Michael McDowell (Independent) | Oireachtas source

The Judicial Appointments Advisory Board has lay members on it. I have no problem with that principle at all. I do have a problem of saying to the Chief Justice that the Chief Justice should not chair the commission purely as a put down for the Judiciary. I do have a problem with saying that lay people must be a majority of every sub-committee as a matter of principle when that is not particularly necessary. That is not relevant to this particular amendment.

To underline what Senator Norris just said, on the Minister's intervention to say that he had full confidence in every member of the High Court, every member of the High Court can function as a member of the Court of Appeal and the Supreme Court, if asked by the President of either of those courts to participate in it. This is not a question. One cannot become a member of the High Court unless one is ex officiosuitable to serve on the Supreme Court. That is the law of the land as things stand and as they will stand in future. One may not be a pavilion member of the High Court, that one is just scraping in and that one is in a category of people whom the Chief Justice cannot ask to serve on the Supreme Court in the event of a vacancy or a particular need. The same applies to the Court of Appeal.

Once one becomes a member of the High Court, one is as a matter of law, assuming an office which entitles one when one is invited to serve on the Court of Appeal and the Supreme Court. One must be suitable ex officio to do that, if invited to do so. Let us be very clear about this. This is a central aspect of my worry about people who are so qualified being asked to submit to a further test of suitability by a commission. That is why I have said from the very beginning that the Judicial Appointments Advisory Board system is far better, because it states that serving members of the Judiciary need not, and may not, apply to the Judicial Appointments Advisory Board to be considered. It is left to the Executive to make the decision by itself.

I am not conjuring up some dark secretive scenario, in which under a cloak of secrecy various rivalries get played out. The Minister puts down a recusal section that says that if one wants to apply for the job one must opt out of the whole idea. That sounds plausible. The problem with it is that it envisages a situation that having opted out one does not get the job and one is not recommended. However, what arises then is what is one's future relationship with one's fellow commission members if they have said that an individual is not suitable to be a permanent member of the Supreme Court and they are not recommending the individual even though, ex officio, the Chief Justice can ring one up in the morning and ask one to serve on that court for a particular case. There is nothing untoward or contrived about what I am saying. I am merely trying to address the same situation that the Minister's section is trying to address and that is the situation that exists if any member of the commission wishes to be considered for recommendation for appointment.

I am saying that it would be very strange indeed, and I reiterate this, for the President of the High Court to have to submit himself or herself to interview by fellow members of the commission to ascertain his or her suitability to be appointed to the Court of Appeal or to the Supreme Court. I cannot imagine anything more artificial or ridiculous than that process. What is the President of the High Court to do? What is the interview supposed to be about? One holds one of the high constitutional offices of the country, one is willing to serve in a vacancy in a court above the High Court, namely, the Court of Appeal or the Supreme Court. What more is there for the commission to do? To start interviewing the individual about his or her aptitudes, where one went to school. I do not know what the interview would be. Can one imagine the President of the High Court sitting in a room with a number of lay people asking him or her why he or she wants to be on the Supreme Court. How grotesque is that? Why is one not happy with the job one has?

Let us think about this, it really does reduce itself to nonsense. What form could the interview take? Just imagine anybody being the President of the High Court and a group of people asking him or her why he or she wants to be on the Supreme Court? "Because I am tired of the job, I have been worked too hard, I have done a very good job and I would prefer to be up there." It becomes absolutely obvious that such a process is stupid. The same applies to the President of the Court of Appeal. If he or she wants to be appointed as an ordinary judge of the Supreme Court, on which he or she isex officio capable of acting in any case, if invited by the Chief Justice, to say to that person, "we are demanding that you be interviewed by the rest of us", is just grotesque. It is not me conjuring this up this. This is what the Minister is providing for. He is saying that if the President of the High Court wishes to be appointed to be an ordinary judge of the Supreme Court, he or she has to exit the process take no further part in the process and subject himself or herself to an interview and an evaluation process by fellow committee members.What is supposed to be done in this regard? Is the President of the High Court supposed to write an essay on a form saying why he or she should be a member of the Supreme Court? Is that seriously envisaged? Is her or she supposed to give an outline of his or her experience? Is her or she supposed to set out what has made him or her desire to be on the Supreme Court rather than retaining his or her present position? That is the slightly weird process for which the Minister is legislating. There is nothing imaginary about that process. That is what section 47 will provide for.

My alternative section 47, on the other hand, is simple. It would provide that such a person may be appointed by the Executive in any event because the Constitution provides for it, and he or she would not have to undergo the charade, absurdity and artificiality of being interviewed as to why he or she wanted to be appointed an ordinary judge of the Supreme Court. It would provide a simple way for the Government to make the choice. Instead of saying he or she is opting out of one process, it would simply require a letter to be written to the secretary to the Government to advise that if an appointment is being made, he or she is interested in the position. That is simple, straightforward, honest and transparent. From the Government's point of view, the name of the President of the High Court will naturally not be on the shortlist because he or she will have indicated an interest in the appointment, and that will be the end of the matter. I can see nothing odd, artificial or arcane about the process I have in mind. The idea, however, that a senior office holder such as the President of the Court of Appeal might have to stand aside from the commission, be interviewed by those members of the commission who comprise the interviewing committee, and set out why he or she wants to be a Supreme Court judge is absurd. Even if he or she did not have to set out reasons, what would be the point of having his or her suitability assessed as an ordinary member of the Supreme Court given that he or she is, as a matter of law, suitable to serve on that court?

I return to a point I made earlier. If the Government decides to appoint the President of the High Court as an ordinary member of the Supreme Court or to some other court, it will have policy considerations in mind which the interview process cannot address or have anything to do with. Far from my proposed section 47 being in any way strange, it is the Minister's proposal that is strange and it is underlines and exposes the ridiculousness of one commissioner applying to the rest of the commission to have his or her suitability assessed when he or she is, as a matter of law, well capable of being appointed to the position in question.