Michael McDowell (Independent) | Oireachtas source

It gives the Government some basic information and advice and makes explicit provision for where it is unhappy with the commission's recommendations. That is all it is designed to do. If it is rejected, it is clear what the Government is trying to do with this legislation. It is trying to say to future Governments that they may never exercise their own constitutional prerogative and discretion, except with the greatest difficulty and playing a game of blind man's buff as to the factual situation that faces it.

I am happy that the Minister has confirmed that the Attorney General will not be able to disclose the unsuccessful candidates to the Government because I believe that would be unconstitutional but I am not happy that he is signalling that any steps taken by the Government to establish a person who has not been shortlisted to it are undesirable.I do not know why this should be the case. Persons who are eligible for a judicial appointment and who express an interest are entitled at some stage to have the Government made aware that they are constantly being rejected. As the Bill operates, or is intended to operate, the Government will never know that Mr. Justice or Ms Justice Bloggs has applied constantly for the past five years and will never see the shortlist. It will be left in the exact same position of wondering whether Mr. Justice or Ms Justice Bloggs is interested in the appointment or not. We will not know, and the Minister has crafted this legislation to ensure we never know because the only way Ms Justice or Mr. Justice Bloggs can show an interest is to apply to the commission, and the Government will not be entitled to know that fact.

I am not accusing the Minister or his officials of this, but there is a certain intellectual arrogance that this commission should know better than the Government and will probably make wiser choices than the Government as to who should be appointed. That lies at the back of this proposal. The Minister, Deputy Ross, has constantly said he wants to take the decision away from the Government and away from the hands of politicians. Surely it must be wrong, however, that an eminent member of the Judiciary could be applying for five or seven years for appointments within the Judiciary and the Government could never know that and never know that that person was being excluded from the shortlists it is receiving. This is what the Minister is deliberately putting in place, and there is no escaping this. He cannot fudge this one. What possible good is served by providing that someone who is ploughing away in the courts, doing his or her job as a judge and impressing the public never features on a shortlist?

Another feature of this legislation that worries me is that the Government will be faced with the same shortlist again and again. I ask the House to imagine the following scenario, which is within the contemplation of this legislation. If the Government receives a shortlist ordered according to the commission's preference and it goes for the commission's third preference, it is by definition saying it is not attracted to appointing No. 1 or No. 2 in preference to No. 3. If it does appoint No. 3, however, No. 1 or No. 2 may be thrown at it again and again on shortlists, and at the expense of people whom the Government might be much happier to appoint, and the Government is kept in ignorance of this fact. Let us be logical about this for a second. If the commission were to recommend three candidates, A, B and C, in the order No. 1, No. 2 and No. 3, and C were appointed, would it exclude A and B at its next sitting or when the next vacancy in judicial appointments arises? Would this be fair? Given that the Government did not seem to be interested in A and B the last time, would the commission decide not to repeat the recommendation? That is one scenario. Another is that, given that the Government went for No. 3 on the previous occasion and that, logically, the commission thought A and B were better candidates, it would short-list A and B and put it back to the Government yet again.