Michael McDowell (Independent) | Oireachtas source

It will be a crime for the Attorney General to say that while a certain person has not been shortlisted three times, he is entirely suitable for the position and that the Attorney General just wanted the Cabinet to know this before, collectively, they made up their minds about any or all of the people on the shortlist. That, however, is what the Minister is asking us to do. He is asking the Government to play blind man's buff in the context of a commission which is not merely wholly independent of Government but is also composed, in the majority, of people who are not legal practitioners or legally qualified.

The Judicial Appointments Advisory Board, as it works at the moment, is ideal in one respect, namely, that the majority of its members are people who know how the legal system works and what makes for a good or a bad judge. Government can be aware of the shortcomings of the JAAB process by simply looking at the list of people who applied and who were not recommended. I find it alarming that, if a position on the Supreme Court comes up and three names are put on a list, the Government must be kept in the dark as to the identity of all the other people who applied for that position from the High Court, the Court of Appeal or the Supreme Court itself. How can that not be a gross invasion of the Government's function under the Constitution? How can it be that, if Ms Justice A or Mr. Justice B indicated a willingness to be promoted to the Supreme Court, it must be kept secret from the Government as a matter of criminal law? That is a shocking idea. I am amazed it has not occurred to the Department of Justice and Equality to understand how shocking the idea is for the Cabinet to be kept in the dark, on pain of somebody committing a criminal offence, about the willingness of somebody to serve in the Supreme Court who has not been recommended by the process.

The Minister has fairly and rightly conceded to me that the Bill cannot go the full hog and exclude the Government's capacity to make a non-recommended appointment, as it is provided for in the legislation. He is saying, however, that Government has the right to appoint somebody who is not recommended or shortlisted but that it is a criminal offence for anybody to tell the Government that a person was willing to serve and has not been selected. How crazy is that as a legal provision? It is very difficult to understand how anybody could seriously defend the proposition.

We have now heard it stated, for the first time and in the clearest possible terms, that secrecy has been imposed even on the Attorney General, who sits in Cabinet as the legal adviser to Government but, while not a member of Cabinet, is bound by Cabinet confidentiality. It is grotesque and a fundamental attack on our constitutional values for him or her to be committing a criminal offence if he or she says Ms Justice A was an applicant but had been overlooked. It is a fundamentally misconceived attempt to circumscribe the constitutional function of the Government.

The Bill claims to admit that the Government has the right to ignore the recommendations of the judicial appointments commission and to appoint somebody whom it wishes to appoint but, at the same time, it purports to say the Government must be kept ignorant of these facts. The Attorney General, sitting at Cabinet and under the rubric of confidentiality, cannot inform the Government of the people who were willing and who, in the Attorney General's opinion, were better candidates but were turned down, nor can he or she tell the Cabinet that four people had been turned down, any one of whom would have been better than the three who were shortlisted.Why must this be done? I will tell the House why. It must be done because of a misconceived desire to satisfy the desire of one member of this Government to reduce the Government's discretion in this matter to zero while paying lip service to the fact it has a totally different right to ignore the whole process completely, if it so wishes. That is why it is being done. It is being done to create the illusion that, in future, the Government will be effectively confined to the three-person shortlist and that it will be almost impossible for the Government to escape the three-person shortlist because it would be a criminal offence to tell it if there was somebody outside the three-person shortlist or a number of people whom it would prefer to nominate.

I find this remarkable. When it comes to the Supreme Court in particular, I find it shocking that this suggestion is made, and that it be a criminal offence for the Attorney General to tell the Government, "The following four judges have been excluded from the shortlist and are willing to serve, and on the advice of the Attorney General, they would be at least as suitable, if not more suitable, than the three people recommended." I cannot see any justification for such a provision. What is more, given the explanation that the Minister has candidly made of both the policy, which is to that effect, and the law, which he considers will be to that effect if this is legislated for, I believe it is plainly unconstitutional. While other people might have different views, I believe very definitely this is an unconstitutional provision. I believed, when I saw the Attorney General added, that it was possible the Government would hold out the possibility that the Attorney General, as a member of the commission, could advise the Government in confidence about what did or did not happen at the commission, and who was or was not successful, or whether he or she, having seen the last three on the shortlist, believed they were knocking out superior candidates almost as a matter of policy and making the shortlist correspond to ideas of their own, which might or might not be shared by the Government. I believed it was possible that the presence of the Attorney General might be the bridge whereby this patent unconstitutionality might be avoided. I am grateful to the Minister for admitting that, in his view of the Bill as he is presenting it to this House and as he expects it to be passed, not merely would the Attorney General be bound as a member of the commission in civil law not to disclose such matters to the Government but would commit a criminal offence if he or she did so. I think that is really wrong.

In this context, I draw to the attention of the House to another provision of this legislation which compounds the problems about which we are talking. I ask the House to consider section 62 of the Bill as passed by Dáil Éireann. Section 62 states:

(1) In this section-(a) "applicant" means an applicant under section 39 or a person who has expressed the interest referred to in section 44(1) and "application", in relation to the second-mentioned person, means the steps under section 44 to deal with that expression of interest...(2) An applicant shall not attempt, and shall not procure or counsel another to attempt, in either case whether directly or indirectly, to-(a) canvass, from any person involved in the process-----