Select Committee on Legislation and Security debate -
Wednesday, 6 Dec 1995

SECTION 17.

Question proposed: "That section 17 stand part of the Bill."

Mr. O'Donoghue

This section excludes existing judges who apply for another judicial appointment — indeed, who will not have to apply for another judicial appointment — on promotion from consideration by the Judicial Appointments Advisory Board. In other words, if an existing judge wishes to move from his or her present position, it is solely at the discretion of the Government whether that person shall be appointed. That clearly dilutes further the powers, poor as they are, which the Judicial Appointments Advisory Board has under this Bill. In those circumstances, I oppose the section.

If people apply for a judicial position and if it is deemed necessary for them to have to go through the Judicial Appointments Advisory Board, there is no reason that a sitting judge, albeit often in another court, should not also have to go before the Judicial Appointments Advisory Board. To say otherwise defies logic and is inconsistent with the spirit of the advisory board. This creates two classes of applicants, people who are not already judges and people who are judges but, by virtue of their position, do not have to go before the board. This represents a further dilution of the powers of the board; this is why I oppose section 17.

Ms O'Donnell

Under section 17 the board is not to have any role when the Government decides to appoint a serving judge to another post in the Judiciary. I have not heard any arguments which would justify why the board should not have a role in these appointments. I agree with Deputy O'Donoghue's arguments. It seems illogical to exclude promotions from the new procedures we are putting in place. I would like to hear the Minister's justification for excluding a role for the board in these appointments.

Mr. O'Dea

The section seems to introduce an apartheid system whereby a practising member of the Bar who seeks appointment to a vacancy in, say, the High Court — I hope practising solicitors will also be able to seek appointments to such vacancies when the Minister comes back with the result of her deliberations on this matter — would have to go before the appointments board to be vetted for suitability. If a person seeking appointment to the High Court is already a District Court justice or a Circuit Court judge, he or she will not have to be vetted for suitability. There can be a vast difference between suitability for appointment as a district justice and for appointment as a High Court judge. Perhaps the Minister can explain the reason for this discrimination.

Mrs. Owen

The purpose of the section is to exclude from the scope of the board the appointment of existing serving judges to higher judicial office. The effect of the amendment would be to bring them within the board's scope. I am satisfied from my examination of the case that we can decide on the basis of serving judges' experience on the Bench whether they are suitable for appointment to higher office without obliging them to appear before the advisory board.

Not all judges consider moving from one court to another as a promotion. Some opt to remain in particular courts because of their experience and they like working at a local court level. There has not been a major tradition of promotions from one court to another.

The Bill provides that solicitors may be appointed as judges of the Circuit Court. There are already indications that some solicitors who are district justices wish to be considered for promotion to the Circuit Court. We have had the confidence over the years to appoint them as judges and we can see how they operate in this role. However, the fact that they are not excluded under this section does not automatically mean they will be considered every time the Government is making a judicial appointment.

Judges should not have to go before the advisory board because we can see how they work in practice. It is the role of the board to consider applications from barristers or solicitors who are seeking appointment as judges ab initioand it is they who form the vast bulk of appointments.

The most obvious example of judges moving from one court to another is that of High Court judges who are promoted to the Supreme Court. I ask Members to consider whether High Court judges who are being considered for appointment to the Supreme Court should have to go before the advisory board, even though they may have ten, 15 or 20 years experience in the High Court and we know what kind of judges they are. The Government will be able to see for itself whether a judge is suitable for consideration.

I do not know of any Circuit Court judges who have been appointed to the High Court. There probably have been a few such appointments but most High Court vacancies have been filled by people practising at the Bar. Shortly, solicitors may also be eligible for such appointments. The role of the board will be to consider whether barristers or solicitors are suitable for appointment. I do not believe it is necessary for people who have proven themselves as judges to go through this procedure.

Mr. O'Donoghue

In the circumstances and having listened to the Minister's explanation of her position, although I retain reservations about the powers of the board being futher diluted I withdraw my opposition to the section.

Mr. O'Dea

There is a form of reverse discrimination operating here. As the Bill stands, any barrister of more than 12 years standing can write to the Judicial Appointments Advisory Board and ask to be considered for suitability to a position in the High Court or Supreme Court. Barristers who a few years ago accepted appointments to the District Court may be interested in becoming members of the High Court or Supreme Court. I know the Minister can theoretically consider such people but surely they should have the same rights as other barristers to write to the board to be considered and vetted in the usual way and to draw themselves to the attention of the Government. The Minister says that their performance as judges will be taken into account but a district justice is completely different to a High Court or Supreme Court judge and we will not be able to judge people's suitability for these positions by their experience in the District Court.

Ms O'Donnell

I also withdraw my opposition to the section.

Question put and agreed to.

NEW SECTION.

Ms O'Donnell

I move amendment No. 28:

In page 11, before section 18, to insert the following new section:

"18. (1) The Board may recommend any of its members who are members of the judiciary for judicial office.

(2) Where a member of the Board, being a member of the judiciary, wishes to be considered for appointment to judicial office, he or she shall withdraw from the deliberations of the Board concerning his or her suitability for judicial office.".

The purpose of this amendment is to give maximum freedom to the board to make the best decision possible. The previous amendment proposed that the board should have a role in deciding judicial promotions but this was not accepted. This amendment was contingent on the previous one being accepted. The point I was going to make was that if it was accepted that the board should have this role, it must on occasion have power to decide whether a member of the board who is a member of the Judiciary should be promoted. The President of the High Court may be appointed to the Supreme Court but he is to be a member of the board. This amendment proposes that members of the board who are judges may be appointed but should not be present when their application is considered. I will withdraw the amendment because its principle is contingent on acceptance of the previous one.

Amendment, by leave, withdrawn.

Amendment No. 29 not moved.

Sections 18 and 19 agreed to.