Michael McDowell (Independent) | Oireachtas source

I strongly believe the Bill would not have been introduced in its current form were it not for a happenstance, a peculiar obsession on the part of one or two individuals who have had leverage over the Government. That being the case, a new Government will be duty-bound to ask whether the commencement of the legislation will really add anything to the quality of the Judiciary by comparison with the current system. If it were to ask itself what was wrong with what had happened when Deputy Flanagan was Minister for Justice and Equality – nobody knows, but he might be Minister for Foreign Affairs and Trade again at that stage – and state it worked well, it might ask itself whether it wanted to waste time and money in establishing this quango to operate in the way envisaged.

The idea of giving the Houses of Parliament a veto over a statutory instrument is not unprecedented. I will give an example. Under the planning Acts exempted development is achieved by way of a statutory instrument, but because of its far-reaching nature, positive affirmation by the Houses of the Oireachtas is required to alter what is exempted development. The Minister is not just being given the right to proceed, subject to the right of the Houses to intervene to cancel an otherwise self-executing power, to make a statutory instrument or regulation. There are instances where the Houses of the Oireachtas are given not merely the power to veto a regulation made by the Minister but also the right to ensure no regulations can be made unless they are positively in agreement with them. Even within the four corners of the Bill under discussion, the lay people who are to be appointed to the commission may be appointed only by a vote in the Houses of the Oireachtas. If the Oireachtas was to decide not to appoint them, the commission could never come into being. Let us be clear: it is the next Dáil and Seanad that will actually decide whether the Bill will come into operation in its current form or will be amended. Senator Bacik has said she believes in some degree of reform. While I have no problem with some degree of reform of the Judicial Appointments Advisory Board system, I contend that where there is positive will, it works extremely well. It does not work in as cumbersome a way as this legislation will if it is brought into operation.

I am not making a threat but a plea to the Minister to enable the Cabinet procedures that he and his Cabinet colleagues, including the Attorney General and the Taoiseach, have used which require the Minister to consult the Attorney General on judicial appointments proposed by him at the Cabinet. That procedure works well if it is worked by people of good will. It works much more efficiently than what is proposed. Let me give an example. The Minister could not possibly have made some of the appointments made recently if this Bill had been in operation. He recently appointed members of the High Court to the Court of Appeal and within weeks appointed practising barristers and solicitors to fill the resulting vacancies. That could not happen under the proposed legislation unless it was to happen under section 51, or it were to be said the appointments would be made, irrespective of the commission.

I ask the Minister to reflect on what he has done in the past few weeks. Since the start of the new law year, he has appointed six members of the Court of Appeal, four of whom were existing judges, while two were drawn from practising professions. He recently appointed four or five individuals – four at any rate – to fill the vacancies created in the High Court as a consequence. He has made excellent appointments, but that could not have happened under the Bill. The first thing he would have had to have done was advertise the vacancies in the Court of Appeal that he was proposing to fill. That would have taken months. When the Government finally had its short list and to decide in favour or against it which would have resulted in vacancies in the High Court, it would have had to appoint judges to fill them, again using a cumbersome procedure. What was done in a matter of weeks could take six months under this legislation if it were to take effect. It is retrograde that it has not been amended to take account of this.

All I can say is that an amendment of mine that the Minister accepted on Committee Stage to section 51 is the only way out of the mess. It simply involves disregarding the whole process. If there were to be a succession of appointments to the superior courts, the commission would simply be told that it was out of it, that its advice was not needed, that we were quite capable of making a proper decision ourselves and that we proposed to do so, in which case, under section 51, the commission would have no other function. This scenario shows that a wiser Government which was under less pressure would hesitate before commencing the provision and that a wiser Dáil and Seanad would tell the Government not to proceed and instead stick to the current system, which works so well when operated by people of good will.