Michael McDowell (Independent) | Oireachtas source

Yes, but what policy are we talking about? If the chairman appears before a committee to discuss the general administration of the commission, how could he or she be involved in a debate on Government policy before the committee? How could that arise unless it was a resources issue and the Government was determined only to give the commission half of what the commission believes necessary to carry out its function? It is hard to see what, other than a resources issue, could possibly be relevant to the general administration of the commission. However, the section provides that, on resources issues, the commission cannot query the policy laid down by the Government. If the Minister sends the commission a letter stating that it is his or her policy that the commission's resources for the next three years will be X and no further resources will be provided, the commission chairman cannot talk about that before a committee of the Oireachtas because it is the Minister's stated policy. The chairman cannot query or question it or give any view as to whether it is justified or unjustified. This is remarkable stuff.

The whole mechanism for the adjudication by the High Court of whether the chairperson is obliged to answer a question, and the suspension of the questioning pending a determination by the High Court, is massively cumbersome. Curiously, it involves members of the Judiciary making decisions about what the chairperson of the commission should or should not say.

These points are largely procedural and are issues that deal with the unthought out nature of these provisions. Much more important is the fundamental question - and at this stage I must insist that the Minister gives a clear indication by way of an answer - of what is "confidential" in this process? The Bill is very unclear about this. Is the fact that a particular person has applied to be considered as a judge "confidential"?Is the person in question entitled to state in public that he or she has applied and been refused by the commission on so many occasions? Is the commission entitled to confirm or deny that? What is much more important, and I require the Minister to make this very clear, is if the Cabinet is being asked by this group to consider a shortlist of one, two or three people for any particular position, is the Cabinet entitled to know what other members of the Judiciary or other persons applied for the job? The Minister has conceded on a number of occasions in the debate that it is the Government's choice and responsibility and that no matter how one reads this legislation, one way or the other, backwards or forward, it will always be the case that the Government is free to make its own choice and not to be bound by the commission's recommendations. If that is to be given life, surely it is relevant that the Government should know that the following 20 people expressed an interest but the commission came up with recommendations for the following three people. For the Government to form any view as to whether the commission was doing a good or a bad job, or whether it was knocking people out, as it were, year in year out, who seemed to the Government to be people who were at least as good as some of the recommended people, if the Government is to be kept in the dark as to the identity of the people who applied for appointment, it is effectively being asked to accept or reject a recommendation not knowing whether it is a good or a bad one.

People may be critical of the Judicial Appointments Advisory Board but at least the members of the Cabinet are entitled to know who applied. They are entitled to ask the Minister for Justice and Equality who were the 20 people who applied for this job. He may be recommending Joe or Josephine Bloggs for appointment but the members of Cabinet may not have heard of that person and they can ask him the names of the other people who applied for the job. If we are talking about existing members of the Judiciary who are being rejected by the lay majority of this commission for further promotion - this is a particularly important point to which we will return at a later stage of the debate - surely we must be in a position whereby the Government should know that the commission is making that type of decision. That is why I find it worrying that we have never had a clear statement, and it is not clearly provided for in this legislation. Is the Government entitled to ask of the commission the names of all those who asked for the job, either eligible lawyers, eligible legal academics or existing members of the Judiciary? Before the Cabinet makes an appointment, can its members ask the Minister to tell them who was in the running and, before they accept his recommendation, can they ask for some inkling as to the identity of people whom the Minister has rejected year after year and about whose applications he has kept them in the dark? That issue lies at the heart of this commission. Is it to be kept secret from the Government that a person has applied to the commission and has not featured in the list of the three recommended?

We could well have a situation where five people applied for one particular judicial appointment. I cannot see any reason the Government, if it is being asked to exercise a constitutional discretion in a particular way by the commission saying these are three it recommends, should be kept in the dark as to the identity of the other two people. They may be members of the Judiciary whose candidacy, for one reason or another, a majority of this commission, which is organised to be lay people, has knocked on the head and who have been excluded by the commission from the shortlist for Government. Who will ever know about this? Members of the Judiciary who participate in the process will know about it but, if one takes the view that this is confidential information and should never be disclosed to anyone, they may not impart it to anyone. The same applies to the barrister and the solicitor appointee. If they say that this commission is crazy because it keeps ignoring Ms Justice so-and-so, who is accepted widely as one of the leading jurists in Ireland, and they do not know precisely why she is being rejected and three other people are being proposed for the job rather than her, and if that remains an absolute secret and it is in a black box that no one can penetrate and ask what is going on at that commission, who is being considered and who is not, then there is something fundamentally wrong and it is a huge mistake. When I was Minister with responsibility for justice, the Cabinet was perfectly entitled to ask of me the names and runners when I came to it with a recommendation, having spoken to the leaders of the coalition parties and the Attorney General beforehand.

There is another leg to this that I am deeply concerned about and that is that the Attorney General, who is the legal adviser to the Government, is sitting on this commission. He or she will know the names of the unsuccessful people. I want a clear answer now, before we enact this legislation, which is grossly inadequate, if the Attorney General is free to tell the Cabinet that the commission has rejected three Supreme Court judges who applied to be Chief Justice and has come up with two or three other people? Is the Attorney General free to tell his or her Cabinet colleagues that, yes or no? We cannot have any more evasion on this. I am not accusing the Minister of being deliberately evasive. We must have absolute clarity. Is the Attorney General free to tell the Cabinet all the names and runners arising from a shortlisting by the commission? The answer to that is either yes or no. If it is to be the case that the Attorney General is free to tell the Cabinet that he or she was a bit taken aback that the majority of lay people excluded the two sitting Supreme Court judges for recommendation to be Chief Justice or two Court of Appeal judges or High Court judges for recommendation to be President of the Court of Appeal or an ordinary member of the Court of Appeal, and if it is the case that the Attorney General cannot tell them that information under the terms of this legislation, it is rotten legislation. On the other hand, if he is free to do it, let us have that said here and now in this House that this is the view of the Government, and let us have an amendment to make it clear that the Cabinet is entitled to that kind of information.

If we look at the Constitution with respect to the ultimate choice as to who becomes a judge, even if it is from a shortlist of three recommended or if the Cabinet decides that it does not like the look of the shortlist at all and it wants to go outside that group, surely the very first question the Cabinet would ask the Attorney General is whether Ms Justice Bloggs was rejected for this position. Surely, the members of Cabinet are entitled to ask that question. If they all said she is the person they want to be on the Supreme Court because she is conservative, liberal, an eminent jurist or whatever particular criterion they want to apply to the appointment, are they entitled to know that she has been rejected on three or four occasions by this commission on an application? There is no evading that issue, and the language of this Bill is deliberately opaque on that central issue. It is changing an existing situation, which is that the Cabinet is entitled to that information, to a situation where one is not clear and one is not told, but there is provision whereby some of this information is confidential, and there is no sanction for a breach of the confidentiality, which is another matter completely.I am always wary of a rule of confidentiality that can be observed with malice by some and broken with impunity by others and there is no remedy one way or the other.

I know that "general administration of the commission" probably does not cover the policies the commission is applying to its decisions. On the face of it, it probably does not cover decisions made successively that a particular judge is not worthy of promotion for some reason held in the hearts or heads of the lay majority, but it is absolutely essential that there be transparency on the issue. The Bill seems to leave it uncertain because, on my reading of the legislation, I am at a loss to know whether the Cabinet can be given that information. Does the Minister intend that the Cabinet will have access to that information and that the Attorney General who is the legal adviser to the Government will be able to inform it of these matters? When I was appointed Minister for Justice and Equality, the Cabinet procedures were specifically altered to require me to consult the Attorney General before I brought any name to the Cabinet. That is included in the Cabinet handbook. It is not a secret. If the Attorney General is to be party to the entire selection procedure and unhappy with it in any case, will he or she entitled to tell the Cabinet that the shortlist is for the birds; that there are five far better people; that, as legal adviser to the Government under the Constitution, he or she should bring to its attention that they are not the best three people available for appointment, and that it should look elsewhere? Will that be permissible?

There is no getting around this issue by saying it may or may not be permissible because if the Minister and his Cabinet colleagues - the Minister for Transport, Tourism and Sport, Deputy Shane Ross, in particular - intend that the Attorney General should be prohibited, by the terms of this legislation, from imparting the information that others far more meritorious were overlooked in the process of informing members of the Government and if the Minister for Justice and Equality of the day who, under Cabinet procedures, proposes one individual from either the shortlist or the generality of eligible persons to be made a judge, he or she will be acting unlawfully. It is fundamentally wrong and an attack on the constitutional role of the Government. The Government, not the commission in its entirety or its carefully cosseted lay majority, is responsible to the people for whom it appoints. There must be, on the part of the Government, an entitlement to know who is interested in being a judge who the commission is sifting out of this arrangement and to come to a conclusion, if it is the Cabinet's collective decision, that the commission is consistently getting it wrong, that it is putting up people who do not merit appointment ahead of others whom the Government should know wish to be considered by it for such appointment. Until we sort out the issue, all of this business of providing that the chairperson can be brought before an Oireachtas committee to be asked about the general administration of the commission but shall not at any stage be allowed to deal with its transactional aspects in carrying out its functions is an irrelevance.

Will the Minister answer some of these questions? My view of the section and remaining sections is coloured significantly by whether the Cabinet will be entitled to be informed by the Attorney General about the unsuccessful people who were not favoured by the commission but who the Attorney General might feel are far more worthy of appointment than some of the three appointees recommended by the commission where it is expressly provided that the majority be of lay people and where the Attorney General is effectively in a minority as law officer of the State because it is provided for in the statute that the majority be of people who are not lawyers.