Michael McDowell (Independent) | Oireachtas source

I move amendment No. 86c:

In page 28, between lines 25 and 26, to insert the following:“Communication with person eligible for appointment to judicial office

41. No provision of this Act affects, limits or inhibits the right of the Government, or of the Minister or the Attorney General acting on the authority of the Government, to communicate with a person eligible for appointment to any judicial office with a view to establishing whether that person is willing to accept an appointment to such judicial office by the President acting on the advice of the Government.”.

This amendment seeks to insert a new section at this point in the Bill to state that no provision of the Bill when enacted affects, limits or inhibits the right of the Government, the Minister, or the Attorney General acting on behalf of the Government to communicate with a person eligible for appointment to any judicial office with a view to establishing whether that person is willing to accept an appointment to such judicial office by the President, acting on the advice of the Government. The purpose of this amendment is to make it clear that it frequently has been the case that the Government has asked the Minister or the Attorney General to communicate with a person eligible for appointment to any judicial office to establish whether that person was willing to accept an appointment to such office by the President on the advice of the Government. There is nothing wrong with that if there is some celebrated barrister or solicitor who is eminently suited.

What can happen and does happen, and from my experience it happened on more than one occasion, is that, anticipating a vacancy in a judicial office, the Government, through the agency of the Attorney General or the Minister for Justice and Equality, goes to an individual and asks that person whether he or she would be interested in appointment to the office. This is done with a view, first, to get the person to think about it; second, to indicate a willingness on the part of the Government to appoint that person in order that it would not be simply a suggestion that if the person was interested, he or she should put in an application and see how he or she got on; and third, to select somebody who was well suited or else somebody whom the Government thought might be shy about putting his or her name forward for appointment on the basis that it would require a good deal of effort to do it with no guarantee of success.

There is nothing wrong with such a procedure and in fact it has produced some of the most eminent judges on the Bench. Some of the most senior judges on the Bench have been approached in this way. What worries me is that this practice would be phased out or regarded as improper because it has been suggested in the Bill as constituted that all applicants should submit their application to the Judicial Appointments Commission and that canvassing disqualifies.

I presume the Minister does not have an objection in principle to acknowledging that this practice is perfectly legitimate and should not be excluded or prohibited in any sense by the passage of the Bill. If there is some principled objection to it, I would like to hear what it is, but as far as I am concerned, if the Government is thinking of making an appointment at this level, there is a certain reality to it all. Somebody has to think that he or she is likely to be appointed if he or she responds positively to this invitation. That is a good thing. An eminently qualified lawyer could be in a state of mind of wondering what to do with the rest of his or her career, whether to make an application to be a judge, and if he or she does so, what this Judicial Appointments Commission will make of the application, who else will be appointed with that lawyer, and whether he or she wants to go down that road. It is entirely different, however, if the Attorney General of the day indicates that, on the authority of the Government, he or she is inviting the judge to consider accepting an appointment by the Government.I want it to be clear in section 41. The Minister agrees with me that this practice is legitimate and will survive the enactment of this legislation as he intends it to finally appear, if it is enacted. If there is a problem with it, I would like to hear what the objection to it is in order that we can work out the underlying aims of the legislation. If it is designed to discourage such a thing from happening, I have a big problem with it. It is most inadvisable and will end up producing an inferior outcome to that which is possible if this practice is admitted to be legitimate and it is made clear that it will survive the passage of the legislation.