Michael McDowell (Independent) | Oireachtas source

Is the Minister saying that it would be mandatory for the commission to inform disappointed applicants of their status or is he saying that it would not be mandatory, but it would be good practice to do it? Surely in all fairness to a Supreme Court, High Court or Court of Appeal judge who has served the country for 15 years it should be clearly the case that they should know whether they were shortlisted. What other system would operate on that basis?

When I was Minister for Justice and Equality at least the people who were shortlisted for promotion in the Department knew who they were and the others who were not shortlisted were informed that they had not been. Some were gravely disappointed at various grades of appointment. In fairness to the applicants for a process where they are interviewed and, as this procedure will involve, where they submit their whole life to a minute examination to see are they good people to appoint to the court, surely they are entitled to know whether they are shortlisted. If the unsuccessful person is entitled to know that they have not been shortlisted, how can it be right that they should be informed but that the Cabinet should not be informed? How can that possibly make sense? It does not make sense.

To attempt to keep the Cabinet in a state of ignorance as to the process but to ask this House to assume that somehow under subsection (h) the commission may, or will, or must, depending on what the Minister's remarks were supposed to mean, inform unsuccessful applicants of what happened to their application seems to be utterly contradictory. In case the Minister thinks I am being wholly negative I am not. I am suggesting that in the context at the very least of sitting judges, this whole procedure should not apply at all. A judge of the High Court, the Court of Appeal or the Supreme Court, if a promotional opportunity comes up, is entitled under a protocol to inform the Secretary General to the Government of his or her willingness to be promoted and let the Government be informed of that fact. The Minister is trying to end that. I regret to say that is a deliberate subversion of the Constitution. It cannot be defended in either logic or law.

If the Minister told me that he intended to bring forward a Report Stage amendment to allow the identity of unsuccessful applicants be made known to the Cabinet, which would leave it in the position of asking the Attorney General about Ms Justice so-and-so and why should it not appoint her under its constitutional power, I would be happy, but the Minister is not going to do that. If he told me that the Attorney General could inform the Government where she or he thought it proper that three or four so-called better applications, in the view of the Attorney General, had been turned down by the commission in favour of the three that had come forward, I would be happy. If the Minister told me that this did not apply in particular to the sitting Judiciary, that they did not have to go through this process, that they were all considered potential appointees and that the Government was at large, as it is under the Constitution, to appoint any of them, then I would be happy, but none of those things has been offered to this House to excuse what I consider to be an inexcusable proposal to subvert the Cabinet's function in this matter, and I strongly oppose all of these measures.