Michael McDowell (Independent) | Oireachtas source

That is a different matter. I was taking up the phraseology of the draftsman, who I will not criticise in this respect. It is already part of the Minister's scheme that a particular appointee will be appointed or recommended for appointment on the basis that he or she may be carrying out a different class of business in the court to which he or she is appointed. That is already there. It is the Minister's policy. If the Government wants more family law judges, it is the Minister's and the Government's responsibility to tell the commission that. It is not trenching on their independence. It is not their function to determine that there should be a particular balance of judges of one class or another. It is for the Government of the day to say that it wants more criminal judges and not more family judges, since that court is well enough manned, if I can use that phrase, as things stand. When setting out a statement of requisite skills and attributes, if one accepts the proposition that the likelihood that a particular appointment will go to a particular division of a particular court, the obvious thing to do before the commission embarks on that task is for the Government to say that it wants the commission to have regard to the fact that we are seeking an extra appointment to deal with family law rather than criminal law.That would especially take place in the context of what the Minister is doing with expanding the Court of Appeal by a significant number of judges. If all of the newly-appointed judges under his proposed statutory amendment were on the criminal side, it might be a good thing or it might be a bad thing. At least, the Government is entitled, especially when increasing the resources of a court, to direct those resources towards a particular end of the courts’ variety of categories of business.

It is regrettable that it should be stated that this somehow trenches on the independence of the commission. The commission itself, under section 50(2), has to consider a situation in which it is reasonably anticipated that a particular appointee would be dealing with a particular class of business. If the Oireachtas decides to appoint five extra judges to the District Court to strengthen its family law side, if that is the purpose of expanding the number of judges in the District Court under legislation, the Government should be entitled to send a totally transparent direction to the commission stating it is appointing these five extra judges and making provision for them in statute on the basis it wants to expand the family law capacity of the District Court. If that is the Government’s intention, it is no imposition on the commission’s independence that it should have regard to a direction along those lines given by the Minister. The Government is not telling the commission who it has to appoint. It is merely to say that it is interested in family law appointees and that is why it is creating these extra positions. Could anything be more innocent than that? Could anything be more reasonable than that? Could anything be less likely to cause trouble?

I will give the Minister another example. Supposing it was felt by the Government – this is not a matter for the Judiciary – that we needed an extra expert in intellectual copyright, trademark or intellectual property law? Why should the Government not be in a position to give a direction to the commission to advertise a position on the basis that it wants someone appointed capable of dealing with this area of business? When one is interviewing them, there is no point in talking to them about their experience in the District Court doing TV licence cases. This person is going to be a different person altogether. That is why this amendment is being proposed.

On making such a direction, the amendment proposes that there would be consultation with the members of the various courts involved. On occasions, the Government may need one trademark or intellectual property judge but, as there is only need for one, will it make it clear in its advertisement? This will ensure intellectual property lawyers will see one slot go to an intellectual property lawyer and they might as well apply for it. Otherwise, we will play this ridiculous blind man’s buff arrangement that people are putting in applications not knowing what is going on in the minds of the people making the appointment.

Since the principle is already established in section 50(2) that there will be people appointed who in all likelihood will be sent to do particular aspects of the law in a court, I cannot see any argument against this amendment. The one offered by the Minister that it would trench on the independence of the commission is hardly stateable. What would be wrong with saying we are creating two extra vacancies and we want one of them to be an intellectual property lawyer who can deal with patent, trademark and copyright cases? If there is nothing wrong with that, why not state so in the advertisement which the commission puts out? It can state it received a direction from the Minister that it is its intention to appoint an intellectual property lawyer. That means that all intellectual property lawyers - solicitors and barristers who specialise in this area - will see this is to what the commission will be addressing its minds. If there was only one such position coming up and such a direction was given, people, who as Senator Norris said, spent their lives doing some different and obtuse area of law, would consider themselves not suitable.