Michael McDowell (Independent) | Oireachtas source

The problem with all of this is that we are faced with a situation where the Government is entitled to reject the three names recommended to it in respect, for example, of the appointment of an ordinary member of the Supreme Court. What is it to do when that happens? I do not see written into this Bill the phrase, "Sorry, try again". I do not see provision for an indication to the commission that the Government is unhappy with the three people nominated and that it requires the commission to readvertise the position or to look again at candidates 4, 5 and 6 to see if any of them might be suitable. With the greatest respect, I do not think that any of that is possible under this Bill. I do not think the Government is entitled to state that candidates 1, 2 and 3 on the list are not of interest to it for appointment to the Supreme Court and to ask the commission to look again at the remainder. I do not think there is any provision for interaction between the commission and the Government along those lines, which is a very serious problem. The Government is faced with three names which it has rejected or with which it is not happy, deeming the individuals involved not to be the best. It does not propose to appoint any of them to the Supreme Court but what it is to do then? Is it to communicate with the commission and ask it to look at candidates 4, 5 and 6? Is it to ask the commission to give it another three names until it is happy? No, because that would fly in the face of that the Minister says is the policy of this legislation. Is the commission to readvertise the post, throw all of the cards up in the air and see how they fall a second time? Perhaps more people will apply second time around but the commission might have no idea who the Government thought was better than those recommended and who would be acceptable to it.

This is very much the central problem with this legislation. If the Government has a prerogative to reject the three names suggested, there is absolutely no guidance or provision in the legislation for telling the commission to come up with other names. If the Government, in those circumstances, tried to remedy the situation by asking the Attorney General if there is anyone better that he or she thinks the Government should appoint and whether that person is available, the Minister is saying that this, at a minimum, is undesirable. He called this reverse canvassing and it seems to be something which he is not prepared to accept can happen because he keeps rejecting amendments to permit it to happen. What are we to make of this legislation? As already stated, if legislation is put to the test, the test that the courts apply is whether there is a reasonable constitutional construction which would save the Bill. The courts do not determine whether the provision means either A or B. If, on the face of it, the legislation looks like it means A but B is also a reasonable interpretation of it and if B is the constitutional interpretation of it, then under the double construction rule, the courts save the legislation and say that it means B. I am merely asking why, in those circumstances, the Minister is incapable of accepting any amendment which would allow the Government to exercise its discretion and to take the initiative in certain circumstances to identify a person it considers suitable and to determine whether that person is ready and willing to serve as, for example, an ordinary member of the Supreme Court. I cannot see why this legislation would not make such provision, except for two possible reasons. Either the Minister is unwilling to accept an amendment to that effect because it might look like a formal escape route for the Government from the judicial appointments commission process or, alternatively, this is a political decision on the part of the Government to keep up the pretence that the Government will, in effect, never appoint somebody who is not on the judicial appointments commission shortlist. Those two possibilities are equally reprehensible.

In the dying minutes of the debate on the previous occasion, I asked the Minister to state clearly whether the Attorney General would be entitled to inform the Government as to whether there were other people seeking judicial appointment who were not shortlisted.At an earlier stage in the debate the Minister intimated that he was minded to reconsider whether there could be an effective prohibition on the Attorney General making that information available to the Government. He stated towards the end of proceedings on the last occasion this was discussed. He said:

I thought I had made that clear. A reading of sections 27 and 28 makes it clear that members of the commission shall be bound by confidentiality. A member of the commission is the Attorney General. Therefore, the Attorney General will be bound by a similar stricture.

I need not remind the Minister or the House that the stricture in question is not merely a duty of confidentiality as one could be held criminally liable for its breach. We have come to a sorry pass. The Minister may be proceeding with this as a bluff. I do not not impute that he or the Department is doing so in bad faith. The programme for Government proposed that the shortlist would contain the least number of persons consistent with the Constitution and, in any event, no more than three. The purpose and dynamic of the Bill is to restrict the Government’s latitude,-----