Michael McDowell (Independent) | Oireachtas source

I want to put it on the record that the Minister has informed the House that he believes unsuccessful candidates will be notified of that fact. If that is the case, it will have to be made very clear on Report Stage. We cannot treat this as something that the Minister hopes for, but the commission can decide not to do. Is it the case that those who will be shortlisted will be notified of the fact of their having been shortlisted? The commission will not be making the final decision, as it will be a matter for the Government. If a particular judge is told that the commission accepted that he or she was one of the top three, but he or she is not appointed to the Supreme Court, he or she will have to draw the inference that this was a decision made by the Government. As we live in a small world, he or she will know who is on the shortlist. If we notify people that they were on the shortlist but did not make the grade at Government level, that will have certain implications as well. I want to put it on the record that if the Minister blithely says he imagines that best practice will involve telling unsuccessful candidates that they were not successful in being shortlisted, consideration must be given to whether those who were shortlisted should be told that they were shortlisted, only for the fine members of the Cabinet to decide to go somewhere else in the last analysis.I would like to know exactly what the legislation is supposed to be achieving in that context.

The Minister indicated that I am being unduly adversarial in my approach. Let me remind him of a few basic facts. The Bill makes detailed provision in respect of how votes should be carried out, who has the casting vote and who is always in the majority. It states that a lawyer, be he or she a judge or a practitioner, can never be the person with the casting vote on any issue. I did not imagine this, I did not put it into the legislation. This was put in by those who drafted it. I do not have to tell the Minister that, besides himself, one of the great proponents of the legislation, his Cabinet colleague, the Minister for Transport, Tourism and Sport, Deputy Ross, has repeatedly indicated that the purpose of what is proposed is to end cronyism in the appointment of judges. In stating this, the Minister for Transport, Tourism and Sport has implicated the Judiciary, as well as successive Governments, in acts of cronyism.

I am not bringing some new proposal before the House as to how judges should be appointed. As far as I know, it is not the case that the existing arrangements require casting votes on the part of the Chief Justice. I have never come across that. The Minister asked a question that I am certainly glad to answer. In my experience as Attorney General and as a member of the Judicial Appointments Advisory Board, JAAB, there were no votes, just discussions. There were sometimes disagreements but they were amicably resolved one way or the other. Nonetheless, there was never a situation of raising one's hand for one person rather than another because the system did not require it. JAAB indicated whether a person was wholly unsuitable or whether he or she could be recommended to Government. If there was a serious group of people, even a minority, which thought that Mr. Kevin Humphreys was suitable, and the other members indicated that there was something iffy about him, his name would still go forward unless there was somebody stating that he was wholly unsuitable. It was left to the Government to decide. The Attorney General would have been at both meetings and would have been in a position to steer the Government on the issue. There was nothing wrong with that. It did not pollute the JAAB process at any point that the Attorney General was in a position to state that there was strong opposition to a candidate from some quarters but that the Attorney General felt he or she was a good person or a bad person, as the case may have been.

I do not accept the proposition that I am being unduly adversarial. I would hope that the commission, like JAAB, would operate by consensus. If then good people are seeking appointment to the High Court, it is much easier for a consensus to emerge and to say that here are ten good people and that it is now for the Government to decide. It is bound to be the case that if we say that we cannot send forward more than three candidates, people will ask precisely why candidate A is better than candidate D and will state that they believe strongly in candidate D and that they do not believe candidate A is better. There is going to be much more personal assessment by the members of this commission of the people they are putting on vis-à-vis the people they are not putting on. The comparative merits of two people on a short list will be of great importance. That is inevitable. It is not an adversarial thing. The entire process will require that if those in the room agree on six people who have substantial support on the commission to be appointed to the Supreme Court, they will have to, by some process, knock out three and put the other three on the short list.

The Minister says that I am conjuring up a situation whereby the Attorney General is all on his or her own in opposition to somebody. I am not doing so. I am saying that it could well be the case that the Attorney General could be one of five or six people on the commission who had a strong objection to one person or a strong preference for another and who id not agree with what was done. Let us remember that the system the Minister is putting place gives a majority of this commission the right to decide on each person. It is not a proportional representation election. One can have three votes. It will be a matter of candidate A, candidate B and candidate C, and the majority of the commission being entitled to state that candidate D will not be on the list. That process is done by a vote in the event of a disagreement. If there is equality on any occasion, the lay chairperson is given a further vote. He or she is given one vote to bring it to equality and a further vote to bring it over the line.

I am not conjuring up an adversarial scenario. Having 15 members on the commission and giving them the function of winnowing out all the suitable and unsuitable people to the point at which only three names will go to the Cabinet, a situation is bound to arise from time to time whereby the Attorney General will be in a minority. That is bound to happen unless the commission operates on the basis of complete consensus in respect of everything, which is not what is envisaged. If there were to be complete consensus on everything, there would be no need for a lay majority, for a casting vote for the lay chairperson or for every committee and sub-committee of the commission to be chaired by a layperson. That would not be required if it was all to operate by some kind of cosy consensus. It is not designed to do that. That is its qualifying characteristic.

Government Amendment No. 69 states that it will be a criminal offence for a person to contravene section 27(1). If the amendment is accepted, it will be a criminal offence for the Attorney General to disclose confidential information. The definition of "confidential information" in section 27(2) refers to "information that is expressed by the Commission to be confidential". A majority of the commission will decide what is confidential and the Minister has admitted here that he certainly envisages that the identity of unsuccessful applicants will remain confidential, even to the commission and to the particular individuals involved if they are informed of their lack of success by a letter issued to them. There is a series of things here which I find strange. An unsuccessful applicant will get a letter and will be informed that he or she has been unsuccessful in being short-listed, but the Attorney General, on pain of committing a criminal offence, will not be able to tell the Cabinet that such a letter issued in respect of any individual. I cannot square that as a reasonable approach to all of this.

I am not seeking special privileged status for the Attorney General; I am just asking that his or her constitutional status be recognised and that it be stated in section 27 that nothing will inhibit him or her from giving a free and frank account to the Cabinet of the process of selection, including information on who was successful and who was not. That would not allow the Attorney General to subvert the process in its entirety, but it would allow him or her to do what he or she is charged with doing by virtue of his or her constitutional position, which is to give proper legal advice to the Government on the suitability of candidates.

I am glad the Minister indicated that it is still the case that the Attorney General must, under Cabinet procedure, be consulted. I had wondered whether that had disappeared.