Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I do not expect that there will be such correspondence. I cannot comment on the situation under previous Administrations. I want to acknowledge what the Senator has said about the Bill's confidentiality requirements. He has queried whether those requirements imply that the Attorney General cannot disclose to the Cabinet the names of people who have not been recommended by the commission. He has referred tonight and previously to circumstances in which the Cabinet is minded not to appoint a recommended person and the Attorney General is asked about another applicant. In that context, the Senator has referred to the Judicial Appointments Advisory Board provisions, which allow all the names to be brought to the attention of the Minister. He has asked whether it will be permissible for the Attorney General, as the legal adviser to the Government, to advise the Government against the commission's recommendations in circumstances in which other people would be better suited to the position. Of course there are difficulties here because the fundamental requirement of confidentiality, as envisaged under sections 27 and 28, is important. That requirement is clearly set out in section 28, which makes it clear that a member of the commission, "except for the purposes of this Act" shall not "in relation to persons applying for [...] judicial office" disclose inter aliathe "proceedings of the Commission". That is not dissimilar to the situation we have at present, whereby the proceedings of the Judicial Appointments Advisory Board are not disclosed or discussed at any level, for important reasons.

I consider it important for the Attorney General to be a member of the commission. I acknowledge that Senator McDowell has said he believes the Attorney General's membership of the commission is important. We are in agreement on that. In fact, the House is in agreement on that because it has considered amendments in that regard.

Having acknowledged the Attorney General's membership of the commission, I believe it follows that the Attorney General as a member of the commission should be bound by the same statutory obligations as other members of the commission. I am not sure the Attorney General should be treated differently from other members of the commission. The Attorney General of the day brings specific credentials, expertise and experience with him or her. I do not think it would be fair to introduce a hierarchy of membership, whereby some members of the commission have greater powers or certain exemptions that are not enjoyed by others. I think it is fair and reasonable for the Attorney General, as a member of the commission, to be bound by the same obligations of a statutory nature that are made clear in the Bill. The Bill is clear on the precise information that is to be brought to the attention of the Government. This does not include the provision of the names of people who may not be recommended, who have not been recommended, or who might be out there and may be appropriate and suitable but, in the circumstances, are not in the equation.

It is clear that the decision-making process is in accordance with the procedure laid down in the Bill. Of course there are policy issues here. The existence of the commission is such to facilitate the appointment of the best applicants. In these circumstances, three names will be recommended. If we were to give the Attorney General special status or exemptions under the law, the effect of that would be to facilitate second-guessing on the part of the Attorney General, who would then be in a position to undermine the entire process. I do not believe it is the role of the Attorney General and the commission to second-guess a decision that has been made by the commission following due consideration. It seems clear to me, having regard to the status of the Attorney General - I acknowledge the role played by Senator McDowell as Attorney General over a decade ago - that the Attorney General will be in a position to discuss the recommended names with his or her Cabinet colleagues when these matters are being considered by the Cabinet. Of course this will be subject to the accepted confidentiality norms or requirements that apply to the Government. I want to make it clear that as I see it, the position of the Attorney General, like other members of the commission, is such that he or she will be statutorily bound by the terms of the Bill. The role of the Attorney General as a member of the commission will also apply, or will also have effect, when the Government is considering the names that have been recommended.

I listened to what Senator McDowell had to say at length the last time we discussed this matter. Following that debate, I took the opportunity to seek further advice on it. It is clear from that advice that the Attorney General would not be at liberty to say that a candidate who was not the subject matter of a recommendation and whose name did not appear was, in effect, more suitable then any of the three people who were recommended. If that is the point that Senator McDowell is making, I differ from him on it on the basis of the Attorney General's membership of the commission. I see this commission as being similar to other committees on which the Attorney General may be requested to sit, or other situations in which he or she may be requested to get involved. When the Attorney General signs up to a report, it would be unlikely - in fact, it would be unacceptable - for him or her to say something completely different at a Cabinet meeting, or to do the opposite in practice.

Senator McDowell adverted to what he described as a rather invidious situation in which I might seek the advice of the Attorney General and put him or her in something of an invidious position.I do not see it that way. I see the Attorney General needing to be objective about the role and function of that office under the Bill. I do not see that as having any implications, adverse or otherwise, for the exercise of the function of the Government under the Constitution advising the President on the appointments because at Cabinet, the Attorney General will still have the advisory role under the Constitution. I do not see the type of inconsistency about which Senator McDowell speaks. Under the Constitution, the Government can decide whether or not to go with the recommendation of the commission. If it chooses not to go with a recommendation, it is simply rejecting a commission decision but it is rejecting a decision to which the Attorney General was a party. I cannot envisage a situation where we depart from what is the policy issue on the matter of the recommendation of the three names because facilitating something different in effect undermines the policy platform of the Bill. I welcome the fact that the Attorney General will be a member of the commission. I acknowledge the constitutional role of the Attorney General in the Government and, of course, the consequent or overarching power and authority of the Government to reject in their entirety the three recommended names that might come forward. I do not believe it is desirable to have a hierarchy of membership that would allow the Attorney General to have a completely different and enhanced role over and above other members of the commission. That is the essence of Senator McDowell's argument.