Michael McDowell (Independent) | Oireachtas source

Regarding amendment No. 33, I have been considering what the Minister said on the last occasion we discussed this Bill. She made the case that what was proposed in this Bill was in line with international practice. I was a bit taken aback by that because clearly it is clearly not in line with the practice in America. I am not holding that out as the great model but I am just saying that is the case. I then checked on Canada, Australia and New Zealand and I found that nothing like what we are proposing here was proposed in any of those jurisdictions. They are significant common law countries. The only country that has similar provisions, in some respects, is the United Kingdom and it has different provisions for the various different courts.

I genuinely believe there is a constitutional issue here. I wrote about it in The Irish Timessince we last met to discuss this Bill. Nobody is infallible when it comes to the Constitution, as we have just learned in the last week. Things can happen that people did not see happening. Regarding the CETA treaty, it should be said that the matter was to be put before Dáil Éireann and the Government decided to guillotine it, with 55 minutes for the total debate. The Green Party kicked up a fuss and as a result it was sent to a committee. The 14 members of the joint committee divided equally on the issue, with seven saying there were constitutional issues and it went back to the courts under Deputy Costello's challenge.

The constitutional implications of this Bill are fairly substantial. We have made provision for the Chief Justice and nine ordinary members of our Supreme Court. If a vacancy occurs in the post of Chief Justice, three names are to be put on a shortlist to be sent to the Government and it is to be attempted to make it illegal to appoint anybody other than somebody on the shortlist to that position. Allowing that some Court of Appeal or High Court judges may be on the shortlist, rather than just ordinary members of the Supreme Court, six or seven members of the Supreme Court will be excluded from eligibility to be appointed Chief Justice at the hands of the Government if such a vacancy arises. That is remarkable. These seven people - or six or five, depending on who else is on the shortlist - are up there in the Supreme Court and the Government will have had an opportunity to see them administering justice there for many years. The Government is then to be told it cannot appoint a majority of the Supreme Court but can only appoint whoever this commission decides should have their name put before it. There is a constitutional issue there.

This Bill refers to merit. Merit is almost like picking up mercury with a fork. It is very hard to define what it is. Is a conservative more meritorious than a liberal? Is a Europhile judge more meritorious than a constitutionalist? Those are the issues that arise when appointing somebody to the Supreme Court. No matter who is in office, those issues will arise. What kind of person will they be? Are you appointing somebody who is radical in temperament or somebody who is extremely conservative in temperament? They can both be claimed to be meritorious. If they are both interviewed by this commission or a subcommittee of the commission, can they be asked questions about those kinds of issues? Can they be asked if they are conservative, liberal or radical, pro-European or Eurosceptic or whatever? None of those questions seem appropriate to ask people, particularly practising members of the Judiciary, to answer. Maybe the Minister will help us with regard to this issue. The Bill states that when the shortlist is sent to the Government, the commission is obliged to inform the Government that it has interviewed the candidate who is about to be appointed.I want to know whether that interview is supposed to happen before or after he or she is short-listed. Is it to be the case that it is sufficient to interview the candidate after he or she has been short-listed or is it to be the case that it is to be done before being short-listed?

Moving on to amendment No. 36, this is where the Minister, I have to warn her, is about to walk onto a landmine with the Bill as currently constructed. Amendment No. 36 is designed to create a situation in which, if somebody who is a member of the superior court is appointed to a position either in the next court above, to the presidency of a court or whatever, and a vacancy arises on that account in the court in which he or she was serving prior to his or her appointment, it is quite possible, for example, if an ordinary judge of the Supreme Court is appointed Chief Justice, that the question could arise as to who should succeed that person as an ordinary judge of the Supreme Court. As I read this Bill, one has to start the process all over again. One cannot, as is the case now, at Cabinet state that Ms Justice so-and-so is being appointed to the Supreme Court, that creates a vacancy in the Court of Appeal and that the Cabinet will appoint A or B to fill that position, that she happens to be a High Court judge and that the Cabinet will fill that as well and there is a shuffle upwards of positions. Under the Bill, if it is passed, the consequential vacancies will have to be filled one-after-another because one cannot anticipate that it will be an ordinary judge of the Supreme Court is being made Chief Justice or a member of the Court of Appeal. One cannot advertise the vacancy in either court on the assumption that that will happen. It could be an ordinary judge of the High Court who is made Chief Justice or whatever. The process has the requirement for interviews, advertisements and invitations for applications.

It is interesting that the Bill prohibits one from putting in a standing application. One cannot, as a member of the High Court, state, if any vacancies occur in the Court of Appeal, consider him or her as applying. That is prohibited by this Bill. The process has to be run repeatedly. With the best will in the world, is an appointment duly made in accordance with this process to take place in respect of any vacancy within three months of its arising? If an ordinary member of the Supreme Court is made Chief Justice, a judge of the Court of Appeal is eventually found to be short-listed and approved by the Government to fill that vacancy and a High Court judge is eventually found suitable to fill the Court of Appeal vacancy, that will take at least nine months. Why should we do this to ourselves? Why should we create such a tortoise-pace system of appointments? Why should it not be open to the Government to state that it knows who the candidate is for Chief Justice, that creates this vacancy, the Government would consider A, B and C should fill the vacancies that arise from that, and the Government does not consider it necessary to start advertising all of those positions or to leave them vacant for up to nine months, if this Bill is enacted in its present form.

I raised this issue in relation to the previous Bill, which was the project of the former Minister for Transport, Tourism and Sport, Mr. Ross, and I got no satisfactory answer. I got many answers from the then Minister for Justice and Equality, Deputy Flanagan, but he had no way of answering what would happen to this cascading line-up of delay in filling vacancies. That is where this amendment comes from. We tabled it on the previous occasion. We got no explanation as to whether it is satisfactory that it takes nine months to fill three vacancies which arise in the manner that I have described.

It should not be attempted. It is wrong in principle to attempt to do this. It is wrong in principle to say that if one appoints somebody to be Chief Justice and that takes three months with interviews, etc., and that if that person is already a member of the Supreme Court, it takes another three months to fill that position.

This is a dog's dinner of an approach in terms of legislation. When I was Minister for Justice, Equality and Law Reform and when others were Minister for Justice, and others were Attorney General, one sat down and asked what we would be doing to the Judiciary if we appointed A to a position and who would be the right person to achieve gender balance or whatever else in his or her wake. The Cabinet came to a rational decision among the people who were there on the proposal of the Minister for Justice, with consultation of the Attorney General and the party leaders in a coalition Government and stated that this is effectively the series of changes it would make that afternoon. That is entirely impossible now.

I take it the Minister accepts what I am saying that if there are three appointments in a chain like that, it would take nine months at the earliest to fill them. If that is the case, the Minister should accept amendment No. 36 and bring some level of sanity to the problems which this legislation is bound to create.