Michael McDowell (Independent) | Oireachtas source

The proposal here is to insert a new subsection (3) into the commencement section, that is, section 1, on page 7. The purpose of this amendment is to give this House and the other House a second chance after the next election when, it is hoped, the Government will be free of some of its present influences and when the majority of Members of the Houses will be free to express their real views on this legislation, to consider whether they really want this Bill ever to come into operation at all. I make no bones about this: that is the purpose of the amendment. It is to give both Houses of the Oireachtas the final say as to whether this proposal should come into law.

Normally, a commencement section gives to a Minister the right to commence an Act or a portion of an Act for any particular purpose. It gives to the Minister a discretion to decide when and if it should be commenced and in what parts and for what purposes. It also gives the Minister the right to postpone the repeal of various enactments or provisions of enactments affected by the commencement section. This Bill, however, repeals the Judicial Appointments Advisory Board provisions of earlier legislation. The real question we must ask ourselves is whether, much like the English people in their referendum on Brexit, we should not revisit this at a later stage, when the political circumstances are different.

I strongly believe for a number of reasons that the Bill should be allowed to be reviewed. I wish to put on the record, and I hope the Minister will take this in exactly the spirit in which it is offered, my great admiration for the appointments that have been made to the Bench during the period in which the Minister and the current Attorney General and Government have been in office. They have been good, solid appointments. They have not suffered from the Judicial Appointments Advisory Board procedure. Without being unduly laudatory of people on the Bench before whom one might appear, I believe that this Government has sustained, without any of this legislative arrangement, a very high standard in the appointment of persons to judicial office. Really meritorious people have been appointed. There has been a balance between the types of people appointed. There has been a gender balance among the people appointed. All this has been done by a Government without any assistance at all from a commission.

This provokes the following questions in my mind. Would better appointments have been made if the proposed commission had been in place? Would better people have been put on the Bench if the Government had performed its functions over recent years assisted by a commission of this kind? Not merely is it not proven at all that better appointments would have been made; the likelihood is that the same standard this Government has achieved by operating the existing mechanisms would probably not have been achieved if a majority lay group coming up with different recommendations had been interposed in the whole process.

I challenge the Minister to make the case as to why what is working very well at the moment should not be left alone. One of the reasons I make this challenge is not merely that I believe that the cumbersome and complex procedures envisaged in this Bill will deter people from seeking appointment to judicial office or from making themselves available for appointment to judicial office, but also that the expense and complexity of the procedures must be considered. I ask the House to imagine, for instance, a scenario in which somebody retires from the Supreme Court, somebody from the Court of Appeal takes up the vacant position, and a consequential vacancy occurs in the Court of Appeal, which in all likelihood and in the vast majority of cases will be filled by a judge of the High Court. Under this legislation, even that chain of events could run to six or nine months.If I am to believe what I read in the papers, the only obstacle, the only fly in the ointment, in recent times has been the delaying campaign fought by one Minister against judicial appointments being made. All I can do is rely on the titbits I see in the newspaper concerning objections, the non-filling of positions and the delays in the filling of positions which are attributed to one member of the Cabinet. Forgetting that aspect for one moment, the delays were inexcusable and should never have been countenanced. The bluff should have been called, but when the Bill comes into being, the process will be much more cumbersome. I notice that the Minister has not tabled amendments to deal with the issue. However, the Bill will delay consequential appointments for a period of three to six months when it is not necessary to do so. I say this because if an appointment is made to the Supreme Court and a competition held for that purpose, one cannot anticipate the outcome and say there will also be a competition to fill a position in the Court of Appeal because that suggests one is prejudging the outcome and saying somebody will move from that court to the Supreme Court. Likewise, one cannot anticipate that there will be a vacancy in the Court of Appeal which would warrant appointing a member of the High Court.

I mentioned this issue previously, but nothing has been done to deal with it. It is inevitable that an appointment process to fill a vacancy in the Supreme Court will take two or three months for the commission to deal with the matter. I am not trying to exaggerate it, but two to three months is a fair amount of time to advertise the position, receive all of and consider the applications and assess the process and for the lay majority to conduct interviews and an examination of the records of people about whom they know nothing in such a circumstance. It would take two to three months to fill a vacancy in the Supreme Court if the commission was to be involved in the process at all. When the decision was made, if it was to involve the promotion of somebody in the Court of Appeal, if we are to follow therubric of the Bill, the resulting vacancy would have to be advertised. The Minister would have to go hunting a second time for a judge, a barrister or a solicitor who wanted to be appointed to the Court of Appeal. That would process take two or three months to complete. If the Minister was to decide - in all statistical likelihood it would be the case - to appoint a High Court judge to the position, it would take another two or three months in advertising the vacancy. Something that could be done in an afternoon because the Judicial Appointments Advisory Board, JAAB, process does not apply to existing members of the Bench, could take nine months to complete. I cannot understand how any parliament would consciously walk into that trap.

It is for that reason that I really believe - I am just using what I said as one example because I could spend the entire night here if the Chair was to permit it, but he will not - that is one glaring hole in the whole process. It will delay appointments, including consequential appointments to fill consequential vacancies, by a period of six to nine months in the event that there are three movements of judges arising from the filling of one vacancy in the Supreme Court. That is wrong and it could and should have been avoided. Perhaps it will be if the Government decides that the Bill will be impracticable in its operation and simply adopts the summary procedure set out in section 51 which is simply to state it will not go to the commission to fill these appointments and that the following three people are to be appointed this afternoon: X to the Supreme Court, Y to the Court of Appeal and Z from the High Court to the Court of Appeal. As of now that can happen and it is a sensible way to do business. It means that the courts system works efficiently.

My particular objection is combined with my absolute conviction that for a Government which has made well balanced, merit-based appointments without any of this expensive paraphernalia which will cost €500,000 a year, based on the Minister's projections, and involve massive delays, bureaucracy - offices, rent and full-time civil servants to man them - it is completely unnecessary to do this. Since the Minister in all likelihood will not be making a commencement order before the next general election, before there is a new and different parliament and a new Government-----