Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

It is important that we recall the purpose of the legislation we are discussing and the reason there have been calls for reform. The reason is people want to ensure the public interest is served by having people appointed to the Bench solely based on merit. This has not always happened. Sometimes people are appointed not on the basis of merit, but because of political or personal connections. The reason this could have occurred so readily was that, until 1995, there was no statutory regime in place that provided guidance to the Government on how it should exercise its constitutional prerogative to nominate people for appointment.

The current position is that we are trying to put in place a structure that provides advice to the Government. The Minister is no doubt considering the appointment of a Garda Commissioner. When dealing with this matter, he has the Policing Authority advising him, and the Public Appointments Service runs a competition. Although the Government has an absolute statutory entitlement to appoint a Garda Commissioner, that decision is made within the parameters of advice given. If the Minister does not follow advice, it can have a consequence, although he is legally perfectly entitled not to follow it.

What Members are trying to do in these amendments is put in place a statutory regime whereby the best candidates are recommended to the Government. Obviously, the Government itself makes the decision on whether it wants somebody recently appointed. It has complete constitutional freedom to appoint qualified lawyers to the Bench but what we are trying to provide is some guidance for that. That is what this legislation is about.

In respect of the previous amendment, the Minister said there would be constitutional frailty in ranking the individuals recommended by the commission. I disagree; there is no constitutional frailty. The commission can decide to rank three individuals from one to three. Constitutional difficulties do arise, however, in respect of the amendments we are considering, whereby the Government would be required to select one of the three people, and nobody else. Somebody could challenge this and claim it is interference with the Government's constitutional prerogative to nominate people for appointment. That would be problematic. We must realise, however, that there has to be some consequence for a Government that does not follow the recommendation. The Minister is entitled not to follow the recommendation when appointing people to the Bench but there has to be some consequence. If Deputy Mick Wallace is appointed to the Bench although he has not been recommended, the only thing the Government has to do is publish in Iris Oifigiúilthat he was appointed to the Bench and was not one of the candidates recommended by the judicial appointments commission. There is no real consequence to that. It involves no real change. The circumstances are the same as those that exist at present. For that reason, Deputy Jack Chambers and I have recommended that the Government be required, if it does not follow the recommendations of the commission, to publish a reasoned explanation. It would afford full protection regarding confidentiality and the anonymity of applicants.

I cannot support the amendments, however, because they go too far in interfering with the Government's constitutional prerogative. If people in government were really serious about the reform of the judicial appointments procedure — this comment is not directed towards the Minister, Deputy Charles Flanagan — they would be seeking a constitutional referendum on the issue.