Seanad debates

Tuesday, 18 June 2019

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

 

2:30 pm

Photo of Michael McDowellMichael McDowell (Independent) | Oireachtas source

I move amendment No. 97db:

In page 34, between lines 10 and 11, to insert the following:“53.Any statement made or published under this Part shall state that no applicant for judicial office may be questioned, interviewed or required in any way so as to express any opinion as to how any particular issue of law or matter of legal controversy (including matters of constitutional interpretation or amendment) should be decided or should have been decided by the courts.”.

The amendment proposes the insertion of a new section 53 in the Bill. The reference to "Any statement made or published under this Part" refers to a statement proposed by the procedures committee, approved by the commission and published by it under this part of the Bill. The amendment proposes that each such statement "shall state that no applicant for judicial office may be questioned, interviewed or required in any way so as to express any opinion as to how any particular issue of law or matter of legal controversy (including matters of constitutional interpretation or amendment) should be decided or should have been decided by the courts". It would apply to the commission questioning applicants in the course of an interview, interviewing them, asking them to fill out a questionnaire or anything of the kind in which they would be invited to express opinions as to how a particular issue of law or matter of legal controversy, including a constitutional interpretation or amendment, should be decided or should have been decided by the courts. In other words, applicants should not be asked about what should happen or asked to comment on past decisions of the courts as part of the interview process. Curiously, the Senate judiciary committee in the United States of America has such a convention, in that any person whose nomination is being considered by the committee on foot of a nomination by the President of the United States cannot be asked to express his or her views on matters of legal controversy or on how he or she would decide particular legal issues.

It seems to me that in the debate on the previous amendment there was a remarkable paucity of suggestions from Government Senators in attendance or, indeed, the Minister as to precisely how one would, in the case of a judge, for example, interview him or her and what questions would be put to a judge one way or the other. It is fair to say that the suggestion was eventually made that a judge might wish to emphasise some aspect of his or her curriculum vitae and draw it to the attention of the interviewing panel, but that is not a very clear reason judges should be interviewed. Given that the Minister set his face against amendment No. 97da, which provided for the interviewing of serving judges in the superior courts in respect of applications to vacancies in those courts, the necessity for this amendment becomes all the clearer. In effect, if a sitting member of the Judiciary could legitimately be asked to comment on legal matters such as a legal controversy or a particular issue of law, including matters of constitutional interpretation or amendment, the interviewing panel of the commission would be seeking to elicit the attitude of a serving judge to what may be live legal issues or issues of legal controversy. If such a line of questioning were legitimate, one would have a situation whereby the judicial appointments commission or some of its members conducting an interview would be in a position to differentiate between applicants for judicial office by reference to their outlook on matters of judicial controversy, decided case law, how cases should be decided or how the law should be amended and so on. To have serving judges exposed to such questioning would radically subvert their independence. To do so in the context of evaluating whether they should be recommended for appointment would be absolutely-----

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