Michael McDowell (Independent) | Oireachtas source

This goes to the heart of the constitutionality of this legislation. For the first time the Oireachtas is saying to the Government people may be eligible for appointment and may be entirely qualified for appointment, but because the commission believes other people are more qualified, more eligible, better or more diverse, the Government may not appoint a particular person who is otherwise suitable. The Bill makes it unlawful to make that person a judge.

Does the Department appreciate that if, for instance, a vacancy for the position of Chief Justice came about unexpectedly by resignation, death, illness or whatever, as a result of this legislation, assuming that two Supreme Court judges apply and are recommended on the list and that one member of the Court of Appeal applies and is put on this shortlist of three, it becomes illegal for the Government to appoint any other serving member of the Supreme Court? Therefore, as a matter of law, when the position of Chief Justice becomes vacant, it will be illegal to appoint one of a majority in the Supreme Court to that position because a commission of four judges and four laypeople did not include them in a list. In other words, it will become illegal for a majority of the Supreme Court to be made Chief Justice every time it happens. A majority of ordinary members of the Supreme Court will be effectively made ineligible by law because at the very best only three members of the court could be on a shortlist.

There might be two members and theoretically there might be one member. However, let us be practical. Let us say that one member of the Court of Appeal is recommended and two members of the Supreme Court are recommended. For the first time in the history of the State, the Bill is proposing to make it illegal for the Government to look to a majority of members of the Supreme Court when considering who the Government wishes to be Chief Justice. I find that to be an astonishing proposition.

These people have made it to the Supreme Court; the Cabinet knows who the members of the Supreme Court are. The Cabinet is well capable of determining whom it would wish to appoint as Chief Justice. It might decide that it wants a woman on this occasion and the list may contain three men. It might want to have a liberal and is suddenly confronted by three conservatives. It becomes illegal to look to other members of the court. The Government's right under the Constitution to appoint the Chief Justice is pared down to a small minority of the existing members of the Supreme Court.

I would like to understand how that can be constitutional. The Cabinet knows all the people who are all functioning as Supreme Court judges and they have got that far. How can it be right to say that the majority of them, five or six of them, may not be considered by the Government because a body consisting of four judges and four laypeople came up with a different recommendation? It is a dramatic reversal of our constitutional order. As far as I am aware, nowhere else in the common law world has a government been prohibited as a matter of law from selecting one of the Supreme Court justices from becoming Chief Justice because other judges thought that other people were better.

The members of the Supreme Court are men and women of extraordinary talent and ability. They have been entrusted with the most far-reaching functions. It is not right to say the Cabinet may not decide which of them is to be the constitutional officer, namely, Chief Justice, because a group of judges - it will be a group of judges - have effectively determined that they are not on a list.As a proposition of constitutional law, that is very far-reaching. I wonder why the Government will not have a constitutional referendum if it is going to curtail the powers of Government to do this and give this House and Dáil Éireann the right to tell future Governments that, every time the position of Chief Justice comes up, a majority of the Supreme Court will be ineligible to be appointed. I cannot see any reason that should be so. The previous Bill at least had a different arrangement for the positions of Chief Justice, President of the High Court and President of the Court of Appeal to reflect that fact. We are now in a position where the Judiciary will effectively select the Chief Justice. Senator Ward's proposal for anybody to have a casting vote is not acceptable. A group of four judges will effectively determine this because the four laypeople will have very little input. The group of four judges will determine who in the Supreme Court will be on the short-list of three and, by definition, say to the Government that the remainder, who are the majority of the Supreme Court, cannot lawfully be made Chief Justice. I find that an astonishing proposition of constitutional law.

It has never been alleged that a person who was made Chief Justice was unsuitable for that position. This is a solution in search of a problem. It has never been suggested that any Cabinet looking at a Supreme Court could be told that the majority of the court are now ineligible for appointment because of an Act passed by both Houses of the Oireachtas. I take this opportunity to ask that consideration be given by the President, using his powers under Article 26, to refer this to the Supreme Court to determine whether it is within the competence of these two Houses to bring about such a radical transfer of power and discretion from the Executive, elected by and answerable to the people, to a group of people who are not answerable at all to the people in any shape or form with regard to the choices or recommendations they make. That is what we are doing. We are actively saying that the people who are elected to govern and, under the Constitution, are elected to advise the President on who should be appointed, are to be divested of that function, and that people who have no accountability of any kind whatsoever to the Irish people should be given the right to exclude from eligibility to be made Chief Justice the majority of the members of that court at any given time. I think that is a terrible mistake.

I cannot understand why it is being done. I was in Cabinet when two people were made Chief Justice. I will not deal with why they were or were not made Chief Justice but it was a decision made by the Ministers at that time. It was made by a group of people selecting the person who they believed best served the Irish people as Chief Justice. In both cases, their choice was eminently correct, but it might not have been the case that either of those two people would have been selected if the matter had been handed over to a group of eight people dominated by four judges, who might or might not have different views from the Cabinet about who was most worthy of appointment to that position.

Nobody has ever explained to this House why the Government changed and abandoned the provision in the last Bill. The same Department has come with two different Bills. Why was it changed to create a situation where the majority of persons in the Supreme Court shall now become ineligible for appointment? I think it is an insult to them that, by statute, a lottery is effectively held among the members of the Supreme Court and good, sensible, reasonable candidates for the position of Chief Justice are rendered ineligible by a decision of the outgoing Chief Justice, the presidents of various courts, and one or two judges appointed by other judges. I do not see what responsibility or accountability there is in that or why that should be the case in a democracy.

I also want to make the point that it was represented to this House that this was in accordance with international norms. It is not. This Bill is not in accordance with common law norms internationally. This cannot and has not been done in Australia, New Zealand, Canada or the United States of America. If we are being told that international best practice is now represented by what happens in European Union states, leaving out Council of Europe member states for the time being, which includes countries such as Russia, they have an entirely different system. The Supreme Court in Ireland has functions which the Conseil d'État has in Paris. The German constitutional court in Karlsruhe has different functions too. It is not by any means the case that, for some reason, to stay in tune with the European norms, we must make the position of Chief Justice tenable only by somebody selected by four judges against the wishes of a majority of the Government. The common law way is for that matter to be entrusted to the Government, which is elected by the people and accountable to Dáil Éireann for the choices that it makes.