Michael McDowell (Independent) | Oireachtas source

The case for a large judicial appointments commission of the kind proposed, or as the text now stands, has not been made. It is excessively large and unwieldy. No good case has been made for having seven lay people and a chairperson, as envisaged by section 10(1)(j) and (k), constitute a majority of the board, and the number seven is clearly designed simply to outweigh numerically the ex officio people who are considered worthy to hold office as members of the commission by reason of their expertise or the office that they hold.

Although the Minister now states it would be a major U-turn for the Government to abandon the idea of a lay majority, I have never heard a good argument made on the record of the Dáil or in this Chamber for having a lay majority. When I think back on the arguments that have been made about a lay majority, it is that somehow if one had a majority of judges, members of the Irish Human Rights and Equality Commission, practising barristers, practising solicitors, the Attorney General and a minority of lay people on this commission, they would in some sense attempt, consciously or unconsciously, to subvert the common good by making choices that would not otherwise be made, that they would be clannish and cliquish and put people onto the Bench, or attempt to have people put on the Bench, who would not deserve to be made judges. That seems to me to be the only real basis for having a so-called lay majority on the commission, that somehow by making the lay element the majority element, a different type of person will be made a judge. If one considers that proposition, it suggest that an experienced commission comprising a person appointed by the Law Society, a person appointed by the Bar Council, a member of the Irish Human Rights and Equality Commission and a smaller group of lay people is more likely to make inferior recommendations to the Government than otherwise. The logic of that escapes me, and the implausibility of that is apparent when one thinks about it. It is simply implausible that better judges will be appointed simply by outweighing the number of people who know what they are talking about instinctively with people whose only major qualification is that they are less qualified than the others, by reason of their life experience, to have an input into the appointment of judges. On that account, I am worried.

Senator Bacik mentioned the definition the Minister has in amendment No. 7, which we have not yet reached. However, I want to signal now, without being disorderly, I hope, that the change proposed in amendment No. 7, adding in a paragraph (d), is deeply suspicious. It means that among the lay people we could not have, say, a retired judge from the United Kingdom, France, Northern Ireland, Scotland or from anywhere else. Such a person would be disqualified, and by the way, because such a person cannot be appointed under any of the other categories, he or she could never serve on the judicial appointments commission.