Michael McDowell (Independent) | Oireachtas source

How could an expert person start short-listing people for consideration by the commission? Where does that come from? Why should we permit it? If we go to all the bother of trying to ensure there is diversity on the judicial appointments commission, having appointed people who are supposed to take diversity into account, how can we allow them to appoint consultants who are free to evaluate people on a preliminary basis?

In my view, section 11(8)(b) is extremely problematical and wrong. It provides that any person, consultant or adviser to whose appointment the Minister has agreed and who cannot function unless the Minister agrees to his or her appointment can then "provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures". If it were to be an international recruitment agency, a large firm of solicitors, a large firm of accountants or a large management consultancy firm, where is the justice in allowing such a body first to be appointed only with the Minister's consent and second to state it is somehow competent to provide an evaluation or an assessment of an applicant's suitability for appointment, which would assist the commission in making any decision in the course of carrying out those procedures? It is a deeply reprehensible proposal.

The Minister said he was confident he was going to reduce the cost of this commission from €1 million to €500,000. I believe it is intended to farm out the groundwork in respect of the commission's activities to consultants, as long as the Minister approves of those consultants. The terms for their appointment and their remuneration are to be determined by the Minister for Public Expenditure and Reform and the Minister for Justice and Equality together. This is surely something in respect of which the Judiciary have good cause for complaint. The Minister states he is setting up something independent and entirely free from political control but then he states it will be possible, with ministerial consent and on terms agreed by two Ministers, to bring in people to carry out vetting and suitability advisory work. That is entirely wrong and reprehensible, adds nothing to the independence of this commission and is deeply offensive to me.

One of the problems in respect of the existing advisory board - I have confessed this - is that it gets 120 applications from would-be District Court judges from all over the country and I remember this happening. Most of them are complete strangers and the members of the Judicial Appointments Advisory Board, JAAB, are left staring at a form in front of them. They really have no idea whether the application in front of them is from the best person in the world or the greatest idiot, whether the person is applying solely to escape the collapse of his or her practice or is somebody on the exact opposite end of the spectrum, who has done well and has decided he or she would like to perform public service as a judge in their 50s and 60s or whatever. How is that to be determined on a preliminary basis? Is one to look at the paperwork and state the person who comes up with the plausible application form is to be recommended to go to a second round by somebody who is not even a member of the commission and that somebody whose application form looks a bit ropy does not go any further? It is a significant problem because it is a deep politicisation, an abdication and a wrong delegation of the discretion which is being given to this commission to make recommendations.

If one is talking about diversity and one-man band solicitors or junior counsel with a relatively small practice in one of the provinces far flung from Dublin but if one provides that some group can take a look at the candidate on paper and put the person on the inside or the outside track, that is entirely wrong. I do not see what the justification for it is.