Michael McDowell (Independent) | Oireachtas source

Following what the Minister stated by way of observation on the amendment, it is quite likely, given the turnover of people in the judicial hierarchy, that positions in the Court of Appeal will become vacant quite frequently. In a matter of months, somebody in the Supreme Court could retire, somebody from the Court of Appeal could then get that job and there would be another vacancy on the Court of Appeal. In other words, it is not at all unlikely that appointments to courts, and the superior courts, at the same level will take place with considerable regularity. I am hoping that would not be a daily or weekly occurrence but it would certainly happen a number of times in a year, on average, given the size of the Bench.

Let us suppose a judge of the High Court applied to be considered for a position on the Court of Appeal. Suppose also that he or she has been told that he or she has been shortlisted for that job and recommended to the Minister for appointment. One of the other persons on the shortlist is then chosen and two months later an appointment to the same court at the same level becomes available. Is that person seriously to be asked to reapply, resubmit himself or herself for appointment and take part in a competitive process to be on a second shortlist for recommendation to the Government? Let us assume, for example, in the scenario I just painted, that two out of the three people shortlisted are not appointed. Another vacancy at the same level then becomes available. It is advertised because that is the process. Is the person who was not successful seriously to be asked would he or she now resubmit an application? Would he or she be expected to compete against people, including some who may not have been applicants for the first position, who may knock him or her off the list if they are viewed by the commission as being better nominees than our original candidate? How often is a High Court judge to be asked to do that in a year? If that happened three or four times a year, at what stage will the High Court judge decide that he or she has had enough?

If that judge has been told that he or she has been recommended and the Government is aware of his or her existence as a recommended person, why should we go through the whole process again of reminding the Government that the individual concerned is a recommended person? Senator Norris asked the very good question as to whether the assumption here is that people degrade and become less suitable having been recommended. It might perhaps be the converse and somebody else more suitable comes into focus. My amendment does not state that a person will automatically be included in the next list. It just means that person is noted by the Government as having already been recommended for a position. The name of the person is included along with a fresh list of three other names.

My amendment would mean a person would not be required to go through the whole process again. In the example I have given, the Government could look at the four names before it. It could then decide that the person who was the runner-up the last time, to use that phrase, is the person it is going to appoint this time. That is especially the case in view of the Government's rejection of Senator Bacik's proposal that there be a running order. The Government is not going to know the commission's preference for first, second and third in the ranking. If the Government chooses an applicant, it is not going to know that the other two were ranked in any particular order. I cannot see that anything will be lost by accepting this amendment. The Minister asked if there is some time limit to all of this. If a person is recommended in 2019, is he or she to be there forever? Would he or she be there in 2027, for example, lurking in the wings-----