Michael McDowell (Independent) | Oireachtas source

It does not give a reasoned explanation, so why are we even being invited to consider legislation in this form? Why are we asking a member of the sitting High Court, the Court of Appeal or the Supreme Court who is seeking an appointment or seeking to signal an appointment to any position in those courts to go through this meat grinder process, which requires, if they are appointed notwithstanding the views of this so-called commission, the writing of a reasoned explanation of the Government's decision not to appoint a candidate recommended by the commission?Let us suppose that 12 persons apply for a job in one of those courts and, typically, eight might be judges. Three people - one practising barrister and two judges - might be placed on the shortlist. As I pointed out on the previous occasion, this Bill is designed to prevent people from really knowing what happens. Let us also suppose that the Government believes that Mr. Justice Bloggs is a better appointee as Chief Justice than any of the three people chosen for inclusion on a shortlist by the commission. How could a reasoned explanation be given for that apart from stating that the Government thought he was more suitable? How could that amount to a reasoned explanation? Unless it stated that it had flipped a coin, it would not be possible to have a less reasoned explanation than to say that the Government believed the person appointed by it was more suitable than those on the shortlist.

If one did not identify the people on the shortlist but merely identified the appointee by means of a little paragraph in Iris Oifigiúil, somehow asserting their superiority over unnamed persons who were shortlisted, what, then, is this subsection all about? It is deeply offensive. It is so ridiculous that I wonder how it got there in the first instance. It is deeply offensive because it is designed for one thing only. The only motive for such a strange provision in a Bill is to make it deeply embarrassing for the Government not to accept the shortlist, to plunge the Government into a kind of internal crisis that rather than just saying that it prefers Mr. Justice Bloggs to the people on the shortlist, it must now engage in publishing a reasoned explanation as to why the particular judge it chose was better than three other judges who were recommended and give some reasons for that.

The undeniable and obvious inference to be drawn from the inclusion of that measure in this legislation is that it is designed to prevent the Executive from using its own discretion in cases where it thinks that is appropriate and disregarding what is, in effect, merely advice from an external body in the exercise of a constitutional function. That is the only possible reason for putting into Iris Oifigiúila reasoned explanation for one person getting a job rather than others is to make it difficult, embarrassing and controversial and, indeed, to impugn in ways the appointment it makes.