Michael McDowell (Independent) | Oireachtas source

-----because he is overcome by the tedium of this debate, which is a novel reason for abandoning a policy. It occurs to me that the fundamental philosophical mistake being made is that the promotional appointments - if I may use that phrase which I do not like very much - to the Court of Appeal and the Supreme Court are, in my view, matters on which the Government should exercise its discretion because the Government as the Executive is the institution in which that discretion is vested by the Constitution.

I again make a point which, in this context, bears repetition, namely, that under the criteria by reference to which the commission is supposed to make its decisions on recommendation which are set out in the Act and will be set out in greater detail in the statements of the procedures committee, the one thing the commission is not allowed to consider is probably the one thing with which the Government will be most concerned. When the Government receives the three names, it will ask, "Who are these three people? What kind of Supreme Court will we have if we accept one or more of them as recommended appointees?" The Government comes to a view as to whether the candidate in question is liberal or very conservative. That is one thing which the commission is prohibited from taking into account. Such an assessment might involve looking at the judgment record of a particular judge to see whether he or she was reactionary or progressive, if one wishes to use those terms, which I do not particularly like either.

Those are the kinds of things that the Executive will ask. Taking the example of a very simple issue of huge significance in the day-to-day lives of ordinary Irish people who pay insurance premiums, it would ask, "Does this judge take a liberal and generous approach to the awarding of damages? Has he or she shown that tendency as a judge of the High Court or Court of Appeal? Do we want that approach reflected in the jurisprudence of the Court of Appeal or Supreme Court?"There are other criteria but these are the very things that the commission is not entitled to do. The commission is not entitled to ask Mr. Justice So-and-So why he consistently takes such a generous or mean approach to the awarding of damages. It is not entitled to ask a judge why he or she takes a particular line on this or that issue. Those are the kinds of questions which the commission cannot ask a candidate but these are precisely the kinds of things that would influence the Government in reaching a decision. The Government would be interested to know whether someone has been vocally opposed to various referenda being passed, for example, in deciding whether it wants to appoint that person to the Supreme Court. It is perfectly reasonable for the Government to look at the Supreme Court and decide that it wants to give it a more liberal complexion or that it wants to make it more conservative. Those are perfectly reasonable criteria for the Government to have in mind when making an appointment. What I find really objectionable about this legislation is that a group of people who are not entitled to consider these issues and who are expressly prohibited from doing so will make a selection of three names and the Government is then supposed to consider those three people first when different criteria inform Government decisions to appoint people to our courts. What is objectionable about section 44 is that it is so confined. The Court of Appeal and the Supreme Court are hugely important courts. Their membership is a matter of enormous importance. The same criteria on liberalism versus conservatism or activism versus-----