Michael McDowell (Independent) | Oireachtas source

I would just like to make a few points. In the intervening period I have considered what the Minister frankly admitted to be his understanding of the proposed impact of the legislation, including his amendments to sections 27 and 28, and the inclusion of the Attorney General as a member of the commission. I have spoken to persons high and low about the suggestion that it should be a criminal offence for the Attorney General to disclose to the Cabinet the names of judges who applied for promotion and who have been unsuccessful.There was a sense of general astonishment that the Minister could be contemplating a provision that would put the Attorney General in such an invidious position. Like the Minister, I strongly support the inclusion of the Attorney General on the commission, if there must be a commission at all. The Attorney General should be there with absolute regard to his or her function as the legal adviser to the Government.

I do not want to repeat a point I made at great length on the previous occasion, but this legislation purports to acknowledge that it is the right of the Government to promote any eligible judge to the Court of Appeal or the Supreme Court, regardless of whether he or she is recommended. The escape hatch from complete unconstitutionality is that the legislation expressly recognises that the Government can decide not to have any regard to the views of the commission and can make its own decisions in the context of promoting eligible judges to the Court of Appeal or the Supreme Court, or to the presidency of either. It is a really extraordinary proposal to state to the Attorney General, who is supposed to advise the Cabinet on the options open to it, in statute that he or she would commit a criminal offence if he or she told it that a certain judge had expressed an interest in a particular appointment and had not been short-listed but was available. It is extraordinary to inform the Attorney General that he or she cannot tell the Cabinet that Ms Justice Bloggs wants a position, would be a good appointee and has applied three for promotion to the Supreme Court on three occasions but has been denied inclusion on the list. The proposition that a criminal offence would be committed in those circumstances is staggering. The Attorney General should not be so circumscribed in what he or she can tell the Cabinet.

This matter should be reconsidered at a fundamental level. The current Attorney General would probably be in a slightly invidious position in advising as to his function in respect of this issue. It is improbable that the Attorney General should consider it correct that he would commit a criminal offence if he imparted this information to his Cabinet colleagues. It calls into question his membership of the commission if he is to be circumscribed in this way. In order that there is no misunderstanding, I must point out that it has been the practice in this country since time immemorial that successive Attorneys General considered themselves not merely free, but duty-bound - particularly when asked by the Government, the head of Government or the Minister for Justice and Equality - to approach individual members of the Bench and ask them if they would consider promotion, and also to approach senior solicitors and barristers and ask them the same question. What I really fear about this provision, taken in conjunction with the presence of the Attorney General as a member of the commission, is that we will have the worst of all worlds. The Attorney General will effectively be silenced or sidetracked by a provision which imposes a criminal liability on him or her should he or she inform the Cabinet of the true position regarding what is happening at the commission.

Why should the Government not know what is happening at the commission? The Government is bound by Cabinet confidentiality, so why should it not know that eight senior judges are constantly being turned down by the judicial appointments commission in favour of other nominees? What common-sense or practical purpose is served by putting the Government in the position of having to play blind man's buff regarding who is available for judicial appointment and who is anxious to be appointed? The Government will be put in the position of not being able to be informed of the true situation, on pain of the imposition of the true situation. As stated previously, the effect of the ban on canvassing, the presence of the Attorney General on the commission and the prohibition on him or her - under pain of criminal sanction - not to disclose the identities of unsuccessful candidates to the Government, would be to drag the Bill across the line into the realm of unconstitutionality. I repeat those points and re-emphasise my view that this is a remarkable new excursion in Irish constitutional politics, a remarkable inhibition on the role of the Attorney General and, above all, a remarkable circumscription of the real function of Government - which cannot be taken away from it - to make appointments in the full knowledge of who is available for judicial appointment and who is not and who wants to be appointed and who does not.

As I understand it, in order to prevent unseemly correspondence between judges and Ministers for Justice and Equality, a convention was recently entered into whereby members of the Bench who wished to be appointed to more senior positions under the current system were invited to notify the secretary to the Government of their desire in this regard. I see no reason that should not be preserved. If possible, I would like the Minister to outline his understanding of the ban on canvassing and certain other statutory provisions this Bill would enact and whether members of the Judiciary will be in a position to inform the secretary to the Government that they wish to be appointed. By way of a footnote, one of the most extraordinary features of what is proposed is that we do not yet have clarity as to whether a judge or a candidate who is not successful in being short-listed in his or her application will be informed of that fact.It must be a very strange provision indeed in statute law that a judge who applied on numerous occasions to be shortlisted would not be informed that his or her application to be shortlisted was turned down on every single occasion by the commission, a majority of the members of which are lay people.