Michael McDowell (Independent) | Oireachtas source

I was going to say the Minister has stated he is confident that various things will happen. I am not confident for the following reason. It is not that I doubt in any way the bona fides of the members of the commission, if it is ever established or if it ever comes into operation. Equally, it is not that I doubt that they will appreciate there must be some degree of urgency about their work and they are not free to take lengthy periods of months to do their work in a leisurely fashion. I am not suggesting they will behave in that way. My point, which the Minister should take on board, is that the existing Judicial Appointments Advisory Board, JAAB, to which the Minster adverted, operates only where the Government is not going to appoint a judge. Its current workload, for that reason, is much more limited than the workload of the judicial appointments commission is likely to be. All appointments, subject to whatever happens to section 44, will be commission-based appointments if this Bill goes through. All appointments, bearing in mind the statutory duty that is placed on the Minister in respect of vacancies and anticipated vacancies, will involve the commission deploying its procedures.

There are two points that arise out of that. The workload of this commission is going to be vastly increased over the present workload of the Judicial Appointments Advisory Board. When I was in the Minister's position, the meetings of the Judicial Appointments Advisory Board were relatively short.The members had the various applicants' paperwork, references and the like before them and they did their work in a timely fashion. As I now understand it, this legislation anticipates, although it does not 100% ensure, that every applicant will at least be likely to be interviewed and that the results of the interviews in respect of the successful applications will go to the Government. Unless these interviews are exiguous or pro forma, which would be pointless, they will have to be more or less standardised for all would-be appointees. Following the general pattern of public service appointments, the same kind of questions have to be put to everyone. One person cannot be subjected to a radically different form of interview from that of another person. Issues cannot be raised with one class of would-be applicants that are not raised with everybody else. Applicants cannot be asked to prove their suitability to a different standard compared with some other category of people. These interviews are going to be lengthy and complex things.

There are some points which should be borne in mind. First, the workload of the judicial appointments commission will increase very significantly compared with that of the JAAB, by reason of the extension of its functions to existing members of the Judiciary. Second, the procedures which are to be laid out in the Act, to which we have not yet come, will be a good deal more formalised and are likely to always or nearly always entail an interview process. Third, if the first two points are combined, it is very likely that the period between the Minister requesting the JAAB to make a recommendation in respect of an office and a person being appointed will be lengthened quite significantly when, in the future, the Minister asks the commission to carry out the functions envisaged in this Act. It is not really legitimate to say that the present system gives us a guide as to what will happen in future as regards delay. The present system will be virtually no guide as to what time will be taken in the future.

Bearing that in mind, we then have to face up to the proposition that some form of outer time limit will have to be prescribed by somebody. The question we have to ask ourselves in that regard is who is the legitimate person to set this outer time limit? Should it be the commission itself or should it be some other body? The purpose of this amendment is not to vest that function in the Minister, but to vest it in the Government. The entire Government would fix the outer time limit for a decision on any particular case. The entire Government would do so, bearing in mind that it has a residual right to advise the President to appoint somebody completely outside the shortlist sent forward by the commission to the Government. This right cannot be taken away and this Bill, if enacted, will not do so. Bearing those things in mind, it seems the Government is the appropriate body to make the decision as to an outer time limit. There must be an outer time limit.

It is not by any means unthinkable that the normal timeframe for submitting a recommendation will be of the order of three or four months compared with the present situation with the JAAB, which I presume carries out its functions within six weeks to two months. I hope the Minister will take that on board. It is not unreasonable to think that, because of the increased workload, the increased complexity of the processes involved, and the interviews, we will be talking about three or four months. I am not being alarmist. That is my view of what is quite likely to happen.

If there is slippage due to the pressure of work in filling District Court positions or if some Minister does what the present Minister has indicated he is minded to do and says that six extra judges will be appointed to a particular court, whether the Circuit Court, District Court or High Court, the increased workload for the commission could be enormous. Filling a raft of vacancies such as would arise on foot of such a legislative change could put the commission into a kind of crisis mode as regards its other work. There is a very sound argument to be made for the fixing of outer time limits. I cannot think of any body more suited to fix such limits than the Government and I cannot think of any better way of doing this than that set out in amendment No. 91d. I will make way for Senator Norris to make his position clear in this regard.