Michael McDowell (Independent) | Oireachtas source

I fully understand what the Minister is driving at, but it was never grouped with other amendments.

Amendment No. 14 is to amend section 3 by deleting paragraph (b) from the section of the Bill as it currently stands. Paragraph (b) states: "In this Act - (b) a reference to recommending the name of a person to the Government under section 44is a reference to the making, under that section, of a recommendation to the Government that the person be appointed to a judicial office specified in the recommendation." To understand the significance of this amendment one must look at the Long Title to the Bill which states:

An Act to establish a body to be known as [...] the Judicial Appointments Commission; to provide for the making, by that body, of recommendations in respect of appointments to certain judicial offices; to make provision for persons of a lay character, as well as judges and legal practitioners, to be members of that body; to amend the qualification requirements for appointment to judicial office; [and this is the important part] to enable, through other procedures, the making of recommendations in respect of appointments to senior judicial offices that do not fall within the remit of the foregoing body.

The remit of the "foregoing body" is the remit of the proposed judicial appointments commission.When the Bill was under consideration in Dáil Éireann, perhaps on Committee Stage or Report Stage, the Members of that House, in their wisdom, decided that the arrangements the Minister was proposing in respect of appointments to certain senior positions, namely, those of Chief Justice, President of the Court of Appeal or President of the High Court, be taken away from the judicial appointments commission and be subject, where vacancies arise, to a different procedure whereby a committee of senior judges and the Attorney General would be established in order to make a recommendation to the Government. The Select Committee on Justice and Equality decided that this was wrong and that the separate channel for promotion to one of the offices I mentioned should be overseen by the Government, on the recommendation of the commission, and substituted the commission, which the Minister had proposed, for the committee. I am completely opposed to that for various reasons. The choice of Chief Justice is not a matter for the judicial appointments commission in any circumstance. The Chief Justice is not merely an officeholder of great eminence in the legal system, he or she is the President of the Supreme Court, the highest constitutional court in the land. The decision as to who should or should not be Chief Justice is vested in the Government under the Constitution, and the choice of persons to be Chief Justice is one for the Government alone.

The amendment made in Dáil Éireann to section 44 is in direct contradiction to the Long Title and has the effect of giving the function of recommending a person to be appointed Chief Justice to the commission that will oversee all other judicial appointments. The same function was handed to the commission in respect of the presidencies of the Court of the Appeal and of the High Court, both of which are constitutional offices, the choice of people to serve in which falls within the remit of the Government alone under the Constitution. Why should those offices be distinguished from the other judicial positions to which the Bill applies insofar as the involvement, in certain cases, of the judicial appointments commission is required? It could be argued that the positions are greatly determinative of the character of those courts. After all, the Chief Justice ultimately assigns cases to divisional courts of the Supreme Court, while the President of the Court of Appeal and the President of the High Court do the same for their respective courts. More importantly, an office such as the Presidency of the High Court carries with it the obligation and power to make important decisions of which most people will be unaware. For example, the President of the High Court is the effective enforcer of discipline on those in the profession of solicitor. Ultimately - I am glad to say in a tiny number of cases - he or she has to take the unpleasant tasks of disqualifying people from being solicitors, of imposing penalties or of upholding the decisions of the Solicitors Disciplinary Tribunal. In addition, the President of the High Court has a function in respect of wards of court. He or she does not simply organise the business of the High Court, which is done by means of practice directions and so on, he or she is also an ex officiomember of the rules committee and of many bodies that have a profound effect on not merely the administration of adversarial justice between parties in courts but also on that of non-adversarial justice. I refer, for example, to the case of wards of court, whereby the President of the High Court takes personal responsibility, as the law stands, for the protection of people of unsound mind or minority in respect of their estates. That role does not simply apply to the protection of people in those contexts but also to taking people into wardship for their own protection. Where, for religious purposes, parents decide that they will deny their child a blood transfusion, the President of the High Court's jurisdiction to take the child into wardship and to direct that certain steps be taken to save the child's life is very important.

The three offices I outlined carry such functions with them in one way or another but they are not simply the functions of ordinary judges of the High Court, the Court of Appeal or the Supreme Court. It seems that the decision as to who should hold the offices is envisaged by the Constitution to be taken by the Executive - the Government - having considered the matter and received the advice of the Minister for Justice and Equality and the Attorney General. It is for the Government to make up its mind on that issue. More importantly, it is not for members of the Judiciary to apply for approval or recommendation to appointment of those positions to a commission comprising a majority of laypersons.

Section 44, as amended by Dáil Éireann, would have the effect of attempting to rob the Government of the unfettered discretion as to whom it appoints to the offices and would substitute a system whereby it would have to subject the various candidates to some kind of vetting process by the commission and seek a shortlist from the latter. As the Bill stands, the Government would have to consider the shortlist submitted in the order of preference of the commission. It is the case that, under the Constitution, the Government cannot be restrained by any recommendation of the commission. We will soon come to that matter in discussion of one of the Minister's amendmentand I do not wish to trespass on that debate. Nevertheless, section 44 is a repugnant provision in its present form. On this Stage, even though it remains part of the Bill, it is entirely reasonable to remove the reference to section 44 because of the amendments made to it by the Dáil.

I should say for completeness that it is my strongly held position, as the Minister knows well, that no sitting judge of the superior courts should be obliged to submit his or her name to the commission for appointment to any other position in those courts. I have made the point on a number of occasions and will not repeat it at length now, but in this context it is important. I do not want to be seen to agree with the principle of section 44 at all, but if, unfortunately, it is to stand part of the Bill, it should certainly not have any role for the commission. Even in that context, the Minister's original formulation, as put before Dáil Éireann and rejected by that Chamber, should be reinstated. Every member of the High Court and the Court of Appeal, as a matter of statute law, is entitled to sit on the Court of Appeal and the Supreme Court, respectively, on the invitation of the President of the Court of Appeal or the Chief Justice.It is not a question of having to decide who is suitable or capable of functioning as a judge in those courts. It is an important constitutional point that the law already provides that every member of the superior courts, High Court and Court of Appeal is already eligible to serve as an ordinary judge in the Supreme Court when invited to do so. Every member of the High Court is entitled by statute to function as a Court of Appeal judge when invited to do so. The idea of asking those people, if a vacancy in one of those courts arises, to submit themselves for interview and evaluation by a group of people who are, in the majority, lay people, who are inexpert in what is at issue, almost by definition, is wrong and repugnant to the Constitution. It is an invasion of the judicial independence of each of those persons who is, on appointment, eligible to serve in either of those courts as an ordinary member at the invitation of the president of either court.

The reason that section 3 should be repealed is that it provides for the operation of section 44. Section 44, as amended by Dáil Éireann, is deeply repugnant to the principles of constitutional law in this country and deeply subversive of the role of the Government in choosing the presidents of those courts. On that account I move the amendment.