Michael McDowell (Independent) | Oireachtas source

This group of amendments is of central importance to this legislation. Unless it is resolved in a manner which I consider to be satisfactory and constitutional, I will have the gravest of problems with the Bill.

In general principle, there will have to be some degree of confidentiality attaching to any process, be it the current Judicial Appointments Advisory Board process or a judicial appointments commission process. I am not blind to that requirement of commonsense. I am concerned, however, about a matter which I raised with the Minister previously. Is it his understanding of the legislation, in its current form and as proposed to be amended by him, that the Cabinet, when considering a list of persons recommended by the judicial appointments advisory commission, will not be informed as to who were the also-rans in the process? That is of great significance here.

While we have not yet come to this point in our consideration of this legislation, if we are to have a situation in which a list of three names comes before the Cabinet and the Cabinet, having considered, say, three appointments to the Court of Appeal, remains wholly in the dark that a very senior judge has applied on three occasions and the commission has not chosen to put that person's name on the list, it seems that would absolutely subvert the role of Government in making a choice. What worries me most about the whole idea of this legislation and the claims that have been made for it by the Minister for Transport, Tourism and Sport, Deputy Ross, is that somehow the Cabinet will be not merely required, as this legislation puts it, to "first consider" the names on a recommended list, but it will be kept in the dark as to who else was not merely eligible but seeking the job. More important than that, a Government might, after making a series of judicial appointments, be entirely ignorant of the fact that there was another person who was applying to be, say, a judge of the Court of Appeal, and has been consistently, for some reason, left off the list by this independent commission. That seems utterly wrong in principle and in commonsense. Supposing the President of the Court of Appeal was not shortlisted for appointment to the Supreme Court three times, could it possibly be right that the Government would be kept in the dark about that matter?

Since it is the case, as the Minister has consistently agreed, that the Government is free in the final analysis to ignore completely such a shortlist and to choose somebody else if it so desires, surely the Government of the day is entitled to have some idea as to the quality of the work that the commission is doing. For instance, if the commission, in interpreting its mandate under this legislation in respect of diversity and all the rest of it, is nominating persons for a shortlist who, if the Government knew the full facts, are inferior appointees in the Government's view to others who might or might not be seeking that appointment but whose identity or interest in the position cannot be disclosed to the Government under this legislation, this is a very serious interference with the Government's constitutional function and entitlement to make an informed choice about the decision.It seems that this is the real question. I have no problem with shortlists of recommended persons coming to the Government. That is in the Judicial Appointments Advisory Board legislation, with the exception of existing judges, to whom I will return. However, I have a major problem with the Government, for the first time, being kept in the dark about eligible persons who have not been recommended. I am talking about circumstances in which persons whom the Government might consider to be more suitable are not included in the shortlist, even though they might have indicated an interest in the appointment in question. If we accept that the Government or the Executive of the day has the constitutional function, right, entitlement and discretion to decide between two eligible persons for appointment - I believe this to be the constitutional position - but contrive a statutory situation that will result in the Government being blindsided in how the shortlist that will appear before it was composed, particularly in terms of who will not be on it, we have an unconstitutional invasion of the Government's function.

Senators might be interested to know that under the current Judicial Appointments Advisory Board system, the Government is entitled to know who all of the applicants were when considering the board's recommendations. According to my reading of the legislation, the purpose of this Bill which has been carefully disguised in statutory provisions about confidentiality and non-disclosure is to keep the Government in the dark on the identities of all suitable applicants. Why should a Government be kept in the dark on who is applying for judicial appointment? What possible rule, or common-sense objective, can be served by a statutory mechanism that makes it impossible for the Government to know what is really going on, who is really seeking judicial appointment and who is consistently being non-shortlisted for appointment by it? The effect of the provision, coupled with the provisions which prohibit canvassing, is that it might be entirely improper for a senior judge of the Court of Appeal to contrive to tell the Taoiseach of the day that he or she has been non-shortlisted on five occasions. Is a person in such circumstances entitled to know whether there is something wrong with him or her? I do not know what the process is.

All of this raises the serious question of whether a judge would know that he or she had been non-shortlisted. Is a senior judge of the Court of Appeal who sees others being put before the Cabinet time after time for appointment to a position in which he or she is interested entitled to know under this legislation that he or she has been unsuccessful? Is that a secret? Will it be an offence to disclose to a would-be appointee that he or she has been unsuccessful? The answer to that question must be "Yes" or "No". Will the commission be entitled to write to a particular person to inform him or her that, regretfully, he or she has not made the shortlist to be sent to the Cabinet? If it is the case that it will not be possible to reveal this information to a disappointed applicant, will the members of the Government be kept in ignorance of that fact also? In other words, will it be open to the commission to tell a judge of the Court of Appeal that he or she has been unsuccessful in the sense that he or she has not been shortlisted for consideration by the Government? Will it be possible for the Government, when it comes to make the appointment, to know that someone was an applicant in the first place? I have always had the greatest of respect for the Office of the Parliamentary Counsel here and probably have even more respect for it now because it seems that this is not simply a lacuna in the legislation. I suggest it is deliberately being fudged. I am reasonably versed in legislation, but is not clear to me what the answers to my questions are. If it is not clear to me now, as I am being asked to approve or disapprove of it as a Member of the Oireachtas, why is that so? I suggest it is because the question of what the Government of the day is entitled to know has deliberately been left obscure.

I have a second question which I mentioned briefly. If every judge of the superior courts will have to submit an application de novoto the judicial appointments commission for consideration for every promotional appointment - for example, to the presidency of his or her court; the Court of Appeal or its presidency, or both; to the Supreme Court or the position of Chief Justice, or both - I ask everybody here to consider what the implications of the new requirement will be. No judge is required to do so under the existing Judicial Appointments Advisory Board regime, which is entirely commonsensical. By practice, any judge who is interested is entitled to inform the secretary to the Government of such an interest. That is considered kosher. I would like to look at the implications of asking every superior court judge who wants to be considered for a judicial promotion to apply to this supposedly independent commission, with its so-called lay majority. In my judgment, it is entirely misconceived and wrongheaded as a proposition. Why should two thirds of the Judiciary, if they are interested in promotion, routinely have to submit to procedures involving an evaluation of the diversity implications and all of the other so-called criteria which are set out in this statute every time there is a promotional opportunity? If one is in the superior courts, how does it possibly matter what one's social origins are or whatever else? If one is suitable to be a High Court judge, could it ever possibly be the case that one is less suitable to be made a judge of the Court of Appeal by reference to some concept of diversity? If we are going to-----