Michael McDowell (Independent) | Oireachtas source

That is the point. Therefore, it is not a matter for the commission to decide what it will keep a record of.Section 53, which concerns the keeping of records, deals with the preparation of:

(a) a statement setting out the selection procedures, and

(b) a statement of requisite skills and attributes.

Each of those statements has to be approved by the commission. Subsection (5) states:

In the preparation of the statement referred to insubsection (1)(a), the Procedures Committee shall, amongst other matters, have regard to-

[...](g) the need for the keeping of records in relation to each step of the selection procedures undertaken and the retention of documentation supplied to the Commission in the course thereof.

That is for the purpose of preparing a statement under that part of the Act.

This is a stand-alone provision which states that the commission shall - it is a mandatory duty - keep a record of its deliberations in addition to applications and recommendations. It occurs to me that if, as the Minister accepts, the decisions of the judicial appointments commission are themselves susceptible of judicial review, on discovery it would be possible to find out the deliberations of the commission in respect of individual candidates. It is not a very happy situation for people who apply, or for building up the confidence of those who apply, that somebody can apply for discovery and, for the purpose of making a case of bias or failure by the commission to follow its own criteria in making recommendations, may be able to sift through the records that are provided and then try to build a case that, say, it is not appointing enough women or is appointing too many middle-class people as opposed to other people to the commission, or whatever, and is failing to uphold its statutory duty, which is to take into account the need for diversity or something like that.

In that context, is it wise to require the commission to keep a record of its deliberations because deliberations are distinct from the decision to make a particular recommendation? If they are going to be recorded and if there is an independent, free-standing statutory duty to record them, I keep asking who is going to look at these records afterwards. Why are we requiring that the collective corporate thought process as to why one person should or should not be on the shortlist, rather than another, should be the subject of a record? I wonder about that.

As there is a distinction between section 39 and section 44, will the Minister indicate whether it is his intention to keep in the text of the Bill the requirement that all sitting judges of the superior courts who want to be considered for promotion from the High Court to the Court of Appeal or from the High Court and the Court of Appeal to the Supreme Court apply to the judicial appointments commission. This is something that the Minister at one stage indicated he was open to persuasion on, that is, that existing superior court judges should not be required to engage in some kind of beauty contest in front of a group of others. In my view, it has serious implications for their independence if they are looking over their shoulder at a group of laypeople to whom they must make a case for their own promotion. Is the Minister still sticking to the proposition that existing members of the Judiciary must all make applications, be interviewed, provide character references and submit evidence of their suitability to be appointed to higher judicial office? If it is still the Minister's intention to keep the distinction between section 39 and section 44, it raises questions about the whole architecture of this legislation.