Michael McDowell (Independent) | Oireachtas source

The amendment moved in Dáil Éireann for the inclusion of the Attorney General on this commission was a wise one. I am interested to hear that the ICCL does not approve of the idea, but there are many reasons why it should be done. Bearing in mind the constitutional function of the Government, which is preserved by this Bill in one way or another - its prerogative to appoint people who are eligible and to advise the President accordingly - it seems that it would be strange indeed if the Government had no insight into what the commission was doing. It is an aspect of the Bill I cannot quite follow in its current form. If the commission was consistently turning down a person the Attorney General thought was worthy of consideration, it would be a good idea if the Government knew about that rather than be simply left to wonder if that person ever applied or what happened to him or her.

The Minister will have to consider what the Government is entitled to know about the deliberations of the commission between now and Report Stage. Various people in this House have stood up and, with a flourish, stated that this is going to be transparent. We will come to the question of confidentiality at a later stage of the debate, but I take it that it is not intended that we should read on the front of The Irish Timesor elsewhere that three named people were proposed and were ranked in a particular order. I assume it is not intended that this judicial appointments commission will operate in that way. What I have outlined would lead to controversy, disappointment, disillusionment, political argumentation and dissatisfaction with the ultimate choices made by the Government. There has never been clarity in this legislation as to whether we are to know whether what the commission reports is to be made public in any circumstance, and we have tabled amendments to clarify that issue. It would be nothing short of disastrous if the three names recommended by the commission were made public, including the order in which they were recommended, and it was found that the Government had chosen the third named candidate instead of the first and second choice candidates. What is the point of providing a shortlist of three names in those circumstances? Essentially, the commission would be informing the Government that it may defy its opinion providing that the Government publicly acknowledges that it has inverted the order. If that is what is being contemplated, it is wholly unacceptable.

On my reading of it, the Bill is not clear on this matter. Some speakers have indicated that they want a crystal-clear and transparent process. It is never going to be either. If it were, the outcome for disappointed candidates would be pretty awful. Top-quality people will never apply for a job where there is the possibility that they will read about their rejection in the newspapers. We must be clear in our own minds about this. If one of the consequences of this new system was to be that a person might read on the front page of a newspaper that he or she had been rejected by the Government or that he or she was number three on the list after two others and if a debate about the various merits of candidates is conducted in the newspapers in general, that would be extremely damaging to the entire process and subvert public confidence in it. In that context, the presence of the Attorney General is of some significance, because he or she would be able to tell the Government what is going on with the commission, what kind of people it is going for and who is not being recommended for appointment. When the Government comes to use its own residual prerogative to nominate people for judicial appointment and to advise the President to nominate somebody, it should know whether that person did or did not apply and was or was not successful in an application to the judicial appointments commission.

The only dependable way that I can see for the Government to become aware of the list of candidates is to have a confidential and secret line of communication between it and the commission in the person of the Attorney General. Having been the Attorney General on the JAAB, it is not the case that he or she would say to the Chief Justice and various other members of that board that Mr. Joe Bloggs is going to be appointed and that there is no need to nominate anyone else. Nothing like that ever happened. I say this in case people think that the presence of the Attorney General is something that would somehow bring the debate to a halt. That simply did not happen. Perhaps I am biased, having held the office of Attorney General. However, the Attorney General in Ireland, unlike in the United Kingdom, sits at Cabinet. When Cabinet comes to make the decision, the Attorney General and the Minister for Justice and Equality are the two people who, as outlined in the Cabinet handbook, must be involved in the process before a person is suggested to the Government as being suitable for recommendation to the President for appointment to the Judiciary.When I was Attorney General, my understanding was that the Minister for Justice customarily made the proposal but he or she was obliged to consult the Attorney General of the day, the Taoiseach, and, by custom in a coalition, the leader of the other coalition party before bringing such a resolution before the Cabinet.

The Attorney General is also a constitutional officer and an ex-officio member of the Council of State. It is a job with responsibilities, and one that carries with it a residual role to advise the President on matters where the Council of State has a function, though it does not have a function in the appointment of judges by the President. When the Dáil, in the messy process that gave us this section in its present arithmetically challenged form, decided to reinstate the Attorney General on the commission, it made a wise and proper decision and I cannot support any amendment that has the effect of reversing that decision and excluding the Attorney General.