Michael McDowell (Independent) | Oireachtas source

That being the case, it seems the effect of the Bill and the refusal to accept this amendment is to say that, under the Constitution, the Oireachtas can tell the Government that it may not appoint certain people who are eligible to be made judges because they have not been recommended by a body that is not the Government. The Constitution refers to eligibility as a matter determined by law. I have no problem with statute stating that somebody should have seven, ten or 15 years' experience as a lawyer to be deemed eligible but we are left with a strange conundrum here. Is it seriously being stated that, if the Attorney General informs the Government that three or four people whom he or she considers to be entirely suitable for promotion from the Court of Appeal to the Supreme Court, for example, have not been recommended by the commission, the Government cannot appoint one of these people?

I will go back to the point that, as things stand, it is a matter of statute law that any judge of the High Court or the Court of Appeal is ex officiodeemed suitable to preside over cases in the Court of Appeal or the Supreme Court on the invitation of the Chief Justice. If, for whatever reason, the Chief Justice wishes to ask a member of the Court of Appeal to sit as one of the judges in a Supreme Court decision in a court of three, five, seven or nine, such a person is eligible to do so. However, what is being said here is that such a person, although eligible and entitled by statute to act in either of these courts if invited by the Chief Justice or the President of the Court of Appeal, as the case may be, may not be made a member of the court in question. The conundrum I identify here is that if everybody who is a High Court judge is ex officiosuitable to be invited by the Chief Justice to serve on the Supreme Court on a one-off basis, how can the Government be prohibited from making them a member of the High Court or the Court of Appeal under the Constitution? It seems that we are giving a veto to the judicial appointments commission, although we are not admitting that is what we are doing. We are telling the commission that it may constantly say that John or Josephine Bloggs, who is a senior counsel, senior solicitor or whatever, is not to be on the list and that, because it has said this about that person and although that person may already be a judge, the Government is prohibited by statute from making him or her a member of a court on which he or she is entitled to serve in certain circumstances. I doubt the constitutionality of that.

I know the Minister is not going to reveal to us the Attorney General's advice but, on this fundamental issue, the House is entitled to hear the basis on which the government of the day could be prohibited by law from appointing somebody by a concerted decision on the part of a judicial body of which four of the eight voting members are laypersons. What it really means is that the Judiciary could blacklist somebody from appointment even though he or she could serve as a judge by reason of experience and is legally entitled to do so. It also means that the Judiciary could decide that a particular member of the High Court or the Court of Appeal should not be appointed to an appellate body, whether the Court of Appeal or the Supreme Court, effectively on its own say-so. I find it a somewhat repugnant idea that we are, in effect, giving a veto to the Judiciary with regard to who can be appointed to the courts at all and who of a number of judges can be promoted from the Circuit Court to the High Court, from the High Court to the Court of Appeal or from either of those latter courts to the Supreme Court. We are saying that the Judiciary can consistently naysay an applicant.

We had a detailed discussion about the Attorney General's role on the previous occasion. The Attorney General would be in a position to inform the Government if a blocking majority on the judicial appointments commission seemed to have taken the view that a particular judge should not be a member of the Supreme Court and has consistently nominated three other people rather than that person or excluded him or her from the list of persons recommended for appointment, which is one of the justifications for having the Attorney General on the council. This is a fairly fundamental point. Under the Constitution, does the Oireachtas have the right to tell the Government that, although somebody is eligible for appointment, it is prohibited as a matter of law from appointing him or her? It is a fundamental issue because, in my view, it is a rewriting of the Constitution. It is saying that, while heretofore a government has always been accredited with the right to select a judge where that person is eligible, it is now prohibited from doing so simply because four judges constantly say not to, although not through naming the person or putting a black mark against their name but by constantly putting three other people forward and leaving the person in question on the sideline.That is a novel proposition, constitutionally. I have a doubt as to whether it is within the capacity of the two Houses of the Oireachtas to enact a law directing the Government to do this. The Minister has mentioned that there will be a list of three and that the Government should have discretion. Why should the Government have discretion? Is that constitutionally required or is this just a concession to the Government that it can choose between three? Why should the Government have such a discretion if it is permissible for these Houses to tell it how big the shortlist can be and how it can be ordered from one to three or whatever? If those powers are open to the Legislature, it raises the question of why the Executive, under the Constitution, should have any discretion at all. It is difficult to justify the democratic discretion that Senator Ward has mentioned on previous occasions if it is purely a discretion held by the Government on the grace and favour of the two Houses of the Oireachtas from now on.

I would go back to the former Senator, Shane Ross, and his efforts in the Dáil. I am not talking about the legislation brought in by the former Minister, Deputy Flanagan. Prior to that, Mr. Ross attempted to introduce legislation, the gist of which would have been that a committee of the Dáil, the majority of which was not Government Deputies, had to approve any member of the Judiciary. That, to me, was manifestly unconstitutional. I do not understand how the two Houses of the Oireachtas can say to the Government that they will give it discretion up to three and de facto give four judges the right to veto any candidate for any judicial office, but the Government still remain the people who can advise the President under the Constitution as to who should be appointed. It is a serious issue with this legislation. I do not know if the President will in the fullness of time, if this legislation comes before him in this form, ask himself whether he should refer the matter to the Supreme Court to see if it is legitimate. Why is it legitimate that a list of three dictated by four judges can prohibit the Executive from appointing or promoting somebody who is otherwise eligible to a particular court? We are not talking about people being made district judges on a wet day some afternoon. We are talking about who composes the Supreme Court. If six or seven members of the High Court and the Court of Appeal indicate an interest in becoming an ordinary judge of the Supreme Court, why is it constitutional for four judges to choose between them and knock people off the list, thereby prohibiting those people from being appointed to the Supreme Court?

I have said this on previous occasions but I will reiterate it now. As Senator Ward said, the appointment of judges is, in the last analysis, a decision made with executive discretion carried out under the Constitution by people elected democratically to serve as the Government of the country. If there is such a discretion, it seems to me that there must be a question mark over whether it is lawful to tell the Government that a group of four judges has consistently vetoed one member of the Judiciary from being appointed to any particular position. I strongly believe that it is not constitutionally permissible to do that. In this context, I remind the Minister of what is in section 42. I know we are not discussing that now but it is hugely important when we consider whether this amendment is or is not permissible. Section 42(1) states:

The Minister may request the Commission to make recommendations for appointment or for nomination for appointment to judicial office, as the case may be, where— (a) a judicial office stands vacant, or

(b) he or she reasonably anticipates that there will be a vacancy in a judicial office.

If the word "may" really means may, it may also mean "may not" If it means "shall" and, therefore, means it is obligatory on the Minister to request the commission to fill such a position, there are two ways of looking at it. It could be "shall", unless the Government has decided to leave the place vacant completely. The Government might decide there are too many members of the Court of Appeal and since Mr. Justice or Ms Justice Bloggs has retired, it will just leave that place vacant and will not ask the commission to look at the matter. That is one possible meaning of the word "may". If it is absolutely obligatory for the Minister, wherever there is a vacancy that is intended to be filled, to press the switch for the judicial appointments commission to make a recommendation, then the word "may" seems inappropriate in section 42.

My understanding in any event is this. Senator Ward mentioned that there are 20 members of the Court of Appeal. It would be remarkable indeed if among those 20 people, eight consistently sought appointment to the Supreme Court and four members of the Judiciary consistently vetoed five of those eight by putting forward three other persons. That is a remarkable constitutional revolution. I would like to see what constitutional justification there is for doing this. I will not put the matter any further than that.