Michael McDowell (Independent) | Oireachtas source

There would be four judges in this group, two of whom have been elected by the majority of the judiciary and two of whom hold office as presidents of two courts. They would decide whether a judge is eligible for promotion from now on. As I said in the case of the Supreme Court, we are now faced with a situation whereby, if this becomes law and has the meaning the Minister of State said it had on a previous occasion, either three or two persons would be recommended for a senior position, or possibly even one, theoretically, and the Government would be obliged to make that appointment even though other people were seeking that position. Effectively, this means that the Government's discretion is reduced to nothing, in the extreme case, or to practically nothing in the case of two or three appointments when, as I said, dealing with the ordinary membership of the Supreme Court, which has eight members. One of those members would, in effect, be in a position, along with the other judicial appointees, to determine who is or is not eligible for appointment to that job and the Government would have no discretion to appoint any of the majority of the Supreme Court.

To leave aside the constitutionality of that, I ask the Minister of State to indicate, as a matter of policy, why is it considered that the Government should not have a choice between eight ordinary members of the Supreme Court when making a decision as to who should be Chief Justice? Let us forget about the Constitution altogether. Why is it that a majority of this court will, through a decision of a group of people, only one of whom is a member of the court, be rendered ineligible? As a matter of policy, why is that important? I will go back to judges appointed in the past.I do not want to embarrass any judges who are around now but William O'Brien Fitzgerald was appointed by the Lynch Government rather than some of the existing more prominent members of that court, including great jurists such as Judge Henchy and Judge Walsh. They said they wanted a different person, for reasons of State, to occupy that position. The reason of State was that they believed the Supreme Court at the time was being excessively activist in its approach to its jurisprudence. They wanted to insert a damper in the judicial process, which was their entitlement to do. He was an excellent Chief Justice, if somewhat unexciting. He did what he was intended to do and that was to take a conservative view of the court's function.

Looking back at people who have been appointed Chief Justice by successive Cabinets, it is a choice they make conscientiously. They think about it. They think long and hard about it. They look at the implications of one judge rather than another, liberal judges and very conservative judges, and they look at the direction of the decisions they have been making. Quite reasonably, in those circumstances, they say the court is veering too far in this direction or that direction and they want to make its president somebody who has a different view, or alternatively somebody who shares that view so as to make sure that remains the attitude of the court.

That discretion is vested in the Executive and it is a decision which elected people, accountable to Dáil Éireann, are given by the Constitution. It is a responsibility cast on them and on nobody else. I refer to the infamous Bill proposed by Shane Ross when he was in opposition. As part of his obsession with the Judiciary, he wanted to have every candidate for judicial office vetted by a committee of Dáil Éireann on which the Opposition, and I do not know how he managed this, would be in the majority. Only persons recommended by such a committee, curiously by a majority of the Opposition, would be eligible to be appointed. What is wrong with that as a method of doing this? Why not trust Deputies with the appointment of judges if you are going to trust judges and four lay people selected in the manner suggested here with that discretion?

The underlying thing is that the independence of the Judiciary has to be preserved. That is the underlying constitutional value. If it is regarded as inconsistent with the independence of the Judiciary that the Government of the day in Ireland can do what the Governments of New Zealand, Canada and Australia do, that is, recommend to their respective Governors General the name of a person to be appointed as a matter of their discretion, and if that is to be prohibited by law, that is giving the two Houses of the Oireachtas the power, effectively, to amend the Constitution. If this Bill is passed, what was the constitutional function of the Government last week will cease to be its function. I do not see where the right is vested in the two Houses of the Oireachtas to do that. If we wanted an American system whereby a judicial committee of the Senate considers a nominee and vetoes that person or does not appoint him or her, that would be in the Constitution. If we wanted to divest the Government of the power to directly appoint a judge to the extent that an American President requires concurrence of one House, that could be in the Constitution but it is not.

Is it equally open to the Oireachtas to say, as we are saying with this legislation, that the views of legal practitioners are irrelevant and may not be part of the procedure at all? The people who see these people operating on the ground dealing with litigants, who know all these things, have some insight as to what kind of judge this woman or man really is, which fellow judges do not have and lay people on this commission will never have. Are they up to the job? Are they brusque? Do they take a careful approach or a less careful approach? Are they judicial in their temperament? Those things are far better known by legal practitioners, for instance, than by fellow judges, especially when considering the appointment of practitioners to the Bench. Is the Legislature at large to decide the composition of a judicial appointments commission? If we say on this occasion that it is, and if an amendment is proposed at some later stage, it will be for the Supreme Court to decide, in the end, a challenge as to whether that amendment undermines the independence of the Judiciary. The method of selection here is not very independent.

I was at the funeral of the late Chief Justice John Murray, where the former Attorney General Paul Gallagher reminded everybody that the independence of the Judiciary is not a right vested in privilege of the judges; it is a duty they owe to the rest of society. If this commission comes up with people who, generally speaking, do not accord with the approval of the populace at large on a consistent basis, who can remove them? Who can say it got that wrong? Who would even know if it got it wrong? Who will know what decisions it made and who it excluded? From my perspective, the argument that this improves the independence of the Judiciary confuses the proposition that somehow members of the Judiciary are an elite who need not be accountable, even to their own composition. One country where something like this has happened is India, where the supreme court of that country began to take on itself massive powers and kept telling the Houses of Parliament in India that these were derived from the constitution. It then denied the Houses the right to amend the constitution to curtail these powers by saying these were so fundamental to the rule of law that they could not be amended by Parliament and they became a self-selecting group of people. The Indian constitution provided that in appointing members of the Supreme Court, the Government of India had to consult with the chief justice of that country.The Indian chief justice and a majority of the supreme court of that country decided that term “the obligation to consult with” was the obligation to get the consent of the chief justice. They told the Indian Government that it could not appoint people that the court rejected. That is what happened in India and we are going down that road here.

Some lawyers have pointed out to me the question of how anybody will have the right to challenge this Bill if it is passed. Who could challenge it? Would a barrister with 12 years’ practice who is eligible and who applies, but is rejected, be affected by it? Is the citizenry at large affected by legislation that takes away from the government that they elect and gives an important constitutional function to a different group? Perhaps any citizen is entitled to challenge this on that basis. It may be that the President will refer this legislation to the Supreme Court under Article 26 to see whether the Supreme Court believes that it is lawful for the Oireachtas, in this particular way, to leave the Government with no discretion whatsoever. That is where we are going with this section.

It has not been justified on constitutional grounds at any point that I can see. The Government has not outlined the reasons it believes that it is lawful to trammel its discretion, or that this House and this Government can surrender a right for future governments to appoint judges in this way. Could the whole thing be repealed? Of course it could, and we will be back to square one. Is it open to the Executive of the day and the two Houses of the Oireachtas to water down the Executive’s constitutional right to determine who should or should not be Chief Justice, members of the Supreme Court and the like? I say it is not.

I have to protest the purpose of this section in the strongest possible away. With the exception of the zeal of the former Minister, Shane Ross, this legislation would never have seen the light of day. He was pressing for it, demanding it and, in his off-stage remarks, accusing the Judiciary of being effectively a self-serving crony clique, the mode of which had to be reformed in order to carry out the functions of the Government. Going back, it was something I never had to do as Attorney General or as Minister for Justice, Equality and Law Reform. I would love to see the opinions at the time when the Judicial Appointments Advisory Board was established as to how far the Executive could go in trammelling the discretion of the Government. I do not believe that at that time anybody considered that the Constitution allowed to make it unlawful for the Government to appoint an ordinary judge of the Supreme Court to be Chief Justice. For one thing, and let us be clear about this, no promotion of a judge required any outside influence at all. The Government was free to appoint any High Court judge to the Supreme Court or whatever, or any Circuit Court judge to be High Court judge, for that matter.

We are now in a position where somehow, somebody has decided that the Constitution means something different from what it used to mean at the time that the Attorney General, Dermot Gleeson, introduced the Judicial Appointments Advisory Board legislation. I have not seen where anybody says precisely why that is. Why was this not done in whenever it was – 1994 – if it is constitutional now? I do not see any excuse for a failure to tell us precisely how it comes about that there is some problem now in the perception of the Irish Judiciary that requires that a method that has served this people extremely well since the foundation of the Free State and the enactment of Bunreacht na hÉireann in 1937 is somehow defective and different people are entitled to make decisions for the Government, instead of the Government of the day.