Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

A number of references were made to amendment No. 87, which is not part of this grouping, but some of the references may be relevant depending on how that amendment fares. I had my mind made up about amendment No. 87 and I will not be supporting it. It is not consistent with the philosophy underlining the Bill. I find it difficult to understand the logic behind it. I am speaking to the amendment because it is relevant, in particular, to the first amendment in this grouping, amendment No. 75, and obviously the meaning of that will change depending on what section, or version of it, it is referencing.

The debate has been very much about open and transparent appointments and so on. Much of the discussion has been about a lay majority, having a wide experience of backgrounds and a mixture of legal, lay people and expert lay people. In that context, I find it difficult to understand why that process would not be followed when it comes to the superior court appointments. If we are going to the trouble establishing a commission of this nature, I do not understand, given the limited number of appointments that the members of it will have to make, why we cannot consider that they would be trusted with those appointments. It is right and proper that the appointments would be made by the commission much the same as any other appointments. I will be opposing that amendment. I will support the first amendment on the basis of that because it is referencing it, but I would hope that the section will remain the same.

Amendment No. 97 deletes an amendment which relates to written reasons. That is another amendment I will oppose. I do not believe that the requirement to give a written reason is in any way unconstitutional, legally unsound or in any way interferes with the independence of the Judiciary. As long as the names recommended by the commission are not released, it does not interfere with the ultimate jurisdiction and the constitutional right of Government to select the candidate it wishes. I made the argument on Committee Stage that one would hope the Government would depart only rarely from the names recommended to it. The provision is there to provide that if a Government was to routinely depart from the commission's recommendation, it would explain it. Otherwise, it would undermine the body and the approach being taken. The philosophy here is that there is a constitutional restriction so we set up this body, which will come up with recommendations and, consequently, the Government will feel obliged to follow it because this process exists and it would be reluctant to depart from it. If there are not written reasons, there is less of an incentive to do that.

I would add that this is the process in England and Wales, for example, where the relevant judicial appointments commission selects candidates and submits their names to the relevant authority which in that case would be the Lord Chancellor, the Lord Chief Justice or the senior president of tribunals and so on. Invariably that figure, albeit within a different constitutional framework, accepts the recommendation and can only reject it on the basis that the person recommended is not suitable and reasons are provided in writing. I believe it would be a mistake to remove that requirement. I do not believe it causes any difficulty or that it would be beyond the capacity of Government, particularly with the proviso that the names would not necessarily be published but that the rationale would be provided in Iris Oifigiúil.

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