Michael McDowell (Independent) | Oireachtas source

This is the last section in Part 4. Curiously, it looks like an insignificant section but it has interesting aspects. One relates to the purpose of the section, which is to oblige the commission to keep a record of all applications made to it under section 39 and its deliberations and recommendations regarding appointments to judicial office.

Several issues arise in this regard. Obviously, there is nothing wrong with the commission keeping a record of all applications made to it under section 39. We will be coming to section 39 when we get to the later parts of the Bill - there are five parts to come. One unusual feature of this statutory duty imposed on the commission is that in addition to its deliberation and decision, which would take the form of a recommendation, it has to record its deliberations as well. That is an interesting point. What are its deliberations? In that context, what amounts to a proper record of deliberations?

Let us suppose there is a discussion about the suitability of a particular candidate and whether he or she should or should not be recommended. Is what each person said in that discussion to be regarded as part of the commission's deliberations? Are we imposing on the commission a strong duty not merely to say who it recommends and to keep a record of this, but to go the whole way and record its deliberations? The term "deliberations" needs to be considered.

Let us suppose I was an applicant for a judicial position and my application was discussed and I was found suitable or unsuitable. The process whereby I was determined to be suitable or unsuitable would have to be minuted. This would include the conversations and a record of the persons voting this way and that way for my inclusion on the shortlist in the case of a vote or a lack of consensus. From one view, the deliberations of the commission go further and require that the position taken by each person for or against any particular candidate and the basis of that judgment formed by each person, if it is articulated, should be recorded as well. I find the idea that the commission should keep a record of its deliberations a particularly onerous obligation to be imposed. I have asked myself to what end, cui bono? Who will look at these deliberations? Once the shortlist has come out, will someone go back afterwards and ask why the commission arrived at that particular shortlist?Why should there be a record of the reasons they came to a particular short list which would necessarily involve reasons some people were not on it and others were? Who will consult the record and who will have the right to consult it? That is the big puzzle. If the two previous sections, as amended, are enacted eventually, these deliberations will be confidential and it will be a criminal offence to disclose them, except as permitted by the two previous sections, as amended. What I find difficult to understand is why it would be the case that the commission would be under a statutory obligation not merely to record who had applied to it and whom it had recommended but also its intervening deliberations. If that statutory duty is cast on it, it seems that it must serve some purpose. Given that there will be no accountability on the part of the commission for its deliberations, what purpose will the recording of deliberations serve?

The second thing that occurs to me about section 29 is that it is the first inkling we have had in the debate on the Bill so far of a distinction in procedure between applications made under section 39 for appointment to judicial office and a different, much narrower group of offices to which section 44 applies. Section 44 deals with vacancies in the judicial offices of the Chief Justice, the President of the Court of Appeal and the President of the High Court. The commission is obliged to keep a record of "expressions of interest received by it under section 44(1)". It then states, "and the particulars referred to in that section". In that context, what are the particulars referred to? They do not leap off the page as a particular category. When one looks at section 44(1), there do not appear to be particulars which require recording. What is meant by "particulars"? In case it is argued that the phrases "deliberations" and "recommendations" are more or less the same, I draw the Minister's attention to the provisions of section 44(4) which distinguish between deliberating and making a recommendation. I ask him to address these issues.