Michael McDowell (Independent) | Oireachtas source

It was crazy. He was no longer a politician and no longer a danger to anybody politically. He was rejected, however. People who, in my judgment, were far less in a position to give a rounded opinion as members of the commission were selected instead. I do not wish to embarrass another person but it involved somebody who has become since a senior member of the Judiciary and who is a noted constitutional expert. That person too was rejected in favour of so-called human rights activists of whom nobody had ever heard before.That experience makes me wonder who wants to be appointed to these positions, and what would motivate them. The huge advantage of Senator Bacik's amendment is that it warns them not to come onto this commission, or waste time applying to the Public Appointments Service, PAS, thinking that they will be the ones who give us a liberal or conservative Supreme Court over the next five, ten or 15 years. That is not their function. It is not their function to make judgments on those things or to ask Michael McDowell, if he comes before them as an aspiring appointee to the commission, what his view is on this or that, how he would decide this or that case or, even generally speaking, where he would stand on socio-economic rights and whether he would be up for expanding them or not. That is not the function of this commission. The great advantage of Senator Bacik's amendment is that it makes it very clear that it is not a ginger group to shift Ireland this way or that way. It is not a body intended to shape Ireland through the opinions, ideologies and outlooks of the individual members of the judicial appointments commission. If this amendment is accepted, it will absolutely copperfasten it and make it crystal clear that if one puts one's name in to PAS, that will not be one's motive, one will not be allowed to achieve that and insofar as that is one's private, secret aim, one will be frustrated in any intended implementation of a private agenda.

The question Senator Ruane asked, that a person shall not be asked about certain subjects and, if asked, shall not answer, is hugely important when one looks at the subjects. If people are asked if they are practising Catholics, members of the masons or members of this, that or the other, or what their sexual orientation is, or how they view or do not view gay rights, and if this is the direct purpose of the interviews, that is a direct trespass on the Government's prerogative in these matters. It effectively creates a mini-Cabinet subcommittee to vet people by reference to their outlooks and ideologies, and that would be entirely wrong.

Even in America, where they have an appallingly politicised approach to supreme court and federal court appointments, in a manner which even the Minister for Transport, Tourism and Sport, Deputy Ross, would be a bit off-put by, one can never be asked at a meeting of the judicial committee of the US Senate about how one would decide particular cases or lines of cases. That is prohibited in America. It is hugely important to lay down here very clearly to any person who wants to be on the judicial appointments commission that he or she may not ask those questions, and anybody to whom those questions are addressed is not obliged at the very least to answer the question. It would be remarkable if it became known that the lay majority on judicial appointments advisory committee were generally disposed to people of a particular political or philosophical outlook, and that we were generally down on people of a different outlook. It would be deeply damaging to the whole process if people in those circumstances felt they were wasting their time putting forward their application to be considered on merit because the commission would ask questions which go to their religious opinions, philosophical beliefs or whatever.

Another point that this amendment would, if accepted, make very clear is that the interview process itself would not venture into that territory at all, and that candidates would know they were under no obligation at all to participate in discussions of this kind with the appointments commission, and that the members of the commission were not entitled to tempt them out onto that ledge of indicating their philosophical views. There is a narrow line of distinction in that a person's temperament is a perfectly reasonable thing to take into account in making appointments. If somebody going forward for appointment is a black-and-white person who does not listen to the other side, that can be found out in an interview process. Temperament is one thing and someone's reputation as regards his or her temperament can be hugely important. If this new commission asks for references, it should probably ask if the person is temperamentally suited to be a judge. There are many brilliant lawyers who are temperamentally unsuited to being a judge. They could be the best solicitors or barristers in their field. They could be top notch, yet they could be repugnant as judges because temperamentally they are not given to listening to both sides of an argument and have huge belief in their own judgment and pre-judgments of most issues. It seems that it would be utterly wrong if the appointments commission were to grill would-be appointees by setting them constitutional law exams, or by having interviews where it was elicited from them whether they were liberal or conservative, and whether it made up its mind based on propositions of that kind.

The last bit which is important is section 7(2)(c). It says to people who apply for judicial office not to start advertising themselves by reference to their religion, their political opinions or their philosophical beliefs, not to signal that if a liberal is wanted, they are the man or woman and not to say that their general attitude would be to support the State on immigration law matters or to say we have gone far too far in allowing asylum seekers and immigrants to use the court system. If somebody was in a position to say that and signal that to the commission or the Government, it would be reprehensible because he or she would be advertising himself or herself to the Government as saying, "I am your man and I will uphold what you want to do." A particularly conservative Minister for Justice and Equality, much more conservative than the Minister, Deputy Flanagan, or me, I might say-----