Tuesday, 14 May 2019
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
Michael McDowell (Independent)
It is hard to imagine how the commission would evaluate honesty. The point I want to make, and it is at a more serious level than those observations, is that experience that might be very relevant to whether somebody was appointed, say, as a judge of the Circuit Court, is, for instance, service as a member of the Residential Tenancies Board, the Employment Appeals Tribunal or in the asylum process, or on an appeals board for the State, where they would have demonstrated, and could be asked about, a capacity to be judicial or quasi-judicial. Experience is, therefore, hugely important.
If we take the notion that experience should not be one of the stated criteria, we must ask whether the commission should be blind to the comparative experience of two people who are candidates for short-listing. Surely it must give some credit for satisfactory performance and experience of a judicial or quasi-judicial kind. Surely, as Senator Norris said, if somebody was going to be appointed to the Circuit Court or the District Court and it appears they have been an in-house conveyancer for a bank and a practising solicitor for the previous 20 years, that experience must be weighed against that of somebody who has experience of litigation in the courts or in one of the tribunals established by the State. I do not accept the proposition that it is inappropriate to take into account experience in this context.
What worries me about excluding it is that people who have no experience will be recommended on the basis that the Minister in the Seanad said that experience was not something which should feature in these statements or in the published documentation. The argument will, therefore, be made that, historically, the Act was not intended to give credit for experience, where it is relevant.
Of course, I accept that not all experience is relevant and it cannot be the sole determinant. However, it must be part of the mix if we are choosing somebody to be a judge at whatever level in our judicial system, but more particularly the more senior the appointment. The fact that somebody has experience of court practice and procedure must be a significant issue in determining that person's suitability, especially when this legislation wants that to be done. It is unfortunate it is doing two things: first, selecting out of the group of people three people who the commission is then recommending to be first viewed by the Government; and, second, between them, ranking them in importance. The Minister drew our attention on the previous occasion to the fact they were to be ranked in importance but he did not draw our attention to how - and I had to go and research how - that provision had come into the text of the Bill in the Dáil.If memory serves, it was a proposal from Deputy Clare Daly. It was not part of the Government's original architecture of this legislation that the shortlist should be internally ranked in order of preference. It was not always part of the Bill. If we are going to compose shortlists and accept Deputy Daly's amendment which provides that there should be an order of preference within the shortlist of three, it makes little or no sense not to draw the commission's attention to the need to examine the experience of the various people it is considering for the shortlist.
I should add that I tabled amendments in respect of the situation where the Government wishes to recruit a number of judges to expand, for example, the family courts or the Court of Appeal's appellate side in the criminal area. My amendment, which we will reach in due course, indicates that the Minister in those circumstances may direct the commission to have regard to the fact that the Government is looking for family judges, not just chancery judges or landlord and tenant judges, and that the commission is obliged when making its recommended list to have regard to the underlying purpose of the vacancy on which the Government is asking it to make a recommendation. That is an essential amendment to the Bill, but we will reach it in the fullness of time. In that context, in particular, it is inappropriate to say that experience is irrelevant. To choose not to include it in the list of attributes of a person to be recommended and to reject an amendment designed to include it is to create a false devaluation of experience, which should not happen.