Michael McDowell (Independent) | Oireachtas source

Amendment No. 86a reads: "In page 28, to delete lines 23 to 25." It refers to section 41(2) which reads: "Nothing in subsection (2) shall be construed as limiting the advice the Government

may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge." Amendment No. 86a is connected to amendment No. 86b, which makes it very clear that, instead of being in an obscure subsection, a new section should be inserted before section 41. Amendment No. 86b reads: "No provision of this Act affects in any way the function and duty of the Government, in advising the President on appointment to judicial office under Article 35 of the Constitution, to advise in accordance with its own judgment and preference the appointment of any person who is eligible to be appointed to such judicial office.”.To me, that is the important point. As I have pointed out on a couple of occasions in the course of this debate, the policy of this Bill is to make it extremely difficult for the Government to fail to appoint somebody nominated in a shortlist compiled by the judicial appointments commission. The means whereby which this created difficulty is sought to be created are manifold, but the most obvious ones are as follows. First, every current serving judge who is of the superior courts who is, by definition, capable of serving as a member of the Court of Appeal or the Supreme Court, if asked by the President of either of those courts, is required to submit his or her name for consideration and to be shortlisted by the judicial appointments commission no matter how often these vacancies arise. The Minister has made it clear in voting down a previous amendment which I have tendered, that he intends that it will not be possible in future for members of the Judiciary to indicate their willingness to serve by a simple letter to the Secretary of the Government, which is the current practice, without any further requirement of recommendation. For instance, if the position of President of the Court of Appeal or the position of Chief Justice becomes available, that instead of having all the Judiciary engage in a beauty contest by sending in applications to the judicial appointments commission, what happens at the moment is that they can simply indicate that they would be prepared to be appointed to the office without more writing to the Secretary of the Government who is an independent officer of the State who, presumably, would notify the Government that he had received such a communication. That is dignified, reasonable and sensible. The Minister has indicated that that is to be prohibited under the canvassing rubric and under the other provisions of this Bill, and is not to continue, which I think is a mistake.

I will only briefly refer to it but the second way in which the Government is to be prevented from appointing somebody other than a person recommended is to keep it in darkest ignorance as to what choices were made. I will make two observations about. First, it is entitled to know who is available and willing to be appointed. To say that the Government has a full constitutional prerogative to appoint anybody it wants, as section 40(3) suggests it might, while it is kept in a state of complete ignorance as to what the real potential field of appointees is actually constituted is to render the exercise of that constitutional prerogative very difficult.

The third thing is that the Attorney General, by being appointed to the commission, by taking part in its proceedings and by knowing who applied and who was not shortlisted, is placed in the most invidious position. The Cabinet may ask, "Is this the best we can do?" If that question is asked, the Attorney General must say that he or she cannot answer that question, although he or she would like to be able to tell the Cabinet that there were other people who, in his or her judgment and perhaps in the judgement of the Cabinet if it was to hear about it, would be far better than the shortlisted people. That, unfortunately, is part of the new Bill, as the Minister has confirmed.The Minister has indicated that he is with me on the two amendments that I have tabled. The Bill as it currently stands would make it extremely embarrassing for the Government to exercise its own prerogative by requiring it to fill out some kind of exam paper as to why it departed from the recommendation it received.

Lastly, there is the difficulty that it undermines the whole status of the judicial independence of our senior Judiciary to require them to constantly make applications to this judicial appointments commission for every vacancy that arises or every consequential vacancy that is created by the filling of a vacancy. The Minister has failed completely to tell us how they will be informed if they were shortlisted. He has also failed to tell us how it will be known that somebody was shortlisted but was unsuccessful at Cabinet. If these things are to be kept in the dark, the Government is like the crew of a submarine, operating below the surface but without any effective periscope.