Michael McDowell (Independent) | Oireachtas source

This is a central provision of the legislation. If I am right, and if the Minister's concession is taken at face value, and I take it at face value that this is his interpretation of the legislation, we are now faced with a situation where it is unlawful for somebody who wants to be appointed to inform the Government of that fact with a view to securing appointment, it is unlawful for the Attorney General to tell the Government that that person has not been short-listed and it is criminal for the Attorney General or for anybody else to tell that to the chairman of the Bar Council, or whoever is on this commission. It is criminal to tell the Government, "I am unhappy with this shortlist. There were far better people. I am really unhappy. I am bound not merely by a duty of confidence but bound by the criminal law itself not to reveal that to any member of Government." We have an horrific situation on hand if that is to be the law. It can be explained only by a desire to make this judicial appointments commission a subcommittee of the Government when making these appointments, so that their word goes, nobody can really circumvent it and it is wholly impossible to do it.

I then ask the following question. The Minister is aware that it is provided in this legislation that nothing in the Act prevents the Government from making an appointment entirely separately. How does that happen in the future? How can it happen if the person who wants the appointment cannot canvass for it and the people who are aware of the disappointed candidate's identity cannot say that? How can the members of the Government, sitting over in Government Buildings, one day say, "Whatever happened to Mr. Justice Bloggs or Ms Justice Bloggs?" They are then left in the dark because the Attorney General cannot even tell them because somebody will arrest him if he does so and charge him in the District Court. He cannot even tell them that the person was an unsuccessful applicant, and Mr. or Ms Justice Bloggs cannot even lift a phone and tell anybody they have not been short-listed, if they know it, which is a second question. Third, nobody on the commission, not even the Chief Justice, the President of the High Court or any other judge can inform the Government, "By the way, we had a really good raft of four judges, all of whom were overlooked by the commission in arriving at its shortlist." Then, the Minister says there is, notwithstanding this legislation, a constitutional right to make an appointment wholly outside the scheme of this Act on foot of the constitutional right of the Government to do so. It is reduced to meaninglessness if this culture of silence is imposed on the whole process and if nobody can intimate that problem exists.

The Minister referred to the provision in the Act, if I can find it-----