisement in place, the commission would be within its rights to set out certain criteria for the position as advertised, if I read the Minister right. Could the commission include in its advertisement, shall we say, the more human traits, rather than the academic or the experiential? We spoke here last night about a situation where a Supreme Court was weighted with more conservative judges and there would be a need to balance the situation, and we see in the United States all the time where a more liberal judge or a more conservative judge is needed to bring balance back to its Supreme Court. Will the commission have within its rights, or will the Minister have within his or her rights when he or she puts a request to the commission, the facility to say there are, for example, too many conservative judges and we need a liberal, or that we do not have judges with sufficient expertise in criminal law or who are capable of hearing cases in the Irish language? While the Irish language and the criminal law are more academic aspects, there is the question of the dispensation of the person being looked for with respect to their liberal or conservative views.I would have thought that, as Minister for Justice and Equality, he would want to have an eye over the Four Courts with respect to its views on social issues, for example, and, specifically, whether there were too many conservatives or liberals down there. The Minister may correct me if I am wrong. I am happy to come back to him when I have heard his words on that. Is that something that, as Minister for Justice and Equality, he would want to be able to do when we select judges? Is it something that the procedures that would be followed by the commission would be able to put in place? It is one area where we could find a situation that despite the fact there were a number of eminent and learned judges or barristers applying for the position, they did not fulfil the human criteria he was looking for with respect to their liberal or conservative views. I would be interested to know where we stand on that. I will wait for the Minister to make his point.