Dr. Tom Hickey:

I speak along with Dr. Kenny and Dr. Cahillane. What the Deputy said is interesting. Head 44, relating to the discretion that the Government of the day will have, is at the heart of this legislative reform. Dr. Cahillane made this point at the outset. The commission recommends five names and Government then has discretion - one might say absolute discretion. We do not want the committee to have the impression - it is interesting that Deputy Creed may have this impression - that we favour an absolutely technocratic model. We do not. Dr. O'Brien, another academic, certainly does not favour an absolutely rigidly technocratic model and neither do we.

This is the critical point. Along with some other members of this committee, Deputy Creed is not a lawyer and he may sometimes feel he can get bamboozled and so on. This is really simple. Under the old system, the JAAB recommended seven names and Government had absolute discretion. Under the new system, the Judicial Appointments Commission recommends five names and the Government has absolute discretion. I am confident my colleagues will agree with me when I say that the Constitution requires political discretion, Government discretion. Even as a matter of public policy, for reasons relating to what Dr. O'Brien said, political discretion is valuable.

As Deputy Creed stated, this approach has served us reasonably well over the years. Patronage or even the perception of patronage is important. What also matters is merit over time. Ultimately, we are saying that instead of recommending five names, three should be recommended. In addition, we are saying that the names should be ranked 3, 2, 1 or if necessary 5, 4, 3, 2, 1. We are also saying, I think this is the key point, that the Government of the day should have unrestrained discretion to appoint anyone from among the top three names. We feel there are good public policy reasons for that, never mind the Constitution.

The Judiciary should reflect whoever is in government for 25 of the next 40 years. If there is an absolutely rigidly technocratic model in place for the next 25 or 30 years, it will not reflect that. We are saying that it should be three names, with absolute discretion. If the Government wants to choose a person who is not on the list, which may happen, that is fine but it should make a statement in Iris Oifigiúilto that effect. We appreciate that this is a practical constraint; it is not a legal or constitutional constraint. We acknowledge that it is a political constraint but there are good reasons for having that constraint. We believe there ought to be absolute discretion with respect to the best three candidates.

Obviously, I heartily agree with what Dr. Cahillane and others have said about having an interview process. As outlined in my first statement, I acknowledge Senator McDowell's concerns about that. Of course, this needs to be thought through. We need to remember that head 44 is the key provision. It would be an insignificant shift if we end up with the Government choosing from five as opposed to choosing from the seven. If that is what we get, it will represent a failure.