Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael) | Oireachtas source

I have just one further question. I can give a practical example of the interview point. There may be a very conservative Judiciary and a particularly difficult President of the High Court, for example. Mr. Herrick may have been briefing counsel to try to advance civil liberties and the elements are constantly bashing up against each other. The best senior counsels may be trying to advance civil liberties but there might be a clash between a person and the President of the High Court, who may then interview that person for a position on the High Court. We must design systems for the worst in people and not the best. We must try to protect the system against a nefarious influence, such as in that hypothetical example.

There was a point made on the retention of discretion. The Government has absolute discretion from a constitutional point of view, and that is a necessary position for the read across under Article 13.9 of the Constitution about advising the President generally. The practice with the Judicial Appointments Advisory Board has meant that there is absolute constitutional discretion but there is also the concept of political discretion. As Mr. Herrick mentioned, this is the established convention, as it were. The established convention is that the Government always - or with only one exception - has appointed judges from the list of recommended candidates from the Judicial Appointments Advisory Board. That exception was Mr. Justice Frank Clarke, who became Chief Justice. Where it was not done, it had to be published in Iris Oifgiúil. He is the only exception I am aware of. There is a political convention as well as one relating to the overall constitutional point.

What is the discretion within that, given that this is already the case and the Government has never deviated from it? If the point is that the Government is retaining sufficient discretion, how is that moving at all? Does the witness accept that this has been the essential political convention for the complete period of the Judicial Appointments Advisory Board?