Michael McDowell (Independent) | Oireachtas source

This is an obligation imposed on the procedures committee by subsection 5. Under paragraph (h), it shall have regard to "the need for good standards of communication with applicants for judicial office, and the provision otherwise of a good standard of service to them in respect of applications made by them under this Act".A very simple question arises. They have to acknowledge it. It would be remarkable if they did not even say they acknowledged receipt of someone's application, but I am asking a simple, unequivocal question, to which there is a "Yes" or a "No" answer. Will they be told, yea or nay, that they were or were not shortlisted, or will it be kept secret from them? Let us imagine that I am a member of the Supreme Court and applying for appointment as Chief Justice. Will I be told "Yes" or "No" in answer to the question as to whether I was shortlisted for the job? If, during my entire career as a judge, I apply for promotion three or four times, will I be told "Yes" or "No" as part of the process on each occasion, that I have or have not been successful? The relevance is simply that if the unsuccessful candidate can be told that he or she has failed to make the short list, it seems to be grotesque that the Government, the constitutional duty of which it is to make the appointment, should not be given the information. Why am I entitled to know whether I am or I am not on the short list as an applicant but the Government which makes the appointment is not entitled to know whether I was an applicant in the first place? To me, that is the major shortcoming of this provision.

There may be somebody in the Attorney General's office or the Minister's Department who believes section 40(3) immunises the Bill from all challenges on the basis that the Bill acknowledges that the Government is free to act entirely outside the procedures laid out in the legislation. That would be sound advice if it were not also a feature of the legislation that it will become a criminal offence to tell the Government that somebody has applied for the job and not been shortlisted. I refer to whether it will become a criminal offence to impart that information to the Government in either of two ways. What will happen if the unsuccessful applicant who is horrified that he or she has not been shortlisted and has been so informed - the Minister has not given us a clear answer to the question as to whether he or she will be informed - rings the Attorney General to say, "This is the third time I have been turned down for promotion. Would you mind telling the Taoiseach that I have been turned down on three occasions?" Will the Attorney General be free to do so? Alternatively, will the Attorney General be free to say to the Cabinet that he believes the short list is grossly deficient and that there were four better candidates than the three on the short list before it? That is the crux of the issue we face and we have to have a clear and unequivocal statement from the Minister on it. We have had his clear view that he will make it a criminal offence for the Attorney General to impart the information to the Cabinet. That is one thing. However, we have not had his clear exposition as to whether the commission will be entitled or obliged to inform unsuccessful candidates of their failure to be shortlisted.

The last point I want to make before we adjourn-----