Michael McDowell (Independent) | Oireachtas source

I welcome the Minister and her officials to the House today. I welcome that this legislation is being put before the House. It is a huge improvement on the Bill which was debated at great length in this House before. I should acknowledge that fact. There are a number of issues, though, that I do want to raise. One has been raised by Senator Ward, namely, that in effect, section 52 now says that a person cannot become a judge if a working majority on the commission decides that they will not become a judge. Effectively we are giving to a working majority on the commission, which is effectively the Judiciary, a veto on anybody becoming a judge. The Constitution talks about eligibility to become a judge. This is not a question of eligibility because quite clearly, it is a question of a choice made by a number of people as to who is better than somebody else.It is not a question of eligibility but rather one of discretion and opinion. I share Senator Ward's concern that we have moved from what was in the previous legislation, which at least always acknowledged that the Government could, in the final analysis, appoint an eligible person to the Bench, to a situation where section 52, on the face of it, seems to prohibit that, and I think it is inconsistent with the Constitution to do that. If, for example, the Attorney General reports to the Government of the day that a given barrister has been turned down eight times by the commission, which seems to take a poor view of him or her, I do not believe it will be prohibited by law from appointing that person no matter what its view of his or her merits may be. There has been a change between the old text and the new text, and I think that text has a constitutional dimension to it that we cannot ignore. If we are going to say a majority on this commission can veto anybody from becoming a judge, even though he or she may be eligible and even though the Government of the day might consider the person a very suitable person to appoint to, say, the Supreme Court, which is a very important court, and if it is to be able to do so constantly and without giving reason but simply by producing three other nominees, that is constitutionally doubtful, in my view.

I make that point not in a negative way but rather to note the change of tone with this Bill. Section 52 may be simple, but it may be constitutionally infirm and simplistic if it has the effect of telling a Government of the day that four or five judges do not take a good view of a given person and that, therefore, it may not under any circumstances appoint him or her. It will not do it in terms whereby it will say the person is unsuitable; rather, it will keep coming back with three other people every time and the name of the person in question will never appear on the list going to Government.

A point I raised on many occasions when the Bill of the then Minister for Transport, Tourism and Sport, Shane Ross, was before the House relates to the problem with the rigid way in which the Bill, if enacted, will work. If a vacancy appears in, say, the Supreme Court and a judge of the Court of Appeal is appointed to that position, a High Court judge will be appointed to the Court of Appeal, so there will be a trickle-down consequence over three, six or nine months under this procedure because each vacancy will not be created until the previous appointment has been made. I raised this point previously and I know the then Minister for Justice, Deputy Flanagan, had to put up with me at great length in that regard, but we do not have to ignore it. If each successive vacancy has to be advertised, interviewed for and filled, just a simple trickle-down of that absolutely classical kind will take the bones of one year. We have to think very carefully as to whether that is a good idea, and there is a way around it. There should be some system in the Bill for people, such as High Court judges, to apply to be interviewed, if that is required, and then to be "on stock" and available for recommendation, rather than have a particular vacancy arise and then require people who are already in the hunt to go through an entirely separate process. I ask the Minister to take on board the fact that is going to be a serious problem with this legislation. It will slow down judicial appointments significantly where that kind of situation arises.

Judges coming up to retirement frequently have to absent themselves from hearing a case because they know it is unlikely they will still be on the Bench when it comes to deciding the case. An obvious way around this was proposed in one of the amendments the Independent Group of Senators tabled on the previous occasion, whereby judges would be allowed to finish their cases after their retirement at the invitation of the president of the court.

Lastly, I echo what Senator Ward said about the absence of people from the legal professions being on the council. It is very simple to take them out, in order that any allegation of cronyism and so on can be easily rejected, but people have a great knack - especially unsuitable people - of appearing plausible to people who do not know them. They can do wonderful things at an interview. There are now thousands of solicitors and thousands of barristers and a growing population of more than 5 million, and the Judiciary will not know an awful lot of the candidates who are before them. It is, in my view, a good thing that somebody would have a clear view of the reputation of the candidate, whether he or she is a crank, extremely unpleasant personally or whatever the case may be. That kind of reputation is relevant to choosing a good judge. To ask people on the basis of a plausible interview and a good paper CV to make an appointment ignores the opportunity, which I think is a valuable one, for a litmus test of whether the person is, by reputation, suitable to be on the Bench. I think the Bill is deficient in that it excludes that possibility.

Nevertheless, I welcome the Bill and hope we will have good debates on Committee and Report Stages.