Michael McDowell (Independent) | Oireachtas source

A number of points arise from what the Minister and Senator Norris have said on amendment No. 86c.

First, it is becoming apparent that the Minister believes the terms of section 39 will be the sole method with which any judge can effectively be engaged at all in respect of an appointment. I believe that is the purpose of this Bill. What the Minister says does not shock me in the slightest or surprise me. I believe he believes section 39 is to be the sole and exclusive method for communication between the Government and eligible people as to their appointment to the Bench. He raised the question of the prohibition on canvassing. I do not know whether the present regime in which one indicates to the Secretary of the Government that one is willing to serve in respect of an appointment amounts to canvassing. If the Minister thinks it does, that worries me even more.

I refer to a central aspect of the legislation if, as the Minister implies, section 39 effectively is an exclusive measure and that this and no other way is how one will become a judge, and one will apply to the commission in the ordinary way, and we will come to the consequences of that in later amendments. If it is the case that this is to be the sole means of becoming a judge, in the interest of what the Minister calls a level playing pitch among applicants, that has serious constitutional implications. I agree with him that the term "promotional" is an unfortunate piece of shorthand, especially in respect of appointments of High Court, Court of Appeal and Supreme Court judges to either the next senior court or to a more senior position in their own court. I believe this issue is of fundamental importance. This amendment has been tabled to tease out the issue completely and flush out what this Bill is all about. If it is saying that this will be the only way in future that a judge can actually be made a judge at a different level or that an applicant can be made a judge and that the kind of communication to which I have referred here and which has happened to the great benefit of the Judiciary and of the Irish State would be inconsistent with the Act and that it would be inconsistent for that channel ever to be used in future with the passage of this Act, then there is a very serious constitutional question.

This is the point that I made before. The Minister seems to think I am repeating myself ad nauseam. If he says, and keeps pretending, that nothing in this Act prevents the Government from advising the President to appoint anybody who is eligible to a judicial appointment and if he keeps on using that tattered fig leaf as his constitutional defence while also stating there can be no communication between the Government and any candidate and that the Government may not be aware of who has actually applied to the commission successfully or unsuccessfully, then he is narrowing down the scope of what the Government can do. He is really asking the Government to play blind man's bluff. If the Government sees three names in front of it and decides it does not like the look of them, then what is it to do? Is it to tell the commission it did not think much of the commission's shortlist?