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

The Minister is not a commentator on whether individuals are appointed to judicial office. The Minister decides to nominate people and the President appoints them. It is inexplicable, and no explanation has been provided, as to why judges have not been appointed of the Court of Appeal. I have a strong suspicion as to why it has not happened. It is a political reason to appease one Member of the Government. That is not satisfactory from the public interest perspective.

The Minister also said that it is very important for the Government to preserve its constitutional freedom to appoint whoever it wishes. I agree that the Government has that constitutional freedom, but one does not need to identify a constitutional freedom by putting it into a statute. Either the Government has that constitutional freedom or it does not. I believe it does, but mentioning it in legislation is of no benefit in determining whether the freedom exists.

Section 45 reads:

In the event that a person appointed to judicial office has not been recommended by the Commission under this Act, the notice of that appointment published in Iris Oifigiúil shall include a reasoned written explanation of the decision of the Government not to nominate a candidate recommended by the Commission.

Let us say that the Government has a list of three people and the Minister, Deputy Flanagan, becomes aware that one of the best lawyers in the State is available. The Minister considers this to be a fantastic opportunity. As the Minister for Justice and Equality I would grab that person if he or she were available for appointment and had not gone through the process. Then the Minister could put in the Iris Oifigiúilthe reason individuals who were recommended were not appointed. They do not have to be identified. The Minister could say that it was decided to appoint a particular person because of his or her outstanding legal ability and because of other characteristics.

See this speech in context