Seanad debates

Wednesday, 10 April 2019

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

 

10:30 am

Photo of Michael McDowellMichael McDowell (Independent) | Oireachtas source

Section 47(3) states: "The person shall take no part in the performance by the Commission of the particular function and, accordingly, shall neither attend any meeting of it held for the purpose of the performance of the particular function nor cast any vote in relation to any decision falling to be made by it for that purpose."

We are now, through amendment No. 95, putting in subsection (4). That new subsection refers to "a case to which subsection (3)applies, and the person to whom that subsection applies is— (a) a person referred to in section 10(1)(d), (e), (h) or (i)." The people referred to in section 10(1)(d), (e) and (f) are the Presidents of the District Court, Circuit Court and the Attorney General.

The amendment continues: ("b) a person who is a member of the Commission by virtue of section 17(5) or (6) [which is a practising barrister or solicitor] whoever of the following is appropriate shall, notwithstanding anything in section 10(1) or 17(5) or (6), be a member of the Commission for the purpose, and the purpose only, of the performance by it of the particular function".

The amendment then outlines that where the applicant is the President of the Circuit Court, the next most senior ordinary judge of the Circuit Court available shall be a member of the commission. In a case in which the applicant is the President of the District Court, the next most senior of the District Court available shall be a member of the commission. In a case where the applicant is a barrister, another practising barrier appointed by the General Council of the Bar in Ireland shall be a member of the commission. It is a similar situation for solicitors.

A substitute is, therefore, provided for where the President of the District Court or Circuit Court is applying for a judicial office. There is an application for a substitute from the respective court to be appointed. Likewise, if a barrister has been nominated, another barrister has to come on in his or her place. The same applies to a solicitor but not to the Attorney General because nobody substitutes for the Attorney General.

As I read this now, we are creating a lacuna in the case of the Presidents of the Court of Appeal and the High Court. No substitute is provided for them if either of them applies. The Bill does not provide that the next most senior judge of the Court of Appeal is deemed to be a member of the commission, nor has that been applied to the next most senior ordinary judge of the High Court. I cannot understand why there is an omission in respect of the Presidents of the Court of Appeal and High Court and why there are no substitutes provided for their positions whereas this section seems to do so for the other three courts and the two professional members of the commission.

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