Michael McDowell (Independent) | Oireachtas source

There are two problems with that. First, it is for the Government and the Oireachtas to decide how many judges there are in the High Court. We are told the Minister will bring in a Bill to increase the size of the Court of Appeal by a further six judges in the near future. In that court, that is a matter for the Government. However, I can well imagine that at some stage in the next few years, a decision will be made by the Cabinet and the Oireachtas to increase the size of, for example, the Circuit Court, to deal with family law cases. If they then, on foot of creating the six additional vacancies, for example, in family law under legislation for the Circuit Court, advertise those vacancies, surely those who apply for them are entitled to be informed by the commission by public advertisement that the Government is looking for family law lawyers. There must be some mechanism whereby the Government's policy on this matter, given that it has a licence from the Oireachtas to appoint additional judges, is conveyed not merely to the commission via the Attorney General at a private meeting but also to would-be applicants so that they know what is going on. Senator Norris mockingly accuses me of using the term "lawyers". It is only fair to tell criminal law practitioners that it is anticipated that the three vacancies that are under advertisement are likely to be assigned to family law. If that were not the case, why would the phrase appear in section 50 that "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 [that is a named person] ..." will be assigned? One of these three persons on the shortlist will be assigned to that business. Why not tell those who are applying for that vacancy that this is one which one believes will be for intellectual property, criminal law, family law or whatever? If one accepts that principle, I cannot see what is wrong with telling the applicants that such is the case. The Minister has not provided for it in the Bill.

He has not provided that advertisements of vacancies can specify different areas of business in a court. He has also not provided for who would make that decision. He has further not provided for whether it is the Government's decision or that of the president of the relevant court's in the last analysis. If it was always simply the president of the court who assigned people, he or she would be in a weak position seeking additional appointments from the Government for the purpose of family law if in the end the commission decides that it is not particularly interested in extra family law judges and it believes the following three legal academics with expertise in civil law are the best qualified for the upcoming vacancies. It is the Government's decision to make a choice in this area as regards whether a particular judicial vacancy should be filled towards a particular end, and that is what the Attorney General is there to advise the Government on.

That is the other point. It is the function of the Attorney General to say that we need another intellectual property lawyer and for the Government then to say that is a good idea and then tell the commission to go and look for an intellectual property lawyer and not put a silly advertisement in the newspapers looking merely for another judge in the High Court and have many lawyers apply for it without telling them that in private it has been decided that the name of the game is to appoint an intellectual property lawyer.

I cannot see anything wrong with this principle. I can see every reason it should be incorporated in the Bill. It has nothing to do with the independence of the commission because if the commission published an advertisement that the Government had directed it to seek a person who would in all likelihood specialise in intellectual property law and receives a number of applications in that context, it independently makes up its mind as to who is to be on the shortlist and in what order they are to be recommended to the Government. There is no trenching on their independence by asking them to be transparent in what they are doing and in what the Government is likely to do.