Seanad debates

Wednesday, 19 December 2018

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)


10:30 am

Photo of Michael McDowellMichael McDowell (Independent) | Oireachtas source

The Minister is saying it is a policy issue but I am asking what advantage is served by keeping the Government in the dark about who is able and willing to serve among the present Judiciary.

The corollary is the question as to the advantage of and permissible policy on keeping the Government ignorant of the choices available to it. I do not remember in any of the submissions of the Bar Council of Ireland or the Judiciary a suggestion that it would be impossible for the Attorney General to inform the Government of those who had been turned down for a short-listing. I never came across that suggestion but that is what the Minister is coming up with now. He said I came up with a fanciful idea of the Attorney General being taken away in handcuffs from a Cabinet meeting because he had breached the confidentiality duty. If the holder of the Attorney General's office is duty bound to uphold the law, there is no question of anybody being arrested or dragged away in handcuffs; it is simply a matter of upholding the laws of the State. That is what the Attorney General is bound to do. If it becomes a criminal offence for the Attorney General to say a certain judge is an excellent candidate and has been turned down on four occasions by the commission, even if said in the secrecy of the Cabinet room, the Attorney General will not make the statement in the first instance and, by means of the threat of a criminal sanction, the Government will be deliberately kept in the dark as to the extent of its options and the true situation pertaining to the transactions related to the commission.

It is well and good for the Minister to say it is a matter of policy that the Government should be kept in the dark on these issues. It is not a matter of policy. I asked for an explanation as to what good would be served by keeping the Government ignorant of those who are ready and willing to serve among the Judiciary but who are not short-listed. I have not heard any good reason advanced even though the Minister spent some time replying to me when I posed the question to him. The reason I suggest he did not answer my question is that there is no answer. There is no coherent answer whereby he could stand up in public and say it is desirable that the Government should not know the names of any other persons among the present Judiciary who are ready and willing to serve, and that this is consistent with the duty of the Government to make the best decisions it can, in its own judgment, when filling the positions.

The Government has a prerogative in this matter that cannot be circumscribed by legislation. It is entitled to know what choices are lawfully available to it. The Minister has included two subsections indicating the Government is entitled to make a completely separate decision but he has also included a series of provisions to make it almost impossible for the Government to do that because it would not know at a Cabinet meeting whether a particular judge was available. I am proposing a very simple amendment that would enable sitting members of the Judiciary to signal their availability without prejudice to the activities of the commission or the shortlist of the commission in order that the Government could assess the quality of the shortlist it is receiving. If one receives a shortlist of candidates, marked one, two and three, one cannot really know whether they are the best available unless one knows who they were chosen from. It is like announcing the winner of a Eurovision Song Contest without having heard any of the songs. One song would be announced to be the winner — it would not be a contest at all.


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