Michael McDowell (Independent) | Oireachtas source

The Minister further states that at least those three positions will be dealt with by means of an amendment from him. Will it be no more than those three positions? We are being deliberately kept in the dark on that issue. I have stated again and again that I see no reason whatsoever for the commission having any function in determining who becomes an ordinary member of the Supreme Court. Put simply, this is a matter for the Executive. It is also a matter to be decided on the basis of criteria which the commission is not entitled to take into account. How many times have I said that? The commission is not entitled to state, "Mr. Justice McDowell is a liberal and we recommend him on that basis" or "Mr. Justice McDowell is a conservative and we recommend him on that basis." That is ultra viresof the commission and the statutory scheme but those are precisely the criteria by which the Supreme Court would decide whether it wanted me to serve in the Supreme Court if I was in the High Court or the Court of Appeal. What would my attitude be to personal injuries or to matters of European and Irish law where they conflict? Those are the issues the Government should take into account when it is composing the membership of the Supreme Court and they are the precise issues about which the commission cannot ask questions or form a judgment. In actuality, it is not even suited to forming a judgment.

This applies not merely to the lay members of the commission, it also applies to the members of the Judiciary who will serve on this proposed commission. It is none of their business whether the State decides to appoint another liberal or another conservative to the Supreme Court. It is for this reason that I have championed the idea that the so called promotion - I do not like that word - of people to the higher courts among the superior courts is exclusively a matter for the Executive, having taken the advice of the Attorney General, the Minister for Justice and Equality and anybody else from whom it wishes to take advice and engaged in its own consideration, to deal with. It is nobody else's business whether the Executive decides to appoint a liberal or a conservative to the Supreme Court. Nobody else has a legitimate voice to express in respect of that matter. Nobody else is ex officio. The Chief Justice or the other members of the commission cannot be told to-----