Michael McDowell (Independent) | Oireachtas source

I have to say the following: we live in a real world rather than a theoretical world. If I apply as a judge to be appointed to a vacancy on the Supreme Court for which I am interviewed but unsuccessful - I could be in the top three - it would be bonkers for me to have to go through the interview all over again when a second vacancy arises in that court for whatever reason a week later. Why can I not say I applied two months ago, was interviewed three weeks ago and my application stands? Why would one wish to interview me again? Will different people interview me? Will they put different questions to me? It is the same vacancy at the same level and for the same purpose. If I was on the shortlist the last time, why in the name of heaven should I sit down to be re-interviewed for the same job?

We are dealing with "Alice in Wonderland" nonsense here. No company would interview the same person again and again for promotion to chief clerk or another position. The company would remember it had interviewed the person three weeks ago when the person was second on the list and decide to appoint him or her. However, here we have the cruel system of forcing people to go through the whole process again and we are putting down a statutory requirement whereby a person who was interviewed a month ago has to be re-interviewed for the same position because it arises in different circumstances.

If a child was listening to this debate would he or she think it was a reasonable thing to do? If a person applies to be a High Court judge on the death of Mr. So and So, is in the top three and recommended to the Government and somebody else is chosen, does it make any sense not merely to ask the person to apply again and restart the effort of getting referee but to interview the person again by the same or a different group of people? A child would realise that is a stupid thing to provide. No other organisation in Christendom or anywhere else for that matter would operate on that basis and, yet, a rigid approach has been taken whereby it is said not a word of this Bill can be changed now that it is in the Seanad because we might have to bring it back to the Dáil. We are now on a kind of autopilot. This plane is on autopilot to crash into the mountain but we cannot change course. It is too late now because we have made our decision. It just does not make sense.

I am sceptical enough about what would happen to a Court of Appeal judge at interview for promotion to the Supreme Court. What questions will the person be asked? Will the person be asked whether he or she plays golf, has a family or likes walking or swimming? Will it be something to do with the person's temperament as a judge when he or she deals with counsel? If one has been in the Court of Appeal everybody knows whether the judge is good, bad or indifferent on that front. Will the person be asked about his or her general attitudes? Will the interviewers be asked to be completely agnostic as to whether the person before them is a deeply conservative person or a social liberal? Is the interview to have nothing to do with that issue which is fundamental to why the Government might choose one rather than another to be appointed to the Supreme Court?

It is based on a fiction, when the Minister says all appointments will be made on merit, that she can say social conservatism is less meritorious than social liberalism. To say appointments should not be made on that basis to a Supreme Court of a constitutional State is deeply misguided. It is simply wrong to say the Government of the day should not be concerned with whether Mr. Justice Bloggs or Ms Justice So and So is a deep conservative or a raving social liberal on moral matters and other things. It is wrong to think a Government should not say it does not wish to fill up the Supreme Court with that kind of a person.

An appointment is effectively made at the behest of sitting members of the Judiciary because the four lay people will be at a considerable disadvantage in some respects compared with the four judicial people. To say the appointment is made on merit is to suggest that there is some kind of merit test which decides between being left wing and right wing or liberal and social conservative. That does not make any sense whatsoever. It is a choice for Government. The Minister then says that nobody is being disqualified. Yes, people are being disqualified. If one says to a Supreme Court which has a Chief Justice and should have nine ordinary members, that only three of them can be considered by Government, by definition, six or eight of them cannot be considered depending on who the other candidates are.

I do not see any basis on which it is constitutional to say to the Government of the day that somebody who has already been on the Supreme Court for a number of years cannot be appointed Chief Justice, because four judges in particular come up with a list of three which does not include that judge. That is a person being excluded. There is no way around it. It is precisely what is being planned here. That is not what happens in Canada, New Zealand or Australia which are great and very commendable common law jurisdictions. Canada has a written constitution. None of those states has done this to vandalise the method of appointment of people and to restrict the capacity of the Government of the day to make proper decisions in the manner that has happened heretofore with regard to appointing Chief Justices or members of the Supreme Court.

I do not want to be accused of filibustering but I protest very strongly against this Bill and the failure of the Minister to face up to what is in amendment No. 33 and, in particular, amendment No. 36 which is nonsense. It is nonsense to say that it can take nine months to fill three ladder consequential appointments. We have never had to do this until this day. I remember many times the Cabinet said that if So and So was going to the Supreme Court, So and So would go to the High Court, or if So and So had been made Chief Justice, somebody else from the High Court would go to the Supreme Court. It is all done in an afternoon and, sometimes, even Circuit Court people are appointed in the same train of succession to the High Court. It is all done at a Cabinet meeting because the people who are in a position to judge these things put their minds to it and come up with good solutions.

It is ridiculous to say that the Minister will appoint someone on foot of a three-month selection process and another three-month process will be started to fill any vacancies it creates. It is simply ridiculous and indefensible.I will not put it any further than that.

This is a dog's dinner of a Bill. It is not best practice internationally. The Minister mentioned European this and European that. I want to say one thing about Europe. In Europe judges become judges, except in systems like the Conseil d'État in France, through a system of promotion much like departmental officials. People join the judiciary at a lower level and keep moving up. It is a completely different job. People are not independent arbiters, chosen in their 50s to hold the scales evenly between the State and citizen. That is not the common law system. The civil law system in France is radically different from ours. Its concept of judge is radically different from ours.

There is no point in us pretending that because we are members of the European Union our system of common law and adversarial justice, rather than documentary justice done through processes such as we see in the Court of Justice of the European Union, are one and the same. They are quite different. The kind of people we need are quite different. In order to make our system work, we need to appoint people who are wholly independent of the State, people who have not worked their way up through promotion from assistant judge to judge of this, that or the next thing. That is not the system we have.

Our courts system is one of our biggest national assets. In the context of the CETA decision, let us remember that American and Canadian investors in Ireland understand our system of law and have confidence in its ability, transparency and integrity. We do not need to make these deeply damaging changes to the way in which we appoint judges. This is a solution in search of a problem. There is no problem. I ask the Minister, in the strongest terms, to take on board amendments Nos. 33 and 36 to save the Bill from a constitutional challenge under Article 36 or elsewhere.

It is all very well for the Minister to say she has been advised X and Y. So were the people who attempted to pass CETA. I am not claiming to be infallible and nobody else is either. That is all I am saying.