Michael McDowell (Independent) | Oireachtas source

Ignoring that for a second, who reasonably anticipates this? How are the appointees for that job going to know when they apply for a vacancy in the High Court, say, that it is looking for an intellectual property lawyer rather than somebody to preside over murder trials in the Central Criminal Court? How is this to be determined? This is a genuine lacuna. It is a mistake in the Bill that there is no provision for the Government to make it clear that it wants an intellectual property lawyer and not to put out advertisements to which every specialist in criminal law will spend hours preparing himself or herself to attend.Since the requisite skills and attributes can vary from class of business within a court, why can the advertisement not vary in that way? If the advertisement is to vary in that way, and someone must make the decision as to whether it will, for example, whether the next appointee will be a criminal lawyer or an intellectual property lawyer, I believe it is the function of the Executive to make that decision, for example, that it wants an intellectual property lawyer. It is perfectly reasonable to say to the commission that it should not waste its time or the time of innocent lawyers and legal academics asking them to apply for this job without telling them that the Government wants an intellectual property lawyer and does not want another family lawyer or another criminal lawyer. It simply does not make sense. I appeal to the Minister to recognise the sense of this amendment. It certainly does not trench on the commission's independence to say that when it is making an appointment it should have regard to the Government's underlining purpose, which is to appoint an intellectual property lawyer rather than a criminal lawyer.

This goes back to the fundamental lack of honesty in the philosophy behind this Bill and, in saying that, I am not making a personal comment. It is for the Executive to choose whether we get an intellectual property lawyer. It is not for an independent body to determine we want an intellectual property lawyer. It is for the Executive to choose, for example, that we want two more criminal judges rather than for an independent body with a majority of lay people on it to determine that issue. The Executive makes its decision on these matters under the Constitution. Therefore, it is not correct to say that would trench on the independence of what is an advisory commission. Although the word "advise" has been carefully taken out to keep the Minister, Deputy Ross, happy, it still remains an advisory body. If the Government is asking for advice as to who it should appoint to a vacancy, it should at least be in a position to tell the body, from which it is seeking advice, that it intends to make a particular type of appointment. What could be more simple, honest or transparent than that? What could be more ridiculous than to say that should not happen, that the Government should not tell the body in question what kind of activity it has in mind for this person because to do so would be to trench on its independence? That is asking the body to draw up a shortlist without regard to what the Government is minded to do. That is absurd. It defies belief that this is regarded as a measure that would trench on the body's independence. It is utterly unfair, for instance, to the category of would-be family law judges that they are not told the day they apply that the vacancies, for which they are applying, are family law vacancies. It is utterly unfair to say to criminal lawyers they might as well apply but we will not tell them until afterwards that they did not succeed because the Government did not want to appoint criminal lawyers.

Since the principle is already conceded in section 50(2), it can be reasonably anticipated that a particular appointee to a vacancy in a court will be carrying out a particular class of business. Therefore, why should the commission not take guidance from the Government as to what the Government is looking for? I do not believe that even the Minister, Deputy Ross, in his wildest imagination could consider such an amendment as that prepared by myself and my colleagues to be cronyism or to tie the hands of the commission in the advice it gives. It is merely saying we are interested in a particular type of judge, please tell the applicants that is what we are doing and when conducting the interviews, to have regard to the fact that this is what we intend to do. There is nothing more sensible than that. Under section 50(2) they are already entitled to put in place different statements of procedures for different classes of business. Why can it not be that they are directed in a particular direction?

Section 50(2) states that the power to provide "a statement of requisite skills and attributes under this Part includes a power to prepare different statements of requisite skills and attributes by reference to ... in the case of judicial offices in the same court, different classes of business in that court that it is reasonably anticipated a particular appointee to such office would deal with". The principle is already conceded that there will be a different statement of attributes for an intellectual property judicial appointment but what we are saying is that if that is conceded, take the next logical step and put into the Bill some method whereby the Government can tell the commission that it wants to be advised, by means of a shortlist, of four people in that category and that it does not want to waste everybody else’s time applying futilely for something for which they are obviously unsuited.

I ask the Minister to reconsider what I have said is a knee-jerk reaction to this proposal. It is designed to be constructive, to make the system work and not waste practitioners’ time applying for positions they will never get by warning them in advance of the category of appointment that is likely to be made on foot of the shortlist. I can see nothing unfair about that or nothing that is trenching on the commission's independence. It makes plain, simple common sense to me and it should not be rejected.