Michael McDowell (Independent) | Oireachtas source

We have not had a clear picture. It would have been so easy for the Government to table its amendment to section 44 as part of the process. Then we could have had a clear view, when considering section 46, to understand what we were effectively agreeing by reference in the context of the Government's proposal to section 44, but none of that has been done. I do not want to be disorderly or to go back to section 44, but I want to emphasise the importance of the another point.

I do not accept for one minute that the positions of Chief Justice, President of the High Court and President of the Court of Appeal are radically different from ordinary members of those courts. The Chief Justice is primus inter paresbut he or she is not somebody whose function under the Constitution is radically different. The court operates by a majority and the opinion of a judge of the Supreme Court is just as weighty if he or she is an ordinary member of the court as if he or she is the president of that court. The Minister's policy of segregating these three particular appointments, the presidents of the courts, and stating they are radically different is mistaken. They are not radically different and they are of equal importance. Two ordinary members of the Supreme Court can outvote the opinion of the Chief Justice. I do not see that there is a basis for making a wholly different process for three particular appointments when the functional aspect of being a member of Supreme Court is not radically different whether one is Chief Justice or an ordinary member of the court.

Second, judges make law in some respects. The Constitution means what individual judges decide it to mean. As Senator Norris stated, the great majority of people will not get beyond the Court of Appeal. The Court of Appeal, when that amendment was made providing for it recently by the people, is, in effect, the Supreme Court for most people. It is the point at which law will be decided, except in exceptional cases of public importance, such as Article 26 references. The ordinary membership of those courts is of considerable importance because judges make law. They interpret the Constitution, make common law-type decisions, and apply European precepts to Irish law. Although they are separate from the Legislature, they are, in fact, law makers of a different type.

I want to make this final point on this section. If it is considered correct that the top three presidencies - if I may use that phrase about them - should be determined by a separate process, it underlines the need to reconsider the concept of ordinary members of those courts being treated radically differently. I have mentioned here on occasion the fact that any member of the High Court is ex officiocapable of functioning as a member of the Court of Appeal if asked to do so, which happens, any member the Court of Appeal or the High Court is ex officiocapable of functioning as a member of the Supreme Court, and that happens from time to time. I believe that if one looks at these judicial positions from a functional point of view, they are more or less similar. A High Court judge sitting on his or her own makes the law. The Court of Appeal determines whether he or she was correct in making the law and, in so doing, it makes the law. It seems to me, therefore, that the effort to confine a special process to the three presidencies under section 44 is mistaken and should not be proceeded with. The corollary of that thought is that judges who are in those positions and capable of carrying out those functions should not be required to go through the commission process and apply for a promotion, etc. I have made that point on a number of other occasions. I re-emphasise that section 46, which adopts by reference the terms of section 44, which is fluid at this stage because we have not seen the Government's proposal but the Minister has given us a fairly good indication that he intends to confine it to the three presidencies, it is objectionable on that ground. I am opposed to it. It should not form part of the Bill in its present form.

The amendments which were proposed would have considerably improved this section and they have been rejected. In those circumstances, I must indicate opposition to the section.