Michael McDowell (Independent) | Oireachtas source

These two amendments go to the heart of this legislation. The Government has chosen today to guillotine this debate and to bring it to a close. In effect, this legislation proposes to make it unlawful for the Government of the day to appoint anybody to any judicial office unless that person has been shortlisted by a group of eight people, four of whom are judges and four of whom are laypeople appointed in accordance with this Bill. I want to put the following point on record because people will look at the record of this House. It proposes for the first time in the history of this State to take from the Government by legislation the discretion as to who should or should not be appointed to judicial office from among those people who are eligible for appointment to judicial office.

It goes much further than that. In regard to a nine-person Supreme Court, as the Government will only receive a shortlist of three, for instance, for the position of Chief Justice if a vacancy arises there, it makes it unlawful for the Government to consider six of the nine members of the court for that position. It is possible that five or six of the members of the Supreme Court will be incapable of being legally appointed Chief Justice. That is an extraordinary proposition. It means that four judges, who effectively have a blocking majority, will be able to determine that five of the present Supreme Court, or the Supreme Court for the time being, may not be appointed Chief Justice as a result of a decision of the body which they collectively will dominate.

I am shocked at this full-scale, full-frontal assault on the Constitution. We have a Constitution. We have an independent Judiciary which has served this nation well. It has been selected by the Executive from among those who are legally eligible to serve. There is a distinction between eligibility and those who are, as a matter of discretion, chosen from among the eligible. In other words, if ten people are eligible and well qualified to be appointed, the discretion at present as to which of those people gets appointed to judicial office is vested in the Government of the day. The Government is the democratic institution which makes that decision. I want to emphasise that it is not merely a right of a Cabinet. It is the duty of a Cabinet to make appointments to the Supreme Court in accordance with what they consider to be the good of the country. It is not a right. It is not just a bit of patronage. It is a duty to select people who, in the view of the Cabinet, are the best people for the job, having regard to a number of criteria.

Some of those criteria include the general philosophical outlook of the candidates. Some people's general philosophical outlook may make them suitable for appointment in the eyes of any particular Government, where a successor Government would be unimpressed. With a rabidly pro-life judge, the present Cabinet might decide that, really, they do not want that person's views coming into the balance on the Supreme Court. With a radically politically left or right judge, the Cabinet is entitled to say that it wants the Supreme Court to have a certain liberal-conservative, radical-progressive balance. That is not merely the right of the Government; it is the duty of the Government. For any Minister who serves in the Government and who thinks, “We are only just giving out jobs for the boys. This is just patronage. Why can’t we control when we are handing out patronage?”, that is an entirely false and damaging view of what selecting judges for our Supreme Court is.

I want to make a second point. Our Judiciary is entirely different from the judiciaries of most member states of the European Union and, indeed, most member states of the Council of Europe. Unlike any other common law state, a High Court judge on his or her first day in office can invalidate an Act of Parliament, can release any person from unlawful custody, can overrule by judicial review any act of the Executive and can decide which of two persons was telling the truth in regard to any dispute, and in the High Court, decisions on facts are not appealable unless they can be shown to be perverse. No other member state in the European Union, nor the United Kingdom, accords a judge of the High Court the right to strike down an Act of Parliament. We do.

Our constitutional architecture is such that the ultimate body which decides what the Constitution means is the Supreme Court, acting by a majority. Our system operates on the basis that the Supreme Court interprets and keeps alive, as a living document, and in fact develops the Constitution by judge-made law. Therefore, and this is where this Bill fundamentally and philosophically fails, it is not a matter of deciding on some points system who is the person who deserves appointment on “merit”. What is the difference in merit between a highly intelligent left-wing judge and a highly intelligent right-wing judge? They are two industrious members of the Bench, both versed in the law. What is the difference between them when it comes to appointing one or other of them to the Supreme Court? It is a choice for the Executive. It is a case of: “We do not want that person. We want this middle-of-the-road person” or “We do not want this left-wing person. That is our choice.” Merit means nothing in that context. You cannot say that because someone shares your political or philosophical outlook, they have greater merit than somebody who does not. Even if you could, and this is the fundamental problem, it is a choice as to whether you put a liberal, a conservative, a reactionary or whoever else onto the Supreme Court.

That choice is one to be made by a body which is democratically accountable. This commission is accountable to nobody. If it is the right of the Government to select a member for appointment to the Supreme Court on the basis of their broad philosophical outlook, those on the judicial appointments commission cannot even ask them questions about their political views, their sexual orientation, their basic philosophies and how they actually view the world. They cannot ask those questions because they are not competent to make a decision that a left-wing perspective is better than a right-wing perspective, and they are not even given the function of saying, “We appointed one lefty last week so we will appoint a righty next week and have a balance.” We cannot ask judges to do that.

There is another point that I want to make in the short time that is available to me. Giving the Judiciary the power to effectively create a shortlist does two things.It is an idle pretence that it gives the Government a discretionary choice because it actually prevents the Government from selecting anybody who is not on the list. The Bill is vesting in a committee dominated by judges the right to veto any other person from becoming a judge in the first instance, from being promoted within the Judiciary, or from being made president of a court or Chief Justice. It is giving four judges the right by simply leaving names off the list to sideline any of their colleagues or any person who wants to be a judge permanently. There is no solution for that. Having the Attorney General in there watching what they are doing does not change it.

Judicial politics and judicial cliquishness may determine that the judges, whom we know, who are proven and who are less troublesome, are the people we will push up the system. However, the Judiciary has no right to do that. The sad fact is that over the past 15 years it became the fashion - I hope it has stopped since - that serving members of the Judiciary began canvassing members of the Government as to who should or should not be appointed judges and as to who should or should not be promoted through the various courts. When I was there and when Rory Brady was there, that simply did not happen. I never heard of it happening before my time either that Ministers for justice were canvassed vigorously and sometimes very vigorously by members of the Judiciary asking them to support one person rather than another for judicial office. There is such a thing as judicial politics. The Bill gives this eight-person body the right to veto anybody from appointment in the first instance or from promotion. We will find that judicial politics, not party politics, decides the whole issue.

We have a system that is not broken and therefore should not be mended. We have a system whereby the Constitution states the Government has the choice and the President acts on the advice of the Government. We are led to believe by some people that somehow having a shortlist of three makes this Bill constitutional. If three is constitutional, why should a future Oireachtas not decide that one is enough? Why give it any discretion at all? Why just take away what it has, which is full discretion, and give it reduced discretion? Who says it should be three, two or one? I remember, when Shane Ross persuaded Enda Kenny to include this in his programme for Government, he said it should be three or whatever lesser number is constitutional and they went for three. That was in the programme for Government. That was what he was demanding. It does not save this Bill from being unconstitutional that the Government retains a tiny discretion which prohibits it from selecting somebody who is not on the list. That does not save the Government's discretion, which is a constitutional right and a constitutional duty. I cannot understand for a moment why we are going down this road.

I notice that the long Title of the Bill makes references to the Council of Europe and GRECO. They are not empowered or in any position to amend the meaning of the Irish Constitution. They have no constitutional status whatsoever. I am not just saying that; very senior lawyers in the European Union have told me the Irish system is not at variance with what is required by European law and is in no way invalid. We have a constitution which works, we have a Judiciary which is an admirable model for the whole of Europe. It has been done on the basis that the Executive of the day has made appointments of people of high quality and of independent mind to the Judiciary for 100 years. We are now being told there is some European argument from the Council of Ministers' recommendations, which are mainly aimed at what happens in Poland, Romania and Bulgaria, which mean that somehow for consistency Ireland should regard itself as of the same class.

I will finish on that point. The guillotine is now coming down on this Bill. I hope to God it is referred to the Supreme Court and I hope to God it is thrown out as manifestly unconstitutional.