Michael McDowell (Independent) | Oireachtas source

Again, the purpose of this amendment is to rescue the Bill from nonsense. It was pointed out to the then Minister, Deputy Flanagan, that the previous Bill contained the same mistake. If the Government appoints a member of the Court of Appeal or an ordinary member of the Supreme Court to be Chief Justice, a string of vacancies can arise as a result. At present, it is perfectly open to the Government to say that someone has been appointed to the Court of Appeal, which means there is a vacancy and that so-and-so will be moved from the High Court to the Court of Appeal to fill it. This can be done in an afternoon.

There can be three links in the chain. When this becomes law, if it were ever to do so, it would mean that if a vacancy were filled one afternoon at the Cabinet it must then start from the very beginning the whole process of filling the vacancy thereby created. To take an example, currently, if an ordinary member of the Supreme Court was made Chief Justice on the retirement of the Chief Justice, if a member of the Court of Appeal was considered by the Cabinet to be somebody who should be appointed to the Supreme Court and if a judge of the High Court was considered as someone to be appointed to the Court of Appeal in turn, the Cabinet could go through all three steps in one afternoon. As I see the matter, it will take between two and three months on a very favourable view to go through the entire process with advertising, interviewing all of the candidates and having meetings for each step. It means the series of vacancies will take nine months to resolve. It could be six months.

What I cannot understand about the Bill is that it was deliberately crafted to state that there cannot be standing applications. High Court judges cannot ask to be considered as candidates for vacancies that rise in the Court of Appeal. They cannot do this. There cannot be standing applications under the Bill because it has been crafted to state the only occasion on which the process starts is when the vacancy arises. At present, the Judicial Appointments Advisory Board, JAAB, takes existing applications and moves with them. It does not tell people that they have to start again and go back over everything. It does not interview everybody again. It has a much lighter touch approval or disapproval mechanism. If a vacancy arises at present, JAAB can state that it already has 20 names but that it can place an advertisement if the Government is not content to make an internal promotion within the Judiciary.

The Bill requires a rigid sequential system whereby one vacancy is filled and if this creates another vacancy, the Minister will have to inform the judicial appointments commission of the situation, which will have to advertise the position. It cannot take old applications out of the shoe box and look at them. It cannot look at the person who came fourth in the run-up to a shortlist of three on the previous occasion and state that the individual in question will do. There will be none of that. I find it very difficult to understand how anybody who has any practical knowledge of how the system works would say that the Government cannot fill three positions in an afternoon. That is the situation at present.

If it is necessary, which I do not believe it is, for existing members of the Judiciary to start filling out forms every time a vacancy arises, so be it.However, I would imagine that a Court of Appeal judge should be able to say via letter that he or she would like to be considered if there is a vacancy in the Supreme Court and would be interviewed for it if the Government wanted, but that he or she did not want to start filling out essays about himself or herself every time there was a vacancy requiring a separate application. The Government might well decide to appoint the President of the Court of Appeal in the event of a vacancy in the Supreme Court because it does not want to complicate life and the president is the person it wants to appoint. This is what would happen currently. Now, however, all of that is to be swept aside. This amendment would avoid that.